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BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION
CROCKETT ADJUSTMENT, INSURANCE CARRIER/TPA
Hearing bef ore Chief Administrat ive Law Judge Dav id Greenbaum on May 7,2004, at Marion, Crit tenden Count y, Arkansas.
Claimant represent ed by Mr. Robert J. Donov an, Attorney-at-Law , Marianna,Arkansas.
Respondents represented by Mr. David C. Shelt on, Attorney-at-Law , WestMemphis, Arkansas.
A hearing w as conducted M ay 7, 2 00 4, t o determine w hether the
claimant w as entit led t o addit ional w orkers’ compensation benefit s.
A prehearing conference w as conduct ed in this claim on January 1 4,
2004, and a Prehearing Order w as filed on said date, at w hich t ime the claim
w as scheduled for a formal hearing. Because respondents’ primary w it ness
w as not able t o attend the scheduled hearing, t he hearing w as rescheduled for
May 7, 2004. At the hearing, the part ies announced t hat the stipulat ions,
issues, as w ell as their respect ive cont entions subject to a specif ic reservation
made by t he claimant w ere properly set out in the January 14, 2004,
Prehearing Order. A copy of the Prehearing Order w as int roduced as
“ Commission’s Exhibit 1" and made a part of the record w it hout objection.
It was stipulated that the employee/employer relationship existed at all
relevant times, including March 30, 1993; that the claimant sustained a
compensable injury on said date; that he earned sufficient wages to entitle him
to the maximum compensation rates in effect on March 30, 1993, of $252.30
for temporary total disability and $189.23 for permanent partial disability; that
the Full Workers’ Compensation Commission Opinion filed April 28, 1998, was
affirmed by the Arkansas Court of Appeals on March 10, 1999, and was a final
By agreement of the parties, t he issues presented for determination
Whet her t he claimant w as ent it led to be compensat ed and/or reimbursedfor the prescript ion medication, Viagra.
Whet her the respondents w ere responsible for further examinations andevaluations to assess permanent impairment.
Claimant cont ended, in summary, that his primary treating physician had
prescribed the medication, Viagra; that said medication was reasonably
necessary and was a compensable consequence of the admitted injury,
prescribed by an authorized treating physician, and should be paid for and/or
reimbursed by the respondents. In addition, claimant contended that Dr.
Dietrich Blumer, his authorized treating physician, had referred him to both Dr.
Lance Wright, a neurologist, and Dr. Atkins, a neuropsychologist, at the
Semmes-Murphy Clinic, for assessment of permanent disability; that said
examinations and evaluations were reasonably necessary and should be paid
by the respondents; and that a controverted attorney’s fee should attach to any
At the hearing, claimant’ s attorney pointed out that there w as another
legal issue concerning the fact that the respondents w ere only paying t he
claimant’ s portion of prescript ion medications, specifically, co-payment, and
that the claimant’ s private insurance carrier w as paying the major portion of his
drug expenses. Because the claimant anticipated that his health insurance
coverage w ould be t erminated in t he near future, claimant specif ically reserved
t he issue concerning t he proper reimbursement of prescript ion drugs previously
paid by private insurance. This reservation w as made, in part , because
respondent s object ed to t he joinder of addit ional issues.
The respondents contended that the prescription medication, Viagra, was
not reasonably necessary for the treatment of claimant’s compensable injury.
Respondents further maintained that a further evaluation in this case was not
reasonably necessary, and, further, that the issue of claimant’s permanent
The record in this case is composed solely of the transcript of the M ay
7, 2004, hearing cont aining numerous exhibit s. Subsequent to the hearing,
respondent s’ attorney submit ted a brief in support of it s cont entions.
From a review of the record as a whole, to include medical reports,
documents and other matters properly before the Commission, and having had
an opportunity to hear the testimony of the witnesses and to observe their
demeanor, the following findings of fact and conclusions of law are made in
accordance with Ark. Code Ann. §11-9-704:
The Arkansas Workers’ Compensation Commission has jurisdiction over
The stipulations agreed to by the parties are hereby accepted as fact.
