Lyda v. Henderson County Public Schools

2. The employer is the Henderson County Public Schools.

3. At the time of the incident giving rise to this claim, defendant-employer was self-insured for this risk and with claims being administered by Key Risk Management Services.

4. On February 16, 2000, defendant-employer regularly employed three or more employees and is bound by the North Carolina Workers' Compensation Act.

5. An employer-employee relationship existed between defendant-employer and plaintiff-employee on February 16, 2000, the date of the injury.

6. Plaintiff's claim is for an injury to her neck and shoulder, which said claim defendant has accepted as compensable.

7. Plaintiff filed a Motion for Approval of Medical Treatment on November 30, 2001, wherein she requested payment for medical treatment provided by Dr. Robert Smith; expenses related to physical therapy as ordered by Dr. Smith; and continued evaluation and treatment by Dr. Smith pursuant to N.C. Gen. Stat. § 97-25.

8. At the hearing, the parties submitted a Packet of Medical Records, which was admitted into the record, and marked as Stipulated Exhibit (2).

9. The depositions of Dr. Robert Smith and Mr. C. Steven Rogers, P.T. have been submitted and received into evidence.

10. At the hearing before the deputy commissioner, plaintiff submitted the following:

a. An April 17, 2001 Correspondence to Key Risk, which was admitted into the record, and marked as Plaintiff's Exhibit (3);

b. A July 2, 2001 Correspondence to Key Risk, which was admitted into the record, and marked as Plaintiff's Exhibit (4), and;

c. A March 28, 2001 Correspondence from Dr. Daniel W. Hankley, which was admitted into the record, and marked as Plaintiff's Exhibit (5).

11. The issues to be determined are as follows:

a. whether the Industrial Commission approves of plaintiff's choice of Dr. Robert Smith to provide her care and assume charge of her case;

b. whether defendant failed to direct care as required by N.C. Gen. Stat. § 97-25, and;

c. whether the medical care provided by Dr. Robert Smith has and will serve to provide relief, effect a cure or lessen the period of disability.

2. On December 5, 2000, defendant accepted the compensability of plaintiff's injury and claim through the filing of an Industrial Commission Form 60.

3. Following her injury, plaintiff reported the incident to defendant, and she was referred to Dr. John B. Lange at the Western Occupational Health Center in Hendersonville. Dr. Lange prescribed a short course of physical therapy, and prescribed anti-inflammatory medication. After this conservative course of treatment, plaintiff continued to experience pain.

4. Defendant then referred plaintiff to Dr. Larry Kroll, an orthopaedic specialist, in November 2000. Dr. Kroll prescribed physical therapy, medications and began diagnostic testing. Dr. Kroll retired in December 2000, and plaintiff was eventually referred to Dr. Charles R. Shields, a physiatrist, a physician specializing in physical medicine and rehabilitation.

5. Dr. Shields initially examined plaintiff on March 7, 2001, and diagnosed her as having chronic pain syndrome, neck and shoulder myalgias with right AC joint degenerative changes. Plaintiff reported to Dr. Shields that she had previously been at a physical activity level of 99% but now was at a physical activity level of 10%. Dr. Shields continued Dr. Kroll's prescription for plaintiff to take Darvocet as needed and added ½ tablet Norflex to be taken in the morning and ½ tablet to be taken in the evening. Dr. Shields began training plaintiff in breathing/relaxation techniques. He indicated that once he had more information regarding the pathologies he would begin strengthening exercises in his office, then send plaintiff to physical therapy if needed. Dr. Shields released plaintiff at maximum medical improvement on April 26, 2001 stating in his release note that plaintiff "has been at maximum medical improvement for some time but just needed help and encouragement to ease back into work." He further noted that there was no physical reason to warrant further therapy, that there was obvious symptom magnification and he could not find any focal myofacial points. Dr. Shields assigned 2% permanent partial impairment rating to plaintiff's right arm. He recommended a phased return to work with plaintiff beginning to work 3 hours per day then slowly increasing 1 hour per week until she reached 40 hours a week. Plaintiff was restricted to no activity at or above shoulder level except for occasional lifting of objects less than or equal to 5 pounds.

6. In late March 2001, plaintiff developed an ailment unrelated to her work-place injury. For this ailment, on March 26, 2001, plaintiff consulted with her primary care physician, Dr. Robert Smith. Plaintiff gave Dr. Smith a history of the medications that she had been prescribed by Dr. Shields. Plaintiff indicated she was not pleased with her response to the medications and she requested Dr. Smith change her medication and "do something else." Dr. Smith changed plaintiff's medication at her request. Dr. Smith ordered physical therapy based on a presumptive diagnosis of a strained neck, shoulder and back, as well as plaintiff's claim she had benefitted with prior physical therapy. Dr. Smith made these changes solely based on the history given him by plaintiff and did not consult her prior physician, Dr. Knoll or Dr. Shields, who was still treating plaintiff at this time.

