{"id":"alj-H205900-2023-11-30","awcc_number":"H205900","decision_date":"2023-11-30","opinion_type":"alj","claimant_name":"Jason Marshall","employer_name":"Tyson Poultry Inc","title":"MARSHALL VS. TYSON POULTRY INC. AWCC# H205900 NOVEMBER 30, 2023","outcome":"granted","outcome_keywords":["granted:1","denied:1"],"injury_keywords":["shoulder","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/MARSHALL_JASON_H205900_20231130.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARSHALL_JASON_H205900_20231130.pdf","text_length":12946,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205900 \n \nJASON L. MARSHALL, Employee                                                CLAIMANT \n \nTYSON POULTRY INC., Self-Insured Employer                                    RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by B. TANNER THOMAS, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November  16,  2023,  the  above  captioned  claim  came  on  for a hearing  at Springdale, \nArkansas.  A pre-hearing conference was conducted on August 31, 2023, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on May 16, 2022. \n            3.  Claimant sustained a compensable injury on May 16, 2022. \n            4.  The compensation rates are the maximum.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1. Whether claimant is entitled to temporary total disability benefits. \n            2. Whether claimant is entitled to medical benefits. \n\nMarshall-H205900 \n2 \n \n            3.  Attorney fees. \n All other issues are reserved by the parties. \n  However, at the hearing, claimant announced that he was reserving his claim for temporary \ntotal disability benefits.  As a result, there was also no claim for attorney’s fees being pursued at the \nhearing.  \n The claimant contends that “On 5/16/2022 he was using damaged equipment and he had to \ncrank hard at a lever to open a feed bin on his truck. He heard his right shoulder pop, and the pain \nwas immediate and worsened throughout the day. Claimant was diagnosed with a right shoulder labral \ntear after an arthroscopy and debridement. Claimant had continuing problems with his right shoulder \nand had to take off work again. Claimant was released and filed a COP with Dr. Cox, but this was not \nin respondents’ network. Because of this, claimant has treated with Dr. Cox on his own. Claimant is \nnow scheduled for another surgery. Claimant contends that he is entitled to additional treatment and \nthat his attorney is entitled to an attorney’s fee. All other issues are reserved.” \n The respondents contend that “They  are  not  responsible  for  medical  expenses  which  the \nclaimant incurred on his own outside the authorized chain of referrals. The claimant had requested a \nchange of physicians to Dr. Cox but then abandoned efforts to pursue a change to another doctor \nwhen Dr.  Cox  could  not  receive  the  change  request.  The  claimant  then  admittedly  sought \nunauthorized treatment with Dr. Cox. The claimant has requested attorney’s fees on medical benefits, \nwhich  are  not  permitted  at  law.  Respondent  reserves  the  right  to  supplement  or  amend  these \nstipulations at a later date.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \n\nMarshall-H205900 \n3 \n \n \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n31, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    Claimant failed to prove that his treatment by Dr. Wesley Cox was authorized, nor was it \nemergency treatment, and therefore, the expenses of such are not the responsibility of respondent.  \n \n FACTUAL BACKGROUND \n After discussing the matter with the attorneys before testimony began, it was made clear that \nthe only issue for me to decide was whether claimant’s treatment by Dr. Cox was authorized.  As such, \nthe summary of the hearing testimony and the exhibits will focus on the evidence that pertains to that \nsingle issue.  \n Mr.  Tanner  Thomas  represented  claimant  at  this  hearing;  during  the  discussions  about  the \nchange of physicians, Ms. Laura Beth York was his attorney.  \nHEARING TESTIMONY \n \n Claimant was  the  only  witness  to  testify.  