The claimant has proven, by a preponderance of the evidence, that the
prescript ion medication, Viagra, is reasonably necessary, as w ell as
causally related to the claimant’ s March 30, 1 993, injury , and is the
The claimant has f ailed t o prove, by a preponderance of the evidence,
t hat respondents are responsible for additional examinations and
evaluations for the purpose of assessing permanent impairment related
The issue of permanent impairment has previously been determined and
is barred by t he doctrine of res judicata
Issues not specif ically addressed herein are reserved for future
Respondents have cont roverted claimant’ s entit lement t o the prescript ion
As reflected by t he stipulations, t his claim has been the subject of prior
proceedings. A review of the prior proceedings is necessary to address the
A hearing w as conduct ed on April 2, 1 997. A t the prior hearing,
claimant contended that he sustained a tw enty-f ive percent (25% ) impairment
due t o t he compensable injury, and w as entitled to w age-loss disability in
excess of the anatomical rating. The claimant also request ed f urther medical
treatment. Conversely, respondent s maintained t hat the claimant had been paid
all benefits to w hich he w as entit led, including medical benef it s, temporary tot al
disabilit y, temporary partial disabilit y, and permanent partial disabilit y based
upon a ten percent (10% ) impairment rating. Respondents contended that the
claimant w as not ent it led to w age-loss disabilit y nor t he additional impairment
of tw ent y-f ive percent (25% ) assigned as t he result of claimant’ s psychiatric
condition. An Opinion w as f iled September 11, 1999, by another
administrative law judge (hereinafter referred t o as A LJ), result ing in the
follow ing f indings of fact and conclusions of law :
The Arkansas Workers’ Compensation Commission has jurisdiction ofthis claim.
Claimant has show n, by a preponderance of the evidence, that he w astemporarily and tot ally disabled from October 1 6, 1995, through October31, 1 995, as a result of the compensable injury.
The evidence demonst rates that the psychot herapy provided by Dr. KeithAtkins w as authorized and ordered by Dr. Blumer for reasonable andnecessary treatment of the claimant’ s compensable medical condit ion.
Claimant failed to demonst rat e, by a preponderance of the evidence, thatt he nerve conduct ion studies performed by Dr. Phillips and by Dr.
Jacew icz are related to the claimant’ s compensable injury.
Claimant failed to demonstrate that the emergency room bill of December7, 1994, w as t he result of a compensable seizure.
The evidence demonst rat es t hat claimant sustained additional permanentimpairment as a result of t he compensable injury and is ent it led to anindependent medical evaluation t o be performed by Dr. Jim J. Moore t oassess the extent of the impairment based upon diagnostic st udies andot her objective medical evidence.
Claimant has f ailed t o show , by a preponderance of the evidence, thathe sustained w age-loss disabilit y result ing from the compensable injury.
Respondents appealed the Opinion and Order filed by the A LJ.
By Opinion filed April 28 , 1 999, t he Full Workers’ Compensation
Commission affirmed as modif ied in part, and reversed in part, t he decision of
t he ALJ. Specif ically, aft er conduct ing a de novo
review of the record, the
Commission found that the preponderance of the evidence established t hat
psychotherapy treat ment w as both causally related t o, and reasonably
necessary treat ment for the claimant ’ s compensable injury. In addition, t he
Commission found that the claimant proved, by a preponderance of t he
evidence, that he re-entered his healing period and became incapacit ated to
earn w ages beginning on October 16, 1995, and continuing until Oct ober 30,
1995, and affirmed as modif ied the ALJ’ s decision in those regards. The
Commission also found that the ALJ abused her discretion by ordering the
respondents to schedule an independent medical examination, and found that
t he claimant failed to establish, by a preponderance of the credible evidence,
that he sustained any permanent anatomical impairment in excess of the t en
percent (10% ) impairment rat ing previously accepted and paid by t he
respondent s. Accordingly, the Commission reversed t he A LJ decision in t hose
regards. The Full Workers’ Compensation Commission Opinion w as af firmed
by the Arkansas Court of Appeals on March 10, 1 999.
applies w here there has been a f inal adjudication on the
merits of an issue by a court of competent jurisdiction on all matters litigated
and those matters necessarily w it hin the issue w hich might have been lit igated.
Perry vs. Leisure Lodges
, 19 Ark. App. 143, 718 S.W.2d 114 (1986). The
doct rine of res judicata bars t he reopening of matters once judicially det ermined
by competent authority . Gw in vs. R.D. Hall Tank Co.
