Popeye's Famous Fried Chicken v. Willis

• Decision Date: 09 February 1983
• Docket Number: No. CA,CA
• Citation: 7 Ark.App. 167,646 S.W.2d 17
• Parties: POPEYE'S FAMOUS FRIED CHICKEN and Continental Insurance Company, Appellants, v. Linda WILLIS, Appellee. 82-284.
• Court: Arkansas Court of Appeals

Page 17

646 S.W.2d 17

7 Ark.App. 167

POPEYE'S FAMOUS FRIED CHICKEN and Continental Insurance Company, Appellants, v. Linda WILLIS, Appellee.

No. CA 82-284.

Court of Appeals of Arkansas.

Feb. 9, 1983.

Rehearing Denied March 9, 1983.

Chester C. Lowe, Jr., Little Rock, for appellants.

Donald Frazier, Little Rock, for appellee.

MAYFIELD, Chief Judge.

This is an employer's appeal from the Workers' Compensation Commission and the question presented is whether the commission erred in authorizing a claimant to see another doctor at the employer's expense.

It is agreed that the claimant sustained a compensable injury to an elbow in a fall which occurred on November 20, 1980. The employer sent her to a doctor who made x-rays, put her arm in a sling, prescribed "warm soaks, Naprosyn and Tylenol," and released her to go back to work the next day. However, she continued to complain of pain and other symptoms associated with the elbow and eventually went to see Dr. Kenneth Jones of the Little Rock Orthopedic Clinic. It was stipulated that Dr. Jones was selected by the claimant and that all his bills which had been presented up to the day of the hearing had been paid by the employer.

The hearing before the law judge was held on June 30, 1981. Five letters were introduced pertaining to claimant's treatment by Dr. Jones and his associate, Dr. Millard. One of the letters, dated April 10, 1981, and addressed to claimant's attorney, concluded as follows:

Today there are no significant findings, other than those previously reported by Dr. Millard and myself. I must admit that at this moment I am at a loss to explain this patient's unusual complaints, with minimal findings. I therefore have recommended that this patient return to your office, with the consideration that you refer her to some other orthopedic office, as it would seem that neither Dr. Millard or myself have anything else to recommend to this patient in the way of treatment.

The only witness to testify at the hearing was the claimant who said her arm had never stopped hurting and that it swells up when she lifts boxes, as she has to do at times in her present job, and if she does very much housework. She described the pain, how she soaked her elbow in hot water, how she took pain medicine, and how the elbow "pops" when she moves it.

It was the contention of claimant's attorney that claimant was entitled to further medical treatment and if Dr. Jones had nothing else to offer, the law judge should authorize her to see another doctor. The respondent's attorney contended claimant should not be allowed to change doctors at respondent's expense and it was agreed that claimant would go back to Dr. Jones and that he would be asked to examine her again and make another report. This was done and his report was as follows:

The above patient returned to the clinic on July 3, 1981, for reevaluation.

She stated that her symptoms are getting worse. Once again, except for tenderness over the lateral aspect of the right elbow joint, there are no significant findings. It may be that surgical exploration of this elbow joint, or even an arthrogram, might be revealing. However, I do not have enough findings to justify this undertaking in this clinic.

Once again, as previously stated, I would recommend that this patient consider consulting another orthopedic office for a second opinion, or perhaps I should say a third opinion as she has seen Dr. Millard as well as myself.

I would again state that I have nothing further to offer this patient in the way of treatment. I therefore once more dismiss her from our medical observation. As to permanent partial disability, I can only estimate as I have done earlier, on the basis of the patient's complaints and not on the findings, a 2.5% partial disability to the right upper extremity.

Upon receipt of the above letter the law judge found that the claimant had shown circumstances justifying a change of physician as provided by Ark.Stat.Ann. § 81-1311, as amended by Section 3 of Act 290 of 1981, and he authorized her to be evaluated by one of the two doctors he named in his order. This decision was approved on appeal to the full commission, although one member dissented and the other two did not agree as to the...