7. On April 17, 2001, counsel for plaintiff sent a correspondence to defendant's adjuster requesting the authorization of treatment by Dr. Smith and coverage for physical therapy that had been ordered. This correspondence followed a telephone conversation between the same adjuster and counsel for plaintiff in which the adjuster had refused to authorize said treatment as plaintiff had seen three doctors, including a physiatrist and an orthopedic specialist. Further, her last authorized treating physician, Dr. Shield, had released plaintiff at maximum medical improvement without any recommendation for further physical therapy. The Full Commission gives greater weight to the opinions of Dr. Shields that plaintiff on April 26, 2001 reached the end of her healing period for her compensable injury of February 16, 2000 than to the opinions of Dr. Smith, a family physician that plaintiff continued to require treatment.

8. Despite the notification that treatment by Dr. Smith would not be authorized, plaintiff began the physical therapy on April 23, 2001.

9. Dr. Smith referred plaintiff for a functional capacity evaluation which was performed by Duncan A. Sharrits, Physical Therapsit, on June 5, 2001. It is noted in the summary that plaintiff did not demonstrate any symptom/disability exaggeration at this evaluation and that plaintiff would benefit from a physical therapy program. The Full Commission gives greater weight to the opinion of Dr. Shields, the authorized treating physician, regarding plaintiff's need for physical therapy and notation of symptom magnification as he treated plaintiff over a period of time as opposed to Mr. Sharrits, who saw plaintiff for one evaluation.

10. On March 28, 2002 a letter from Dr. Daniel Hankley of Blue Ridge Bone and Joint Clinic in Asheville indicates that he reviewed the results of plaintiff's functional capacity of June 5, 2001 as well as the job description for the purpose of determining if plaintiff was capable of undertaking a job being offered by defendant. Based solely on this information he writes "I believe the she (plaintiff) is able to perform that job within the restrictions of the functional capacity evaluation. I do not think I would recommend further physical therapy at this point." Although Dr. Hankley writes in the present tense, he is referring to the date of the functional capacity evaluation of June 5, 2001 as this is the only material on which he could have based his opinion regarding plaintiff's need for physical therapy.

2. Plaintiff is entitled to have defendant pay for all medical treatments that are related to her compensable injury so long as such treatments may reasonably be required to effect a cure, give relief and will tend to lessen plaintiff's disability. However, Dr. Shields clearly stated that plaintiff is not in need of further or ongoing medical treatment. Accordingly, plaintiff has not raised good grounds to change her authorized treating physician to Dr. Smith. N.C. Gen. Stat. § 97-25.

3. Defendant did not unreasonably refuse to provide the reasonable and necessary medical treatment as prescribed by plaintiff's authorized treating physician. N.C. Gen. Stat. § 97-25.

ORDER

2. Each side shall bear its own costs.

This the 31^st day of August 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/____________ BUCK LATTIMORE CHAIRMAN

DISSENTING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

I respectfully dissent from the majority's finding and conclusion that plaintiff has not established good grounds to change her authorized treating physician. N.C. Gen. Stat. § 97-25 provides, "an injured employee may select a physician of [her] own choosing to attend, prescribe and assume the care and charge of [her] case, subject to the approval of the Industrial Commission." N.C. Gen. Stat. § 97-25 (2003). "Approval of a physician selected by a workers' compensation claimant is left to the sound discretion of the Industrial Commission." Kanipe v.Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785 (2000). Moreover, "[a] workers' compensation claimant's request to the Industrial Commission for approval of a physician may be filed even after the treatment has been procured, just as long as the request is filed within a reasonable time thereafter." Kanipe v. Lane Upholstery,141 N.C. App. 620, 540 S.E.2d 785 (2000).

The majority has also denied plaintiff's request for approval of the "treatment" provided by Dr. Smith. N.C. Gen. Stat. § 97-25 further provides, "The Commission may at any time upon the request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the Commission, and in such a case the expense thereof shall be borne by the employer. . . ."

In the instant case, plaintiff suffered a compensable injury on February 16, 2000. Plaintiff's medical care was directed by defendant-employer from the time of her injury until early April 2001. In early 2001, Dr. Larry Knoll, an orthopedist and plaintiff's authorized treating physician, retired. In February 2001, defendant-employer directed plaintiff to submit to the care of Dr. Charles Shields, a physiatrist practicing in Hendersonville, North Carolina. Dr. Shields evaluated plaintiff and diagnosed her as suffering from chronic pain syndrome, and neck and shoulder girdle myalgias with possible myofascial components. Dr. Shields recommended a treatment regimen that included relaxation techniques and heavy medication.

Prior to being treated by Dr. Shields, plaintiff had undertaken physical therapy upon direction of Dr. Knoll. Despite plaintiff's request, Dr. Shields did not order further physical therapy, but only treated plaintiff with medication. Plaintiff continued to experience pain in her back, across her right shoulder and down her right arm. Plaintiff also experienced similar pain in her left arm but not to the same extent. Additionally, plaintiff's right hand was weak, tingled and would shake.

