{
  "id": 6136478,
  "name": "Eddie PATRICK v. ARKANSAS OAK FLOORING COMPANY",
  "name_abbreviation": "Patrick v. Arkansas Oak Flooring Co.",
  "decision_date": "1992-07-08",
  "docket_number": "CA 91-423",
  "first_page": "34",
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  "last_updated": "2023-07-14T21:16:17.678789+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Cracraft, C.J., Mayfield, J., and Cooper, J., dissent."
    ],
    "parties": [
      "Eddie PATRICK v. ARKANSAS OAK FLOORING COMPANY"
    ],
    "opinions": [
      {
        "text": "John E. Jennings, Judge.\nThe claimant, Eddie Patrick, worked for Arkansas Oak Flooring Company as a ripsaw operator. On January 9, 1989, Patrick injured his shoulder. He was seen by Dr. Troy Oxner, an osteopathic physician. He was referred by Dr. Oxner to Dr. Bob Gullett and Dr. John Lytle, orthopedic surgeons. Neither could find an anatomical basis for the claimant\u2019s pain. He was apparently also seen by Dr. Brad Mosely. In an office note dated August 7,1989, Dr. Gullett wrote:\nHe relates that his shoulder hurts him. He can still move it well and there is no change really from what I have seen before. I have told him that I have done all that I am able to do to help him and perhaps he could visit back with his family doctor, Dr. Oxner, and perhaps referral to another orthopedic surgeon would be appropriate.\nThe claimant returned to Dr. Oxner and on August 8,1989, Oxner wrote:\nI feel as though I have nothing else to offer this patient. Patient has been told that we have been unable to find anything that would point to the cause of his pain. Have instructed patient that if there was another physician that he thought might be able to help I would be glad to refer him at that time.\nOn September 7, 1989, Dr. Oxner\u2019s nurse wrote in her office notes:\nPatient comes in wanting appointment [with] Dr. Bishop as he feels his shoulder pain is due to a neurological problem. Dr. Oxner was consulted and it was agreed that we would set up appointment as requested.\nDr. Oxner also referred the claimant to Dr. Edward Weber, another orthopedic surgeon, at the claimant\u2019s request.\nDr. Bishop had a MRI performed and diagnosed Patrick\u2019s problem as impingement syndrome. Ultimately Dr. Weber recommended surgery, which has not yet been performed.\nOn these facts the Commission held that the employer was not responsible for the treatment by Drs. Bishop and Weber because their treatment was not a result of a \u201cvalid referral,\u201d but rather were \u201creferrals based upon a request by the claimant.\u201d Whether the Commission\u2019s decision may stand is the only issue presented on appeal.\nArkansas Code Annotated section 11-9-514(a)(1) (1987) provides:\nIf the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.\nThe Commission\u2019s authority to characterize a change of physician as a referral has its origin in the Commission\u2019s own Rule 23 which authorizes the Commission to permit deviation from the Commission\u2019s rule when compliance is impossible .or impractical. See Mohawk Rubber Co. v. Buford, 259 Ark 615, 535 S.W.2d 819 (1976); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). We have held that whether treatment is a result of a \u201creferral\u201d rather than a \u201cchange of physician\u201d is a factual determination to be made by the Commission. TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991). When the Commission\u2019s findings of fact are challenged on appeal, we affirm if they are supported by substantial evidence. Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). We do not reverse the Commission\u2019s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28,661 S.W.2d 403 (1983). The Commission no longer has the discretion to retroactively approve a change of physicians. Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).\nIt is true that in the case at bar, Dr. Gullett suggested the possibility that Dr. Oxner might refer the claimant to a third orthopedic surgeon. Nevertheless, it was apparently the claimant\u2019s own idea to obtain referral to a neurologist. We conclude that the Commission\u2019s determination that the treatment by Drs. Bishop and Weber was actually in the nature of a change of physicians is supported by substantial evidence.\nWhite v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987), is distinguishable. In White \u201cemergency treatment\u201d was involved and we said \u201cthe change was not of appellant\u2019s seeking but was instead prompted by exigent circumstances. . . .\u201d Appellant also relies on Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), but in Electro-Air the referral was apparently a genuine one which merely coincided with the wishes of the claimant\u2019s attorney.\nWe hold that the Commission\u2019s decision is supported by substantial evidence.\nAffirmed.\nCracraft, C.J., Mayfield, J., and Cooper, J., dissent.",
        "type": "majority",
        "author": "John E. Jennings, Judge."
      },
      {
        "text": "James R. Cooper, Judge,\ndissenting. I dissent because I disagree with the majority\u2019s conclusion that the claimant\u2019s treatment by Drs. Bishop and Weber constituted changes of physicians rather than referrals. In its opinion, the Commission states that the claimant\u2019s treatment by those doctors constituted changes of physicians because the claimant requested that he be referred to them. However, it is clear that a mere request for treatment by a particular physician is, in itself, insufficient to invalidate an otherwise valid referral. See Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985). Whether or not particular treatment constitutes a referral, as opposed to a change of physicians, is a question of fact for the Commission. TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991). Wemust affirm the Commission\u2019s decision if fair-minded persons could reach the conclusion arrived at by the Commission. Tuberville v. International Paper Co., 28 Ark. App. 196, 771 S.W.2d 805 (1989).\nThe Commission relied on office notes in which Dr. Oxner\u2019s nurse stated that the claimant came in wanting an appointment with Dr. Bishop, and Dr. Oxner\u2019s statement in his deposition that he referred the claimant to Dr. Weber at the claimant\u2019s request. However, the Commission took Dr. Oxner\u2019s statement out of context, ignoring the rest of his statement in which he made it plain that he could not determine the origin of the claimant\u2019s pain, and that he referred the claimant to another physician because he felt that he had nothing else to offer him. I submit that, when Dr. Oxner\u2019s statement is read in context, fair-minded persons could not therefore conclude that the claimant was not referred by him to Dr. Bishop. See Tuberville v. International Paper Co., supra.\nCracraft, C.J., and Mayfield, J., join.",
        "type": "dissent",
        "author": "James R. Cooper, Judge,"
      }
    ],
    "attorneys": [
      "Baim, Gunti, Mouser, DeSimone, & Robinson, by: William Kirby Mouser, for appellant.",
      "Friday, Eldredge & Clark, by: James C. Baker, Jr., and./. Michael Pickens, for appellee."
    ],
    "corrections": "",
    "head_matter": "Eddie PATRICK v. ARKANSAS OAK FLOORING COMPANY\nCA 91-423\n833 S.W.2d 790\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 8, 1992\nBaim, Gunti, Mouser, DeSimone, & Robinson, by: William Kirby Mouser, for appellant.\nFriday, Eldredge & Clark, by: James C. Baker, Jr., and./. Michael Pickens, for appellee."
  },
  "file_name": "0034-01",
  "first_page_order": 58,
  "last_page_order": 62
}