Alexander v. Lee Way Motor Freight, CA

• Citation: 15 Ark.App. 41,689 S.W.2d 3
• Decision Date: 08 May 1985
• Docket Number: No. CA,CA
• Parties: Bobby J. ALEXANDER, Appellant, v. LEE WAY MOTOR FREIGHT, et al., Appellees. 84-416.
• Court: Court of Appeals of Arkansas

Page 3

689 S.W.2d 3

15 Ark.App. 41

Bobby J. ALEXANDER, Appellant, v. LEE WAY MOTOR FREIGHT, et al., Appellees.

No. CA 84-416.

Court of Appeals of Arkansas,

Division I.

May 8, 1985.

Hilburn, Calhoon, Forster, Harper & Pruniski by Nick Thompson & Dorcy Kyle Corbin, N. Little Rock, for appellant.

Friday, Eldredge & Clark by Elizabeth J. Robben, Little Rock, for appellees.

MAYFIELD, Judge.

One issue in this case involves a decision of the Workers' Compensation Commission holding that Act 444 of 1983 was substantive and, therefore, not retroactive. The Act went into effect on July 4, 1983, and amended Ark.Stat.Ann. § 81-1311 (Supp.1983) to allow an injured employee to have chiropractic care. This change provided by the Act is emphasized in the following quotation of a portion of section 81-1311:

If the employer selects a physician, the claimant may petition the Commission one time only for a change of physician, and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by recommendations of claimant or respondent; provided, however, that if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notification to the employer or carrier.

It was stipulated that the claimant sustained a compensable injury to his cervical spine on April 15, 1982, and that he was first treated by the company doctor who then referred him to Dr. Thomas Fletcher. Dr. Fletcher released him to return to work on July 20, 1982, but claimant continued to have problems and on July 12, 1983, pursuant to Act 444, he gave written notice to his employer that he intended to seek treatment from a chiropractor. He went to Dr. Gaylon Carter and upon respondent's refusal to pay for this treatment, a claim was filed and a hearing was held before an administrative law judge. The claimant contended that Act 444 entitled him to this treatment since it was in effect on the day he gave the written notice. The employer contended the Act was not retroactive, and the treatment was not for the injury received but for discomfort associated with claimant's long-standing degenerative disc disease.

Claimant testified that after his release by Dr. Fletcher his problem reoccurred in about six months. He said he returned to Dr. Fletcher who prescribed medication for him but when it did not relieve his pain and his restricted movement, he decided to visit Dr. Carter. Claimant admitted that he had been treated by Dr. Fletcher in 1977 for degenerative disc disease.

Dr. Fletcher testified that claimant's injury should have healed in about six months and that any recurring pain was most likely due to the degenerative disc disease which claimant had in 1977 and which was temporarily aggravated by the injury. Dr. Carter, however, reported that the injury "would cause this to be symptom expressive" because of the underlying weakness.

The administrative law judge held that Dr. Carter's treatment was not reasonably necessary as a result of the injury sustained in April of 1982. However, she held that based on the case of Popeye's Famous Fried Chicken v. Willis, 7 Ark.App. 167, 646 S.W.2d 17 (1983), Act 444 was procedural rather than substantive, and since the notice was given after the Act became effective, the claimant was entitled to the change of physicians to Dr. Carter. The Commission reversed the law judge on both points holding that while claimant's treatment by a chiropractic physician was causally related to the compensable aggravation of claimant's degenerative cervical disc disease, Act 444 of 1983 created new rights and obligations of a substantive nature, and must be characterized as substantive law not entitled to be retroactively applied to injuries...