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ABF Freight System, Inc. v. Dugger

Court of Appeals of Arkansas, Division I

March 13, 2019

ABF FREIGHT SYSTEM, INC., and ArcBest Corporation, Appellants
Byron DUGGER and Death and Permanent Total Disability Trust Fund, Appellees

Page 671


         Wright, Lindsey & Jennings LLP, Little Rock, 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

Page 672

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 ...

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