APPE
AL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION
[NO. F408385]
Wright, Lindsey & Jennings LLP, by: Lee J. Muldrow and
Gary D. Marts, Jr., for appellants.
Gary
Davis, for appellee Byron Dugger.
WAYMOND M. BROWN, JUDGE.
Appellants
ABF Freight System, Inc. (ABF), and ArcBest Corporation
(ArcBest), employer and third-party administrator,
respectively, appeal from the Arkansas Workers'
Compensation Commission's (Commission) opinion affirming
and adopting the administrative law judge's (ALJ) opinion
finding ABF responsible for medical care appellee Byron
Dugger received in 2015, following his 2004 compensable
injury. The appellants' sole argument on appeal is that
the Commission erred in awarding appellee his expenses for
medical treatment that was not authorized because appellee
failed to meet the mandatory preauthorization requirement of
Commission Rule 30. We reverse.
Appellee
suffered a compensable injury to his back on June 28, 2004.
He was treated by Dr. John Wilson, whose treatment included
surgery. Appellee reached maximum medical improvement on
February 16, 2005, though he remained under Dr. Wilson's
care. A permanent total disability finding was accepted, for
which appellee receives permanent indemnity benefits. The
costs of appellee's medical care through the surgery was
paid for by appellants.
In
2015, appellee contacted Dr. Wilson when he again began to
experience back pain. Dr. Wilson advised appellee that he had
retired, referring appellee to his former partner, Dr.
Kathryn McCarthy. Dr. McCarthy subsequently took over
appellee's treatment, performing surgery on appellee on
April 13, 2015. Appellee's medical bills arising from the
treatment were paid by Medicare. ArcBest was notified by
letter from the Centers for Medicare and Medicaid Services
(CMMS) on April 13, 2017, of CMMS's belief that ArcBest
owed it $21, 332.86 for conditional payments it made on
appellee's behalf for which ArcBest had "primary
payment responsibility[.]" CMMS notified appellee, by
letter dated April 20, 2017, of its attempt to recover said
conditional payments from ArcBest, attaching a copy of its
April 13, 2017 letter to ArcBest thereto. Appellee was
advised that he need not take any action at that time. At
some point, appellants contested the payments and appellee
obtained an attorney, though neither date is clear from the
record.
According
to the January 10, 2018 prehearing order, the issues to be
adjudicated were whether appellee received a valid referral
from Dr. Wilson to Dr. McCarthy and whether the treatment
appellee received from Dr. McCarthy was "the result of a
valid referral, was authorized, and was reasonably necessary
in relation to [appellee's] compensable injury."
That an employee/employer relationship existed at the time of
injury; that appellee sustained a compensable lumbar injury
on June 28, 2004; that appellee's healing period ended on
or about February 16, 2005; and that appellee was permanently
and totally disabled and presently receiving permanent
indemnity benefits from ArcBest was stipulated to.
A
hearing was held on February 28, 2018. Appellee, who was
sixty-nine years old at the time of the hearing, testified
that he was treated by Dr. Wilson who performed an L4-5
decompression surgery and an L5-S1 fusion surgery. Dr. Wilson
told appellee the "surgery would last 10-15 years if
[appellee] took real good care of [his] back, so [he] tried
to follow those instructions." He saw Dr. McCarthy for
the first time in March 2015. He had been referred to her by
Dr. Wilson after he informed appellee that he had retired.
Appellee denied that he had hurt his back in the interim
between his surgery by Dr. Wilson and his referral to Dr.
McCarthy.
Appellee
gave Dr. McCarthy his insurance information-Medicare and
Physician's Mutual-and advised that he had "had two
prior surgeries and [he] worked for ABF" when asked how
he hurt his back. When asked if ABF had workers'
compensation insurance, he said yes. Dr. McCarthy later
performed an L4-5 fusion surgery in April 2015.
When
appellee "realized [he] needed help, [he] needed a
doctor," he contacted Dr. Wilson. He "did not feel
like" he needed to get a change of physician
"because [he] had communicated with Dr. Wilson and
gotten a referral[.]" It had been "quite a
while" since appellee last saw Dr. McCarthy as he
"[felt] like [he had] recovered from the surgery"
though he "still had ongoing problems with [his]
back." He manages said unidentified problems with
over-the-counter medications.
Appellee
had not spoken with anyone at ABF since 2005 and went
"many years" without communicating to Dr. Wilson
"because [he] didn't need anything."
Furthermore, "[s]ince the beginning, first injury, [he
had] never contacted ABF when [he] needed a doctor."
Appellee had not contacted ABF in 2015 when he contacted Dr.
Wilson. Neither he nor his attorney had asked ABF or the
Commission to change physicians from Dr. Wilson to Dr.
McCarthy; "he didn't know [he] had to."
"No one . . . contacted [appellee] in the last couple of
years and asked [him] to pay anything over and above what was
already paid in this case." His bills had either been
paid by Medicare or Physician's Mutual. He had received a
letter from CMMS regarding the 2015 bills and was concerned
that "at some point in the future, [he] could be
contacted by Medicare with a request to reimburse it for
payments made."
Travis
Sharp, a "work comp examiner" for ArcBest,
testified that he was not contacted by anyone with any
medical provider-including Dr. McCarthy or St. Vincent
Infirmary-requesting authorization for treatment in 2015. He
agreed that a bill would not be sent to him until after
treatment had been performed. He admitted that ArcBest has
"a diary system" for purposes of reviewing a
claimant's files and that he did not know the frequency
with which a file was reviewed. Noting that another person
was assigned to appellee's claim, whom he did not recall
if she was "disengaged from the file at some point in
time"[1]-which he stated "could be possible .
. . to happen on occasion"-he stated that he did not
know the specific date on which appellee's claim was last
reviewed before 2015. He did not know whether the file was
reviewed in 2015 before appellee had his surgery.
Sharp
went on to testify that appellee's file "could have
been reviewed in preparation for this hearing" and that
he "would have been the person conducting those
reviews" and that he "would've reviewed
[appellee's] file before March 2015" but he [could
not] say when that review occurred without his notes."
Said review would have included a determination of whether
action needed to be taken. He "[doesn't] search out
medical records" and "wasn't searching out
medical records for [appellee] because [he] had no indication
that he was treating." Having taken over the file in
2012, he did not know if, between 2004 and 2012, someone had
contacted Dr. Wilson's office to determine whether
additional medical records had been generated, but he
"had no reason to believe" that someone had done
so. He admitted that it was "a possibility that if [he]
had contacted Dr. Wilson's office, [he] may have found
out that, in fact, he was retiring and had had [sic] referred
[appellee] to be seen by Dr. McCarthy." He further
admitted that they "might have contacted Dr. McCarthy to
find out whether or not she was treating" appellee if
they ...