FROM THE ARKANSAS WORKERS COMPENSATION COMMISSION [NO.
Lindsey & Jennings LLP, Little Rock, by: Lee J. Muldrow and
Gary D. Marts, Jr., for appellants.
Davis, for appellee Byron Dugger.
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 Commissions (Commission) opinion
affirming and adopting the administrative law judges (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. Wilsons care. A permanent total disability finding was
accepted, for which appellee receives permanent indemnity
benefits. The costs of appellees medical care through the
surgery was paid for by appellants.
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
treatment, performing surgery on appellee on April 13, 2015.
Appellees 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 CMMSs belief that ArcBest owed it $ 21,332.86 for
conditional payments it made on appellees 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 [appellees] 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 appellees 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.
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.
Appellee gave Dr. McCarthy his insurance information—
Medicare and Physicians 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
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 ...