Byars Construction Co. v. Byars

34 S.W.3d 797, 72 Ark. App. 158, 2000 Ark. App. LEXIS 807
CourtCourt of Appeals of Arkansas
DecidedDecember 20, 2000
DocketCA 00-192
StatusPublished
Cited by9 cases

This text of 34 S.W.3d 797 (Byars Construction Co. v. Byars) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byars Construction Co. v. Byars, 34 S.W.3d 797, 72 Ark. App. 158, 2000 Ark. App. LEXIS 807 (Ark. Ct. App. 2000).

Opinion

JOHN B. Robbins, Chief Judge.

Appellant Byars Construction Company appeals the award of benefits by the Workers’ Compensation Commission to appellee Clifton Byars. Specifically, appellant raises four points on appeal: (1) that the Commission erred in determining that Ark. Code Ann. § ll-9-514(a)(l) and (2) (Repl. 1996) became void in September 1995; (2) that there is no substantial evidence to support the Commission’s finding that Dr. Saer was an authorized treating physician through a referral; (3) that there is no substantial evidence to support the Commission’s award of additional temporary total disability benefits; and (4) that there is no substantial evidence to support the findings or award of payments in reference to a Department of Human Services lien. We reverse as to points (1), (2), and (4); we affirm as to (3).

On April 19, 1996, appellee, who worked as a carpenter, sustained an admittedly compensable injury to his back, a compression fracture at T7, when the scaffolding upon which he was standing collapsed causing him to strike his back on a ledge. He was treated in Baptist Hospital’s emergency room and was released. Thereafter, appellee was treated conservatively by Dr. Yocum and was paid temporary total disability during that period. Dr. Yocum released appellee to return to work as of June 17, 1996.

Appellee suffered recurring and more severe back pain in October 1996, for which he received additional treatment and medication from Dr. Yocum. Appellant sent appellee to Dr. Rutherford, who thought that appellee was embellishing his symptoms with regard to the healing fracture. However, Dr. Rutherford sent appellee for a bone scan. Results from the bone scan substantiated appellee’s complaints, and Dr. Rutherford stated that appellee had indeed not yet healed. Dr. Rutherford continued with conservative treatment through December 23, 1996, when he released him to return to work.

Dr.'Yocum released him from his care on January 24, 1997, telling appellee to come back as needed. Dr. Yocum assigned a ten-percent permanent physical impairment rating to the body as a whole, which appellant paid. Dr. Rutherford opined on March 24, 1997, that appellee had reached maximum medical improvement, again releasing appellee from his care.

Because his symptoms persisted, on November 4, 1997, appel-lee sought on his own initiative the care of orthopedist Dr. Cash. Because Dr. Cash thought that appellee was a candidate for a spinal fusion, he referred appellee to Dr. Saer. In a letter to Dr. Cash from Dr. Saer on January 30, 1998, Dr. Saer thanked Dr. Cash for asking him to evaluate appellee, and stated that he thought the pain was related to the original workplace injury, recommending an exercise program and additional studies at that time. In May 1998, Dr. Saer reviewed the studies performed on appellee and discussed options with appellee, concluding that a posterior stabilization and fusion surgery was a viable option to relieve his pain. The surgery was performed on September 2, 1998. On October 9, 1998, Dr. Saer opined within a reasonable degree of medical certainty that the work injury was the major cause for the need for surgery. Appellee was told by Dr. Saer that he could begin increasing his activities on February 16, 1999. Appellee stated that the surgery improved his physical condition.

It is undisputed that appellee had received notice of the procedures to follow if he wanted to change physicians and that he had not requested a change of physician when he went to Drs. Cash or Saer. Appellant contested payment for Dr. Saer’s treatment and surgery, alleging that Dr. Saer was not an authorized treating physician, that therefore the surgery was unauthorized, and that any temporary total disability associated with the surgery was not compensable.

After a hearing before the Administrative Law Judge, the ALJ agreed that the treatment was unauthorized and found that appellee was responsible for those costs; found that the Department of Human Services’ lien on benefits was extinguished and held for naught; and found that appellee was entitled to additional temporary total disability commencing upon the date of surgery and ending on February 16, 1999, regardless of whether the treatment was from an authorized physician.

Both appellant and appellee appealed to the Commission, which affirmed in part and reversed in part the ALJ’s decision, making the following findings: (1) that the managed care system as established in September 1995 effectively voided the statutory provision found in Ark. Code Ann. § ll-9-514(a)(l) and (2) (Repl. 1996), and that because there was no evidence that appellant had contracted with a certified managed care entity, appellee could chose any physician for reasonable and necessary treatment; (2) that Dr. S’aer’s treatment was the result of a referral from an authorized treating physician, Dr. Cash, and was therefore not a change of physician; (3) that whether treatment is authorized is irrelevant to an award of temporary total disability, and thus appellant was liable for that period of temporary disability associated with the reasonable and necessary surgery; and (4) that appellant was to reimburse the Department of Human Services for any monies expended on behalf of appellee. This appeal resulted.

The standard of review with regard to appeals from the Workers’ Compensation Commission has been oft-stated. In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, the appellate court reviews the evidence in the light most favorable to the Commission’s findings and affirms if the findings are supported by substantial evidence. Woodall v. Hunnicutt Constr., 67 Ark. App. 196, 994 S.W.2d 490 (1999). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). We wifi not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Id.; see also Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).

First, appellant argues that appellee did not follow the change-of-physician rules and that the Commission erred in concluding otherwise. Arkansas Code Annotated section 11-9-514 (Repl. 1996), entitled “Medical services and supplies-Change of physician,” set forth the applicable law, stating at subsection (a):

(a)(1) If the employee selects a physician, the Workers’ Compensation Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.

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Bluebook (online)
34 S.W.3d 797, 72 Ark. App. 158, 2000 Ark. App. LEXIS 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byars-construction-co-v-byars-arkctapp-2000.