He  related  how  he  hurt  his  right shoulder  in June \n2022 and explained that he underwent an arthroscopic labral repair in August 2022 performed by his \nauthorized treating physician, Jason Stewart. Despite reporting to Dr. Stewart that he was still having \nproblems  with  his  shoulder  and  that  it  was  more  painful  after  the  surgery  than  it  was  before,  Dr. \nStewart released claimant to return to work at full duty with no restrictions on December 9, 2022. \n Claimant requested a change of physicians, but due to some issues beyond his control, no such \nchange of physicians was authorized. In May 2023 claimant started seeing Dr. Wesley Cox, who began \nwith conservative  treatment  including  an  injection  into  his  right  shoulder.  That  injection  provided \n\nMarshall-H205900 \n4 \n \n \nsome relief  for  a  short  period  of  time  but  as  of  the  date  of  the  hearing,  claimant  believed  that  he \nneeded additional arthroscopic surgery on his shoulder. \n \nREVIEW OF THE EXHIBITS \n \n Claimant provided the medical records from Drs. Stewart and Cox, both of which coincided \nwith his testimony. There was an MRI performed on February 21, 2023, which was ordered by Dr. \nThomas Knox and shows Dr. Donald Franklin as the admitting physician for that examination.  The \nfinal  record  was  from  Dr.  Cox  on  July  25, 2023, in  which  the  doctor  had  scheduled  claimant  for \nshoulder surgery on August 21, 2023. Claimant had not had that surgery as of the date of the hearing, \nas he wanted to be sure that the expense of that procedure would be covered as part of his workers' \ncompensation claim. \nREVIEW OF NON-MEDICAL EXHIBITS \n While neither party submitted the letter or e-mail that requested a change of physicians, it was \ncommon ground between the parties at the hearing that such had occurred sometime before January \n9, 2023 as that was the earliest date in a series of e-mails between claimant’s attorney, respondent’s \nattorney, and Ms. Susan Isaac at the Workers’ Compensation Commission Medical Cost Containment \nDivision. \nADJUDICATION \n \n \n The  employer  has  the  right  to  select  the  initial  treating  physician.  Ark.  Code  Ann.  §  11-9-\n514(a)(3)(A)(i). However, an employee may request a one-time change of physician. Ark. Code Ann. \n§ 11-9-514(a)(2)(A). When a claimant seeks a change of physician, he must petition the Commission \nfor approval. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 270, 19 S.W.3d 36, 39 (2000). Treatment \nor  services  furnished  or  prescribed  by  any  physician  other  than  the  ones  selected  according  to  the \n\nMarshall-H205900 \n5 \n \n \nchange-of physician rules, except emergency treatment, shall be at the claimant's expense. Ark. Code \nAnn. § 11-9-514(b). \n \n  Under Ark. Code Ann. § 11-9-514(b)-(c): \n \n(b) Treatment or services furnished or prescribed by any physician other than \nthe  ones  selected according  to  the  foregoing  [the  choice  and  change-of-\nphysician rules in Subsection (a)], except emergency treatment, shall be at the \nclaimant's expense. \n \n(c)(1) After being notified of an injury, the employer or insurance carrier shall \ndeliver  to  the  employee,  in  person  or  by  certified  or  registered  mail,  return \nreceipt  requested,  a  copy  of  a  notice,  approved  or  prescribed  by  the \ncommission,   which   explains the   employee's   rights   and   responsibilities \nconcerning change of physician. \n \n(2) If, after notice of injury, the employee is not furnished a copy of the notice, \nthe change of physician rules do not apply. \n \n(3)  Any  unauthorized  medical  expense  incurred  after  the  employee  has \nreceived a copy of the notice shall not be the responsibility of the employer.  \n \nRespondent  introduced  the  Employee’s  Notice  of  Injury  form  (AR-N)  as  well  as  the \nAcknowledgement of Managed Care Notice (R. X. 1-3), satisfying the requirement that claimant was \nfurnished  a  copy  of  the  rules  regarding  changing  his  treating  physician.  Neither  party  introduced \nclaimant’s petition to the Commission for approval to change physicians, but both parties referred to \nthat request in the contentions in the prehearing order, and the exhibits that were submitted discussed \nit.  