On March 26, 2001, plaintiff consulted her primary care physician, Dr. Robert Smith, for an upper respiratory infection. During this consultation, she inquired as to whether any of her symptoms could be side effects from the medication prescribed by Dr. Shields. Dr. Smith advised that the medications could be causing some of plaintiff's difficulties and she could be over-medicated. Dr. Smith recommended that plaintiff return to physical therapy. Pursuant to Dr. Smith's recommendation, plaintiff returned to physical therapy and obtained a significant reduction in the level of her pain and found that her condition improved.

Dr. Smith referred plaintiff for a functional capacity evaluation (FCE), which was conducted on June 6, 2001. The FCE results found that plaintiff was able to work at the "Sedentary-Light Physical Demand Level for an 8-hour day." The Blankenship System Reliability Profile indicated that plaintiff "did not demonstrate any symptom/disability exaggeration." The FCE Summary further suggested that plaintiff would benefit from physical therapy. These FCE results are contrary to Dr. Shield's note that plaintiff did not need further physical therapy and that she displayed obvious symptom magnification.

On or about April 10, 2001, plaintiff requested by telephone that defendant-employer authorize Dr. Smith's treatment of plaintiff and his referral to physical therapy. This request was denied. Plaintiff sent a letter to defendant-employer on April 17, 2001, requesting approval for treatment by Dr. Smith. Plaintiff did not receive a reply. By motion filed November, 2001, plaintiff requested the Industrial Commission to approve a change in physicians to Dr. Smith. This motion was granted by Deputy Commissioner Bradley W. Houser.

The physician authorized by defendants to treat plaintiff, Dr. Shields, closed his practice in the summer or fall of 2001. Prior to closing his practice, Dr. Shields released plaintiff from his care on April 26, 2001.

Defendants attempt to justify their refusal to approve Dr. Smith as plaintiff's authorized treating physician on the grounds that: (1) Dr. Shields had released plaintiff prior to their refusal; (2) Dr. Smith is a family physician who did not have any particular area of expertise and no special training in back, neck or arm injuries; and (3) "approving Dr. Smith as an authorized treating physician would prejudice the [d]efendant because he would not be providing [plaintiff] the best possible treatment."

As to defendants' first argument, however, Dr. Shields was not deposed in this matter, and the record is replete with evidence that plaintiff continued to experience pain and weakness in her back, shoulder and arm following her release by Dr. Shields. Plaintiff at least needed continuing medical treatment to provide relief and lessen her disability. The treatment provided by Dr. Smith provided relief and tended to lessen plaintiff's disability.

Defendants' second argument that Dr. Smith "is a family physician without a particular area of expertise and has no special training in back, neck or arm injuries," unfairly minimizes the medical competency of a family practice physician and there is no basis for such a broad-based statement. There is no evidence that the treatment provided by Dr. Smith to plaintiff was out of his area of expertise.

As to defendants' third argument, the only prejudice manifest as a result of failure to authorize Dr. Smith as plaintiff's treating physician is assessed to plaintiff, as she has suffered an admittedly compensable injury within the course and scope of her employment, but is without an authorized treating physician to oversee her healing process and medical maintenance.

Further, defendants cannot use the March 28, 2002 letter of Dr. Hankley to justify their refusal to authorize Dr. Smith as plaintiff's authorized treating physician. At the time of Dr. Hankley's review of the June 6, 2001 FCE results and plaintiff's job description, Dr. Hankley's opinion that plaintiff did not require further physical therapy appears to refer to plaintiff's medical needs as of March, 2002; and this opinion was given long after defendant had already refused to authorize Dr. Smith as plaintiff's treating physician.

In summary the treatment that Dr. Smith provided to plaintiff was reasonably related to her injury by accident and was reasonably required to at least provide relief and lessen her disability. The treatment was beneficial to plaintiff, defendants benefited from plaintiff's lessened disability and defendants should be required to pay for the treatment. Moreover, Dr. Smith should be authorized as plaintiff's treating physician because to do otherwise would leave plaintiff without an authorized treating physician in an admittedly compensable claim.

This case involves two issues which should not be confused, change of treatment and change of treating physician. Plaintiff has demonstrated the need for change of treatment as stated above. The treatment for which plaintiff seeks authorization and payment provided relief, lessened plaintiff's disability, was more effective than treatment provided by the authorized physician, Dr. Shields, and was the same treatment plaintiff's previously authorized physician had recommended before he retired. The decision to authorize a change in treatment is within the discretion of the Commission. Plaintiff timely requested the change in treatment and the change in treatment significantly improved plaintiff's condition. The majority has refused to authorize treatment which is known to have benefited plaintiff. The majority has also denied plaintiff's request for change of treating physician. The effect of such discretionary denial is to leave plaintiff with no treating physician in an admittedly compensable claim.

No purpose is served by denying plaintiff's request for change of treatment or change in treating physician. Considering the time and resources expended on these issues by the Commission and all parties, it is apparent that the Commission needs to adopt an expedited procedure for handling these types of issues.

For the above stated reasons, I dissent from the majority opinion herein.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER