Tempworks Management Services, Inc., and Amtrust North America v. Gary Jaynes , 2023 Ark. App. 147 ( 2023 )

Cite as 2023 Ark. App. 147ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-21-565
TEMPWORKS MANAGEMENT Opinion Delivered March 15, 2023
SERVICES, INC., AND AMTRUST
NORTH AMERICA APPEAL FROM THE
APPELLANTS ARKANSAS WORKERS’
COMPENSATION COMMISSION
V. [NO. G703512]
GARY JAYNES AFFIRMED
APPELLEE
BRANDON J. HARRISON, Chief Judge
We’ve seen this compensable injury before. Gary Jaynes is a master electrician. In
February 2020, we affirmed the Full Commission’s findings after a September 2018
hearing that Jaynes was entitled to an 11 percent impairment rating to his body as a whole,
and a 10 percent wage-loss disability, for a compensable injury he suffered 8 March 2017
while working in a muddy ditch on Weyerhaeuser property. Tempworks Mgmt. Servs., Inc.
v. Jaynes, 2020 Ark. App. 70, 593 S.W.3d 519. Jaynes’s feet sank into the mud. As he
tried to pull his left foot out of the mud, he found he could not raise his legs. He felt
something “pop” in his left hip. He had to be helped out of the ditch, and has not been
the same since. He was then fifty-five years old.
In November 2020, the Commission heard Jaynes’s request for temporary total
disability benefits for five weeks in March and April 2019 he spent recovering from
lumbar decompression surgery. His employer, Tempworks Management Services, Inc.,
appeals the Commission’s decision that medical treatment provided by Dr. Scott
Schlesinger, a neurosurgeon, was reasonably necessary and causally related to Jaynes’s
compensable injury, entitling Jaynes to temporary total-disability benefits for that healing
period. We affirm.
Tempworks raises two issues. First, it challenges the Commission’s finding that Dr.
Schlesinger’s treatment was reasonably necessary and related to Jaynes’s injury. Dr.
Schlesinger opined that the problems he treated beginning in August 2018 were more
likely than not related to Jaynes’s March 2017 injury. Tempworks offered additional
medical records that were asserted to show otherwise. The administrative law judge (ALJ)
took Tempworks’ view of the conflicting evidence. The Full Commission, though,
favored Dr. Schlesinger’s.
We discussed the standard of review for a similar finding in USA Truck, Inc. v.
Webster:
This court views the evidence and all reasonable inferences in the
light most favorable to the Commission’s findings and affirms if supported
by substantial evidence. Substantial evidence is that which a reasonable
mind might find as adequate to support a conclusion. The question is not
whether the evidence would have supported findings contrary to the ones
made by the Commission; rather, it is whether there is 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. Credibility questions and
the weight to be given to witness testimony are within the Commission’s
exclusive province.
It is also within the Commission’s province to weigh all the medical
evidence, to determine what is most credible, and to determine its medical
soundness and probative force. We have long held that the Commission’s
decision to accept or reject medical opinions and how it resolves conflicting
medical evidence has the force and effect of a jury verdict. In weighing the
2
evidence, the Commission may not arbitrarily disregard medical evidence or
the testimony of any witness. But when the Commission chooses to accept
the testimony of one physician over that of another, the appellate court is
powerless to reverse the decision.
2020 Ark. App. 236, at 4–5, 599 S.W.3d 368, 371-372 (citations omitted).
Since about a week after Jaynes’s injury, he has sought treatment for persistent left
thigh pain and numbness. The results of an electrodiagnostic evaluation Dr. Miles
Johnson performed in September 2017 supported a finding that the pain had a neurogenic
origin. Dr. Johnson’s report was in the record of the previous hearing that concluded in
September 2018. So were opinions from other doctors who concluded Jaynes had not
suffered a permanent impairment. The Commission noted the conflicting medical
evidence and gave Dr. Johnson’s conclusions more weight. We affirmed. Jaynes, 2020
Ark. App. 70, at 5, 593 S.W.3d at 523. We held that objective medical findings—and Dr.
