FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
Giles & Matteson, L.L.P., by: Greg Giles, for appellant.
M. Ryburn, for appellees.
Abramson and Whiteaker, JJ., agree.
J. GLADWIN, JUDGE
Arkansas Workers' Compensation Commission (Commission)
denied appellant Cheri Stoker's claim for additional
medical testing and treatment, finding that they were not
reasonably necessary for the compensable medical injuries
Stoker sustained on December 5, 2014. In making its decision,
the Commission relied on Dr. Steven Cathey's report of
the independent medical examination (IME) he performed.
Stoker contends on appeal that the IME should not have been
admitted into evidence and that the Commission erred by
relying on it. We affirm.
worked as a driver and trainer for appellee Thomas Randal
Fowler, Inc., a trucking company in Texarkana, Arkansas, when
she sustained compensable injuries to her neck, back, and
right knee on December 5, 2014. Her injuries were the result
of her truck being hit from behind after she had unbuckled
her seat belt in preparation for delivering a package. Stoker
was treated over the course of a year, received an IME, and
was seen by Dr. Pierce Nunley after the Commission granted
her change-of-physician request. When Dr. Nunley recommended
additional testing and treatment on December 17, 2015,
appellee controverted Stoker's claim.
June 2, 2016 hearing before the administrative law judge
(ALJ), Stoker's counsel objected to the admission of the
IME report prepared by Dr. Cathey. Counsel argued that Stoker
had not been informed that Dr. Cathey was to perform an IME
and that Stoker went to the appointment under the assumption
that she would be medically treated. Counsel argued that Dr.
Cathey's report should be excluded because Stoker did not
give proper or informed consent. Counsel further argued that
Stoker was not provided through discovery the introductory
letter mentioned in Dr. Cathey's report. At the close of
the hearing, the ALJ posed more questions concerning the IME,
including whether appellee's counsel had seen the
introductory letter mentioned in Dr. Cathey's report.
Counsel stated that he had tried to obtain the letter but
that his "adjusters had changed up, " and he had
never received it. Stoker's counsel also stated that had
he been given notice, he would have objected to his
client's seeing Dr. Cathey. The ALJ took under advisement
the issue of the report's admissibility. The ALJ also
noted for the record that Respondent's exhibit 2 was a
surveillance video of Stoker that he would view following the
testified about the circumstances of the automobile accident
that resulted in her compensable injuries on December 5,
2014. She said that she had not been having any neck problems
before the accident; but since the accident, she could not
turn her head "right all the way to turn to look
back" when driving. She also said that she gets
"really bad headaches" three to four times a week
and that she had to "sleep kind of cock-eyed" at
night. She said that since the wreck, she had muscle spasms
down her arms and legs, in the front of her legs, and in her
back and neck. She complained that she did not "have a
grip" in her left hand.
said that after she went to the emergency room following the
wreck, she was sent to a company doctor for follow-up
care-HealthCare Express (HCE). She was prescribed medication
and given some restrictions for work, but no light-duty work
was available. She said that HCE prescribed physical therapy
along with medication, and an MRI was ordered, after which
HCE "wanted [her] to see a neurosurgeon." She said,
however, that she was sent to an orthopedist, Dr. Dwayne
said that Dr. Daniels ordered a nerve-conduction study and
that he also talked about "some injections." She
testified that Dr. Daniels's progress note was incorrect
in stating that she had previously had an MRI of her neck and
back, and she stated that the MRI was done only on her neck.
She stated that Dr. Daniels recommended that she see a
neurosurgeon for her neck and that he had recommended many
times that she receive epidural steroid injections. She said
that she had never received any injections in her neck and
claimed that as she received therapy and used the TENS unit,
her symptoms where somewhat relieved but were not totally
resolved. In spite of the therapy and the TENS unit, she said
that she still had continuing headaches, pain, and spasms and
was unable to use her left arm and hand. She explained that
when she tried to use her left arm or hand, she dropped
anything over ten pounds and her hand shook and spasmed.
testified that after the functional capacity evaluation
(FCE), she followed up with Dr. Daniels, and he "thought
[she] still needed to see a neurosurgeon and to continue with
additional therapy." She said that there was an
appointment scheduled with Dr. Cathey, and she believed that
she would receive from him the epidural steroid injections
that Dr. Daniels had suggested. She received a letter from
Dr. Cathey "on Friday to be there on Monday morning at
8:00." Along with the letter was a form for her to fill
out that asked for her height, weight, address, and the like.
When she arrived at Dr. Cathey's office, she was not told
she was there for any reason other than for medical
treatment. She said that Dr. Cathey examined her for eight to
ten minutes, that his hand "was shaking just as bad as
mine was, " and that he touched her left hand and put
his hand on the back of her neck for a second. She said that
he then showed her the MRI of her neck and talked about it.
He told her that he was not recommending any treatment. She
said that she had understood that the FCE gave her a
ten-pound weight limit and no lifting above her head-
sedentary restrictions. She testified that when she was
discharged by Dr. Cathey, she was given no restrictions or
limitations and was told that she could return to full-duty
work. She said that she did not agree with that. She also
said that she signed papers on her way out of Dr.
Cathey's office, but she did not read them first. She
said that she had not been aware at that time that Dr. Cathey
had performed an IME.
said that she understood she was to return to Dr. Daniels
after seeing Dr. Cathey. While she was driving to Dr.
Daniels's office, his nurse called and canceled her
appointment. She said that even though her physical therapy
had not been completed, Dr. Daniels had placed her at maximum
medical improvement (MMI). She said that she continued to
receive physical therapy after Dr. Cathey's appointment
and that she ...