I accept that a request was made.   However, I was not provided with any proof that the change of \nphysicians was approved by the Commission.  \n A chronological review of the emails that were submitted will show what happened--and what \ndid not happen. For ease of reading, claimant’s attorney in this exchange is Ms. Laura Beth York and \nher case manager is Amanda Faulkner (collectively referred to as “York”), respondent’s counsel is \nJeremy Swearingen, (“Swearingen”), and the Commission’s Medical Cost Containment representative \n\nMarshall-H205900 \n6 \n \n \nis Susan Isaac (“Isaac”): \n \n \n1. 1/9/23: Swearingen advised York that the adjuster was getting claimant’s appointment with \nDr. Knox set up.   Reference is made to it being “his initial COP” (“change of physicians”) \nand scheduling an arthrogram before that appointment. \n \n2. 1/17/23:  York asked Swearingen about the status of the arthrogram; Swearingen replied the \nsame day that the adjuster had authorized it and was trying to schedule it.  \n \n3. 1/18/23:  Isaac emailed York, copy to Swearingen, advising that Dr. Franklin, who practices \nwith Dr. Knox, was not in the MCO (Managed Care Organization) for this claim.  Isaac asked, \n“Is there another physician you would like to use for the COP?”   \n \n4. 1/23/23: Swearingen asked Isaac if she had heard anything regarding her 1/18/23 email.  Issac \nreplied that she had not.  York was copied on both. \n \n5. 1/24/23:  York responded that anyone at Knox Ortho would be suitable. Isaac replied that all \nthe other providers at Knox Ortho were in the MCO.   \n \n6. 1/25/23  Isaac  said  she  sent  the  records  to  Dr.  Franklin  because  he  specialized  in \nshoulders.   Swearingen asked York if there was another doctor at the clinic that she wanted \nfor the change of physicians.  \n \n7. 1/30/23  Isaac told York and Swearingen that Dr. Franklin was the only doctor at Knox that \nwould accept claimant as a patient, but since he was not in the MCO, Isaac could not approve \nthe COP to him.  “Ms. York, you will need to choose another physician for the COP.”  York \nasked about the arthrogram, Swearingen said it was approved because Dr. Franklin required it \nbefore seeing claimant, but it wasn’t scheduled because Dr. Franklin wasn’t appointed to \nassume claimant’s care.  York said claimant had been notified of an appointment for an MRI, \nand asked if he should keep that appointment.   \n \n8. 2/8/23  Isaac asked York if she had picked another physician for the COP.   York responded \nthat she had been very ill and would get back with Isaac when she returned.  \n \n9. 2/16/23 Isaac to York, “Just following up on this one.”  York to Isaac “Return to General \nFiles, please.” \n \nThe  parties  are  to  be  commended  at  how  much  communication  and  cooperation  they  showed \nthrough this email exchange. However, it does not appear in this record that a change of physicians \nwas  authorized  by  Ms.  Isaac;  she  asked  Ms.  York  about  choosing  a  doctor  that  was  in  the  MCO, \nbecause she could not name Dr. Franklin as claimant’s new physician, and no one else at Knox Ortho \n\nMarshall-H205900 \n7 \n \n \nwould accept him as a patient.  Without an order authorizing a change of physicians, respondent is \nnot responsible for the medical expenses related to the treatment by Dr. Cox. As respondent conceded \nat the hearing, claimant is still entitled to request such a change from the Commission’s Medical Cost \nContainment Division and is encouraged to do so.  \nORDER \n \n Claimant’s request for reimbursement for medical expenses incurred after February 21, 2023, \nand for continued treatment with Dr. Cox must be denied as it was unauthorized.  \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript in the amount of $540.45. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205900 JASON L. MARSHALL, Employee CLAIMANT TYSON POULTRY INC., Self-Insured Employer RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represented by B. T...","fetched_at":"2026-05-19T23:01:05.329Z","links":{"html":"/opinions/alj-H205900-2023-11-30","pdf":"https://labor.arkansas.gov/wp-content/uploads/MARSHALL_JASON_H205900_20231130.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}