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Stoker v. Thomas Randal Fowler, Inc.

Court of Appeals of Arkansas, Division I

November 8, 2017

CHERI STOKER APPELLANT
v.
THOMAS RANDAL FOWLER, INC., AND PROTECTIVE INSURANCE COMPANY/BALDWIN AND LYONS, INC. APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G409736]

          Moore, Giles & Matteson, L.L.P., by: Greg Giles, for appellant.

          Jason M. Ryburn, for appellees.

          Abramson and Whiteaker, JJ., agree.

          ROBERT J. GLADWIN, JUDGE

         The 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.

         I. Facts

         Stoker 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.

         At the 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 hearing.[1]

         Stoker 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.

         Stoker 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 Daniels.

         Stoker 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.

         Stoker 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.

         She 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 ...


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