{"id":"alj-H207830-2024-01-17","awcc_number":"H207830","decision_date":"2024-01-17","opinion_type":"alj","claimant_name":"Anna Nunez","employer_name":"Van Buren School District","title":"NUNEZ VS. VAN BUREN SCHOOL DISTRICT AWCC# H207830 JANUARY 17, 2024","outcome":"dismissed","outcome_keywords":["dismissed:2","denied:2"],"injury_keywords":["ankle","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/NUNEZ_ANNA_H207830_20240117.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NUNEZ_ANNA_H207830_20240117.pdf","text_length":10542,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207830 \n \nANNA NUNEZ, Employee                                                                               CLAIMANT \n \nVAN BUREN SCHOOL DISTRICT, Employer                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier                       RESPONDENT                          \n \n \n OPINION FILED JANUARY 17, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December 18, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on October 16, 2023 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #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 the \nwithin claim. \n 2.      The  claimant  sustained  compensable  injuries  to  her  bilateral  ankles  on \nNovember 1, 2022. \n 3.   The claimant was earning an average weekly wage of $575.34 which would \nentitle her to compensation at the weekly rates of $384.00 for total disability benefits and \n\nNunez – H207830 \n \n$288.00 for permanent partial disability benefits. \n 4.   Respondents accepted and paid a 7% rating to the right lower extremity. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Temporary total disability or temporary partial disability benefits. \n2.     Medical from Dr. Bird. \n3.     Permanent partial disability benefits. \n4.     Attorney’s fee. \nSubsequent to the hearing the parties agreed that the only issue to be decided at  \nthis time is claimant’s entitlement to payment for Dr. Bird’s treatment.  All other issues are \nreserved. \n The claimant contends that the medical treatment she received from Dr. Bird was \nreasonably necessary emergency medical treatment for her compensable ankle injuries \nand should be the liability of the respondents. \n The  respondents  contend  that  the  treatment  with  Dr.  Bird  was  unauthorized.  \nClaimant sought a change of physician to him but obtained treatment before an order was \nentered. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance 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 \n\nNunez – H207830 \n \n3 \n \non October 16, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.      Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that \nrespondent  is  liable  for  payment  of  medical  treatment  provided  by  Dr.  Bird.    Dr.  Bird’s \nmedical treatment was unauthorized; therefore, respondent is not liable for payment. \n 3.     All other issues are reserved. \n \n FACTUAL BACKGROUND \n Claimant is a 63-year-old woman who graduated from high school and has some \ncollege credit.  For 17 years she owned and operated a mortuary transport company.  In \nJanuary  2021  she became  employed  by  respondent as a bus  driver.  She  worked  two \nhours in the morning and two hours in the afternoon.  In addition, she also worked extra \nhours driving the bus for field trips, athletic activities, et cetera.  \n On November 1, 2022 claimant was sitting in her bus waiting for school to let out \nwhen she decided to go inside the school to the bathroom.  As she was stepping off the \nbus  she  stepped  on  an  uneven  surface  and  twisted  her  right  ankle.   Claimant  was  in \nextreme pain and was taken to the Mercy emergency room in Fort Smith where she was \ndiagnosed with a right ankle trimalleolar fracture dislocation and left nondisplaced fibular \ntip fracture.  The left ankle was treated conservatively, but she underwent an open right \nankle  reduction  and  internal  fixation  procedure  by  Dr.  Bolyard  on  November  2,  2022.  \nFollowing this procedure claimant was sent to a rehab facility for a period of time before \nshe was released to return home.  Medical records from Dr. Bolyard indicate that claimant \ncontinued to have some complaints of pain involving her right ankle after the surgery.  His \n\nNunez – H207830 \n \n4 \n \ntreatment included physical therapy, the use of a boot, heated socks, and a TENS unit.  \nHe also limited claimant to sedentary work.  In a report dated April 18, 2023, Dr. Bolyard \nindicated that a recent MRI scan revealed no significant findings.  He opined that he had \nnothing further to offer  claimant from an orthopedic standpoint and stated that she had \nreached maximum medical improvement. \n After her release by Dr. Bolyard, claimant and her attorney attempted to obtain a \nchange  of  physician  through  the  Commission.  According  to  e-mails  submitted  into \nevidence several doctors declined to accept claimant as a patient.  While the process of \nfinding a new physician was ongoing, claimant on her own sought medical treatment from \nDr.  Bird.    Dr.  Bird  determined  that  the  orthopedic  hardware  was  causing  claimant’s \ncontinued  complaints  of  pain  and  he  performed  a  surgery  to  remove  that  hardware  in \nJune 2023.   \n Claimant  filed  this  claim  contending  that  she  is  entitled  to  payment  of  Dr.  Bird’s \ntreatment  as  well  as  temporary  total or  temporary  partial  disability  benefits, permanent \npartial disability benefits, and a controverted attorney fee.  As previously noted, the parties \nsubsequent  to  the  hearing  agreed  that  the  only  issue  to  be  determined at  this  time  is \nclaimant’s entitlement to payment for Dr. Bird’s treatment.  All other issues are reserved. \n \nADJUDICATION \n Claimant contends that respondent is liable for payment of the medical treatment \nshe received from Dr. Bird.  An employer shall promptly provide for an injured employee \nsuch  medical  treatment  as  may  be  reasonably  necessary  in  connection  with  the injury \nreceived by the employee.  A.C.A. §11-9-508(a).  The employer has the right to select the \n\nNunez – H207830 \n \n5 \n \ninitial  treating  physician.  A.C.A.  §11-9-514(a)(3)(A)(i).    However,  an  employee  may \nrequest  a  one-time  change  of  physician.    A.C.A.  §11-9-514(a)(2)(A),    (a)(3)(A)(ii),  (iii).  \nWhen  a  claimant  seeks  a  change  of  physician,  she  must  petition  the  Commission  for \napproval.   Stevenson  v.  Tyson  Foods,  Inc.,  70  Ark.  App.  265,  270,  19  S.W.  3d  36,  39 \n(2000).  Treatment or services furnished or prescribed by any physician other than the \none selected according to the change of physician rules, except emergency treatment, \nshall be at the claimant’s expense.  A.C.A. §11-9-514(b).   \n A.C.A. §11-9-514 provides in pertinent part: \n     (c)(1)  After being notified of an injury, the employer or \n  insurance carrier shall deliver to the employee, in person  \n  or by certified or registered mail, return receipt requested, \n  a copy of a  notice, approved or prescribed by the  \n  commission, which explains the employee’s rights and \n  responsibilities concerning change of physician. \n          (2)  If, after notice of injury, the employee is not \n  furnished a copy of the notice, the change of physician \n  rules do not apply. \n           (3)  Any unauthorized medical expense incurred \n  after the employee has received a copy of the notice \n  shall not be the responsibility of the employer. \n \n \n In this case, respondent submitted into evidence a copy of Commission Form AR-\nN dated December 5, 2022, bearing the claimant’s signature.  In addition, the form also \nhas  claimant’s  signature  acknowledging  that  she  was  provided  a  copy  of  the  form  on \nDecember 5, 2022.    Therefore, I find that notice of the change of physician rules was \nprovided  to  claimant  as  required  by  A.C.A. §11-9-514  and  any  unauthorized  medical \nexpenses after that date are not the responsibility of the respondent.   \n As previously noted, claimant filed a request for a change of physician after her \nrelease by Dr. Bolyard.  Apparently, the physicians chosen by the claimant declined to \n\nNunez – H207830 \n \n6 \n \naccept her as a patient.  Instead of finding a physician who would accept her as a workers’ \ncompensation patient the claimant on her own sought medical treatment from Dr. Bird.  \nShe continued to receive treatment from Dr. Bird despite her attorney’s advice to obtain \na change of physician order. \n  Q And did I recommend that you wait until we could get \n  a change of physician to Dr. Bird before you underwent that \n  recommended treatment? \n \n  A Yes, you did.  You recommended it, but I felt since I \n  was already dismissed by the Van Buren School District, it \n  was only a matter of time before I ran out of insurance,  \n  health insurance. \n \n \n In summary, claimant was provided a copy of Form AR-N regarding the change of \nphysician  rules.   Before  that process  could  be  completed,  claimant  on  her own  sought \nmedical  treatment  from  Dr.  Bird  and  a  change  of  physician  was  never  filed  by  the \nCommission.    Under  these  circumstances,  the  medical  treatment  provided  by  Dr.  Bird \nwas  unauthorized  and  it  is  not  the  responsibility  of  the  respondent.    A.C.A.  §11-9-\n514(c)(3). \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that respondent \nis  liable  for  payment  of  medical  treatment  she  received  from  Dr.  Bird.    The  treatment \nreceived by claimant from Dr. Bird was unauthorized; therefore, respondent is not liable \nfor payment of said treatment.  Claimant’s claim for these benefits is hereby denied and \ndismissed. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \n\nNunez – H207830 \n \n7 \n \npreparation of the hearing transcript in the amount of $357.45. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207830 ANNA NUNEZ, Employee CLAIMANT VAN BUREN SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier RESPONDENT OPINION FILED JANUARY 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Co...","fetched_at":"2026-05-19T22:58:29.859Z","links":{"html":"/opinions/alj-H207830-2024-01-17","pdf":"https://labor.arkansas.gov/wp-content/uploads/NUNEZ_ANNA_H207830_20240117.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}