Johnson’s findings in particular—supported the Commission’s finding that Jaynes had
suffered a permanent impairment and wage loss. Id.
The precise source of Jaynes’s pain was not identified. In Dr. Johnson’s opinion,
the electrodiagnostic results were “consistent with an incomplete left femoral neuropathy
versus possible lumbar radiculopathy, approximate L2-L4 levels.” A lumbar MRI from
June 2017 had shown some degenerative changes, but no disc herniation. An
electrodiagnostic study by a different doctor in June 2018 found “[a] mild excess of
polyphasic units . . . in a single L2/3/4-innervated muscle” but “no convincing
electrophysiologic evidence of lumbosacral radiculopathy [or] focal neuropathy[.]”
Jaynes’s frustration with the failure to identify or treat the source of his pain is
documented throughout the record. Dr. Steven Cathey, a neurosurgeon, met with Jaynes
3
in July 2017 after reviewing the MRI. He noted that Jaynes and his family seemed
“understandably frustrated as there does not appear to be a remedy to the patient’s current
symptoms.” Id. A year later, Dr. C. Lowry Barnes noted that Jaynes was “extremely
upset that no one can find his problem.”
Jaynes continued to look for someone who could. Without consulting his
attorney, he presented to Dr. Schlesinger’s spine clinic in August 2018. He underwent a
new lumbar MRI August 6. The results were consistent with Dr. Johnson’s previous
electrodiagnostic report: Dr. Schlesinger interpreted the images as abnormal with a
finding of “Probable left L2-3 neural foraminal disc protrusion with probable left L2 nerve
root compression[.]” A radiologist concurred. Jaynes received some relief from selective
nerve-root block spinal injections at that level. An MRI conducted a few weeks before
the March 2019 lumbar decompression surgery showed no significant change. The
surgery was intended to correct that issue. An electrodiagnostic study conducted in
January 2020, after the surgery, suggested “moderate, subacute on chronic, left L2 and L3
radiculopathies with evidence of ongoing denervation”—again consistent with Dr.
Johnson’s 2017 report. The Commission found Dr. Schlesinger’s causation opinion
credible and “corroborated by the probative evidence of record.” Fair-minded persons
with the same facts before them could have concluded, as the Commission did, that the
surgery was reasonably necessary and related to Jaynes’s injury.
Second, Tempworks argues Dr. Schlesinger’s treatment was not “authorized
medical treatment” under Ark. Code Ann. § 11-9-514 (Supp. 2021) because Jaynes had
received an order changing his authorized treating physician to one Dr. Knox in 2017,
4
and Dr. Knox did not refer him to Dr. Schlesinger. Briefly, Ark. Code Ann. § 11-9-
514(c)(1) requires an employer or insurance carrier to deliver a Commission-approved
notice to the employee “which explains the employee’s rights and responsibilities
concerning change of physician.” Unauthorized medical expenses incurred after the
employee has received the notice are not the employer’s responsibility. Id. § 11-9-
514(c)(3). But if the employee is not furnished a copy of the notice, the change-of-
physician rules don’t apply. Id. § 11-9-514(c)(2).
We discussed those statutes—and our duty to strictly construe them—in Delargy v.
Golden Years Manor, 2014 Ark. App. 499, 442 S.W.3d 889. In Delargy, the claimant
testified she had “read and signed” the notice specified in section 514(c), Commission
Form AR-N. Id. at 2, 442 S.W.3d at 890. The Commission found that her medical
treatment from one doctor was unauthorized. Our opinion implies she had received a
change-of-physician order; we noted that “the actual signed Form AR–N is neither in the
abstract nor in the record (neither is the change-of-physician request).” See id. In any
event, we held that substantial evidence did not support the Commission’s decision that
the treatment was unauthorized, because the requirements for “receiving” Form AR-N
“are statutory in nature” and we must strictly construe them. Id. at 2–3, 442 S.W.3d at890–91. We reversed because there was no evidence the employer had complied with
those provisions.