, 10 Ark. App. 12, 660
S.W.2d 947 (198 3). Res judicata
applies to decisions of the Workers’
Compensation Commission. Perry, supra; Gw in, supra
. The rationale
underlying t he doct rine of res judicata
is to end litigation by preventing a party
w ho has had one f air t rial of a question of fact from again draw ing it into
controversy. Mohaw k Tire and Rubber Co., vs. Brider
, 259 Ark. 728, 536
S.W.2d 126 (197 6). How ever, t he doct rine does not bar issues w hich w ere
not decided and could not have been decided. In t his regard, t he A rkansas
Supreme Court made the follow ing comments in Faw cett vs. Rhyne
, 187 Ark.
The doct rine of res judicata
rests, not upon the f act that a particular
proposition has been affirmed or denied in the pleadings, but upon the fact thatit has been fully and fairly investigated and tried. A point not raised by t hepleadings nor decisive of the case and not actually lit igated is not conclusivelyest ablished for the purpose of a subsequent suit upon a dif f erent cause ofactions, although it may be expressly or tacitly involved in the judgment.
The issue of claimant ’ s ent it lement to permanent impairment , as w ell as
w age-loss disabilit y has previously been addressed by this Commission as
ref lect ed above. Accordingly, t hat issue is now barred by t he doctrine of res
The only remaining issue is w hether the claimant is entit led to be
compensat ed f or the prescript ion medication, Viagra.
Dr. Dietrich Blumer has at all times been recognized as the claimant’ s
primary care physician. He has prescribed a number of medications for t he
claimant’ s injury including Viagra. Apparently, respondents have accepted and
paid for all of the medicat ions, save, Viagra, w hich t he claimant apparently has
eit her paid f or out of his ow n pocket or has simply failed to obtain due to the
high cost of the medication. How ever, the record is clear and undisput ed t hat
Dr. Blumer has at all times opined that the medication Viagra should be included
in the list of drugs required for the chronic effects of the claimant ’ s head injury
as reflected by Dr. Blumer’s August 3, 2 000, report set out in part below :
Sorry f or the late reply. M r. Headley needs ongoing follow -up, and to this dat et he insurance carrier has paid the expenses of the visits and of the medication.
How ever, Mr. Headley has paid for the Viagra himself. This expense should beincluded in the list of drugs he needs for the chronic ill effect of the head injuryhe suf f ered: he requires Paxil for his organic mood disorder and the Paxilint erferes w it h his sexual arousal (w e cannot simply subst it ut e another drug).
(Cl. Ex. A, p.1)
Alt hough respondents argue that it did not pay f or the prescription Viagra
because it never received a prescript ion or a request for reimbursement by t he
claimant, I f ind this to be a frivolous argument.
Judith A. Bourne, respondent s’ claim represent ative, test if ied at t he
hearing. A portion of her testimony is set out below :
Q Were you aw are that Dr. Blumer had stated that Mr. Headley should betaking Viagra in connect ion w ith his problem secondary to this injury?
A According to t hat letter report, yes.
Q What is your posit ion regarding the paying f or Viagra f or Mr. Headley?
A I’ve never taken a position. I w as never contacted.
Q Well, w e just got through going through – is this not a letter that you saidyou received?
A No, sir, not according to w orkers’ comp procedure.
Q Would you enlighten me about w orkmen’s comp procedures then?
A Normally, a pharmacy w ill cont act me to ask me if I authorized something.
Q Well, did you tell Mr. Shelt on w hat to do on it , eit her pay it or not pay it ,if he presents it?
Q You just ignored it, is t hat w hat you are t elling us?
Q Well, w hat did you do in response t o t hose let ters?
Q You did nothing, so then you ignored them?
A No, sir, because Ms. Headley w as sending receipts t o me and she neversent a receipt.
Q Well, maybe she w asn’ t buying any? Maybe she w as w aiting for you toapprove it?
A Nobody ever asked me to approve it.
Q Would you read the last sentence of that letter to Mr. Shelton that yousaid you received?
A “ Please see if t he Respondents w ill reimburse Mr. Headley f or this expenseand agree to pay for the expense in t he f ut ure.”
