A woman who was denied workers’ compensation-funded medical care after her physician died is allowed to continue the treatment with a new doctor, the Arkansas Court of Appeals ruled Wednesday.
The Arkansas Workers’ Compensation Commission erred in denying Patsy Ann O’Guinn’s request to change doctors after her previous physician, Harold Chakales, died, the court wrote in a unanimous opinion.
Under Arkansas Code Annotated 11-9-514, an employee is allowed to request a one-time change of physician. But O’Guinn had already switched doctors once, and the commission said it would not let her switch again.
The court disagreed.
“Dr. Chakales’s death effectively nullified the initial change-of-physician order, and Ms. O’Guinn was entitled to a change of physician … as if the first change of physician never occurred,” Judge Rita Gruber wrote in the eight-page opinion.
O’Guinn, 58, was working as a nurse’s aide providing home-health care for Ashdown-based Little River Memorial Hospital when she injured her lower back on May 29, 2009, while attempting to move a bed.
O’Guinn first received treatment from Little Rock doctor Kenneth Rosenzweig from June 2009 to February 2010, when she switched to Chakales, an orthopedic surgeon in Little Rock.
Chakales treated O’Guinn from July 2010 through Nov. 30, 2011. He died Dec. 13, 2011.
On Jan. 24, 2012, O’Guinn asked the commission to allow her to continue her treatment under another doctor, Vestal Smith. O’Guinn also argued that she was entitled to “permanent partial-disability benefits.”
On Oct. 4, 2012, an administrative law judge held a hearing on the case and denied both of O’Guinn’s claims.
The commission upheld the law judge’s ruling, stating that an employer can challenge an employee’s “right to additional benefits at any time” and that O’Guinn had failed to show a need for additional treatment.
The appeals court denied O’Guinn’s claim that she was entitled to permanent disability benefits, because she did not have support from a doctor’s evaluation for such benefits.
But Gruber wrote that O’Guinn’s continued treatment was not challenged until she sought a new physician and that an employer cannot block a valid “change-of-physician order by attempting to present evidence that additional treatment will no longer be necessary.”
Gruber cited a 2012 Court of Appeals case, Wal-Mart v. Keys, in which another patient of Chakales asked for a new physician when his health deteriorated. In that case, the court found that because the patient was granted a change of physician to Chakales, his death nullified that transfer.
“In the present case, we agree with Ms. O’Guinn that under our [previous] decisions … the commission erred as a matter of law by not granting her a change of physician after her initial change-of-physician doctor died,” Gruber wrote.
Judge Phillip Whiteaker wrote in a concurring opinion that he believes the Legislature should consider revising the statute on the one-time physician change for when a claimant is left with no doctor and has already used the “statutory entitlement.”
“I note that the change-of-physician statute as currently written does not specifically address the situation in which a physician dies during the treatment of a patient; nor does it clearly address the possibility that a physician may retire, move, or have his or her privileges or license to practice medicine revoked or suspended during the physician’s treatment of the claimant. I believe that the determination of these issues is better left to legislative enactment, than judicial interpretation,” Whiteaker wrote.
In another case, the court upheld the commission’s ruling that denied workers’ compensation benefits to a Bank of America branch manager who broke her wrist on the way to work.
The commission found that Janice C. Tucker was not performing her usual work duties when she slipped on wet stairs in the parking deck next to the bank building on Capitol Avenue in Little Rock in May 2009.
“At the time of her accident, the claimant was in a common area not under the control of her employer, and was simply going to work. She was therefore not within the course of employment,” the commission wrote in its opinion.
The court agreed and found that “we cannot say that reasonable minds could not conclude that [Tucker] was not performing employment services.”
Arkansas, Pages 11 on 10/24/2013