Tempworks asserted in a pre-hearing brief that “Dr. Schlesinger’s treatment was
not authorized medical nor was the medical ordered by Dr. Knox, who is the Claimant’s
5
treating physician.” However, Tempworks abandoned that argument at the November
2020 hearing, conceding Jaynes had not been provided with a Form AR-N:
THE COURT: Has there been an argument made that the medical
treatment is not authorized?
COUNSEL: No. It’s not reasonable and necessary. There’s no
Form N. They did ask for a change of physician, but
there is no Form N that was provided.
THE COURT: No Form N? Okay.
COUNSEL: So it would be straight reasonable and necessary.
The ALJ, it seems, rejected this limitation. Despite the conceded absence of any Form
AR-N, it found Jaynes “obviously was aware of his [change-of-physician] rights and
responsibilities” since he had petitioned for a change of physician, and found that the
change-of-physician order had provided Jaynes with adequate notice “of his statutory
[change-of-physician] rights and responsibilities—as well as his right to appeal the order if
he felt ‘aggrieved’ by it.”
The Full Commission did not affirm those findings. It noted Tempworks’
concession that no Form AR-N was provided. Citing Delargy, supra, it found Jaynes was
free to seek reasonably necessary medical treatment from Dr. Schlesinger because “[i]f
there is not a signed and delivered Form AR-N in the record before the Commission,
then the claimant is not bound by the change of physician rules.”
In a previous appeal involving the change-of-physician rules and Form AR-N, we
noted that “to preserve an issue for appellate review in a workers’ compensation case, it is
a party’s responsibility to present the issue to the Commission and obtain a ruling.” St.
6
Edward Mercy Med. Ctr. v. Chrisman, 2012 Ark. App. 475, at 6, 422 S.W.3d 171, 175.
The employer had admitted a copy of the signed AR-N form; but it made no argument
about the change-of-physician rules. Id. at 8, 422 S.W.3d at 176. Where neither the ALJ
nor the Full Commission made any ruling about those points either, the points could not
be raised on appeal. Id.We have not found a decision where, like our facts here, the appellant attempted to
challenge the Commission’s decision to reverse a ruling the ALJ made on his own
initiative on an issue the appellant had expressly waived during the hearing before the ALJ.
Assuming Tempworks can raise the issue now, it was right to concede the issue there.
We have permitted little deviation from the strictly construed requirements of section 11-
9-514(c). For example, in Fuller v. Pope County Judge, 2018 Ark. App. 1, 538 S.W.3d 851,
the record included a Form AR-N signed by the claimant. Id. at 3, 538 S.W.3d at 854.
The claimant acknowledged the signature was his, but he did not remember completing
the form or who gave it to him. Id. The Commission credited his supervisor’s testimony
that it was his standard practice to give injured employees a form AR-N, and he was
certain the claimant received the form. Id. We affirmed under a substantial-evidence
standard. Elsewhere, we found noncompliance even when, for example, the claimant had
signed a form AR-N (at a disputed time), and the employer’s claims coordinator testified
she had verbally explained the change-of-physician process to the claimant after the injury.
Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 272, 19 S.W.3d 36, 40 (2000) (“We
think [the language in section 11-9-514(c)(1) referring to a ‘copy of a notice’] clearly
connotes that the notice will be in writing, and that verbal notification does not comply
7
with the requirements of the statute.”). Tempworks admitted there was no compliance with
the notice requirements in section 514(c). The Commission correctly concluded that,
under our precedents, the change-of-physician rules therefore do not apply. Because the
change-of-physician rules do not apply, according to the Commission, Jaynes “was free to
seek reasonably necessary medical treatment from any physician, including Dr.
Schlesinger.”
Affirmed.
VIRDEN and THYER, JJ., agree.
Frye Law Firm, P.A., by: William C. Frye, for appellants.
Gary Davis Law Firm, by: Gary Davis, for appellee.
8