A Your let ter is t o Dav e Shelton, not me.
Q But you said you received a copy of it?
Q So you ignored it w hen you received it?
Q Well, if he goes out and gets a prescript ion tomorrow for Viagra and w esend it in to you, are you going to honor it or not?
A I w ould probably ask some more questions.
A Such as is this Viagra for his related w ork injury?
Q Well, you said you’ d probably received a copy of the report from Dr.
Blumer that w as attached to the letter, didn’ t you?
Q I’ m looking at Dr. Blumer’ s report of August the 3 rd of 2000. What elsedo you need to know about it?
A But she never called me to ask me if I’ d pay for it . Nobody ever called me.
Nobody ever called me about any prescriptions.
A I w ill not – I can’ t say w hat position I w ould take at this point. (Tr. 13-15)
Both the claimant and his w ife testif ied that they attempted to have the
respondents pay for the prescript ion f or Viagra, but that it ref used. They
pointed out that because of the cost of the medication, it w as not pursued until
recently. Alt hough the reason for the delay in pursuing this medical treatment
is unclear, I find that all the credible evidence supports the claim that
respondents are responsible for the medication upon receipt of a current
prescript ion, it being my finding that claimant has proven that the medication
is reasonably necessary, as w ell as related to the admit ted injury. I f urther find
that respondents have cont roverted payment for this medication. A hearing
w as necessary to establish its liability .
Whet her a claim is controverted is a fact question that must be
det ermined f rom the circumst ances of each part icular case. Masonite
Corporation vs. Mitchell
, 16 Ark. App. 209, 699 S.W.2d 409 (1985); Climer
vs. Drake’ s Backhoe
, 7 Ark. App. 148 , 644 S.W.2d 637 (198 3); Walt er vs.
Southw estern Bell Telephone Co.
, 17 Ark. App. 43, 702 S.W.2d 822 (1986).
The mere f ailure to pay compensation benefit s does not amount to
cont roversion, in and of itself. Revere Copper & Brass, Inc., vs. Talley
, 7 Ark.
App. 234, 647 S.W.2d 477 (1983). Likew ise, controversion may not be found
w here the respondent accept s its compensabilit y but delays pay ment in a
reasonable attempt to invest igate the extent of the claimant’ s disability.
Horseshoe Bend vs. Sosa
, 259 Ark. 267 , 532 S.W.2d 182 (1976 ); Hamrick vs.
The Colson Company
, 2 71 Ark. 740, 6 10 S.W.2 d 281 (Ark. App. 1981).
How ever, assuming a position w hich requires the claimant to ret ain the services
of an at torney to t ake the act ions necessary to assure that the employee’ s
right s are protected may constit ute controversion. New Hampshire Insurance
Co. vs. Logan
, 13 Ark. App. 116, 680 S.W.2d 720 (1984); Turner vs. Trade
, 267 Ark. 861 , 592 S.W.2d 454 (1980 ).
I feel compelled to point out that t he record reflects possible abuses in
t he method of paying f or medications w hich respondents recognize are directly
and causally related to the compensable injury, but are only paid in part by
respondents because the claimant has been submit ting t hem under a private
health insurance plan, and respondents reimburse to the claimant his out of
pocket co-payment . The claimant maintained t hat this procedure w as required
because respondents failed to establish a process for payment of prescript ion
medications eit her by mail order or by authorizing a pharmacy to make the
medications available w ithout prepayment. How ever, this issue and any
addit ional issues beyond t hose agreed by t he parties, have been specif ically
Respondent, Superior Industries and its third-part y administrator,
Crockett Adjustment, is hereby directed and ordered to pay continued,
reasonably necessary medical treatment, including, but not limit ed to payment
and/or reimbursement of the prescript ion medication, Viagra.
Additionally, claimant’ s attorney, Mr. Robert J. Donovan, is hereby
aw arded the maximum statut ory attorney’ s fee pursuant to Ark. Code Ann. §11-
9-715; Coleman vs. Holiday Inn
, 31 Ark. App. 224, 792 S.W.2d 345
(1990); and Chamness vs. Superior Industries and Sedgwick James
of Arkansas, Inc.
, Arkansas Workers’ Compensation Claim #E019760,
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