SUPPLEMENTAL OPINION ON PARTIAL GRANTING OF REHEARING
946 S.W.2d 697
June 4, 1997
David J. Potter, for appellant.
Huckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and Julia L. Busfield, for appellees/cross-appellants.
Sam Bird, Judge.West Tree Service and U.S. Fidelity & Guaranty Co. have filed a petition for rehearing alleging three errors in this court’s opinion of April 2, 1997. Because we agree with one of appellees’ arguments, we issue this supplemental opinion.
Appellees argue that our order suggesting that the Workers’ Compensation Commission consider assessing a penalty against appellees was in error because the issue had not been raised to the Commission and because the statute cited, Ark. Code Ann. § ll-9-802(b) (1987), applies only to the failure to pay benefits that are due and not controverted. We agree, and we grant appellees’ petition for rehearing as to this point and withdraw our directive that the Commission consider assessing a penalty against appellees.
However, we disagree with appellees’ other assertions in the petition for rehearing. First, we disagree that we have reweighed the evidence in coming to the conclusion that there was not substantial evidence to support the Commission’s finding that appellant’s healing period ended on November 13, 1992.
The administrative law judge, whose opinion was adopted by the Commission, found that appellant had continued in his healing period until November 13, 1992. The only evidence upon which this finding could be based was the letter of Dr. Marcia Hixon to appellee U.S.F.&G. dated January 4, 1993, in which she opined that the appellant had healed from the radial shortening osteotomy as of November 13, 1992. In a letter from U.S.F.&G. to appellant’s attorney dated January 11, 1993, U.S.F.&G. apparently interpreted Dr. Hixon’s letter to mean that appellant’s maximum medical healing had ended on November 13, 1992. However, in her deposition on February 2, 1993, Dr. Hixon stated that when she examined appellant on November 13, 1992, appellant “had healed from the bone and osteotomy. It generally takes between sometimes up to a year and a half to heal. I mean to say that things have settled down after the particular operation. So he had healed the soft tissues and the bone, but I don’t think he had fully recovered from the surgery at that time. ...” Subsequently in her deposition, Dr. Hixon stated that she “cannot say that [appellant] had actually reached maximum medical improvement” as of November 13, 1992.
We agree with the appellees that it is the function of the Commission to weigh the evidence, Teague v. C & J Chemical Co., 55 Ark. App. 335, 935 S.W.2d 605 (1996), and we agree with the appellees that it is the limited function of the appellate court on review to determine if the Commission’s findings are supported by substantial evidence, Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996). However, in determining whether substantial evidence exists to support a finding of the Commission, we are required to look at the evidence and make a determination of whether there is evidence that could have led fair-minded persons to reach the same result. Hoskins v. Rogers Cold Storage, 52 Ark. App. 219, 916 S.W.2d 136 (1996). Where, as here, the medical opinion upon which the Commission relied in making its finding is a doctor’s statement that the same doctor subsequently refuted, we cannot agree with appellees that the Commission’s finding is supported by substantial evidence.
Secondly, while standing firm in our affirmation of the Commission’s decision to permit appellant to receive treatment from an out-of-state physician, we take this opportunity to explain further the basis for our decision and our interpretation of the definition of the term “medical services” as contained in Ark. Code Ann. § ll-9-102(17)(1987).
We wish to make it clear that our decision to affirm the Commission on cross-appeal was not based on the concession by appellees’ counsel during oral argument. While we did, in our opinion of April 2, 1997, make mention of the fact that appellees’ counsel did concede that the definition of “medical services” as contained in Ark. Code Ann. § 11-9-102(17) “should not be so narrowly construed as to prohibit a claimant from ever being treated by an out-of-state physician,” that conclusion can be reached in this case without appellees’ concession by referring to other provisions of the Workers’ Compensation Law.
For example, under Ark. Code Ann. § 11-9-401 (a)(1) (1987), it is the responsibility of the employer to “secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment without regard to fault as a cause of the injury.” Further, Ark. Code Ann. § ll-9-514(a)(l)(1987) permits a claimant to change physicians upon a showing “to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change.”
In the case at bar, the law judge apparently found justification for a change of physicians and found that the appellees had “preliminarily agreed” to the change and “did not necessarily oppose the surgical procedure requested” but opposed the use of physicians outside the State of Arkansas. Therefore, the law judge entered an opinion changing the appellant’s physician to Dr. R. Cole Goodman of Fort Smith. Flowever, Dr. Goodman refused to treat appellant and that opinion was withdrawn, resulting in a finding by the law judge, consistent with appellant’s theory, that as a result of a pending medical malpractice suit by appellant against Dr. Hixon, appellant is unlikely to receive appropriate medical treatment from any hand specialist in Arkansas. As the law judge pointed out, if appellant is to receive the benefits of the employer’s continuing statutory obligation to provide appropriate medical care, it is necessary that appellant be permitted treatment by out-of-state physicians. Clearly, it would violate an employer’s statutory duty to provide medical care if that care was denied simply because there was no medical service provider in Arkansas who was qualified and willing to provide the service. Although appellees argued that a sufficient showing had not been made by appellant to justify the Commission’s authorization of a change of physicians, we hold that the Commission’s decision in that regard is supported by substantial evidence.
We agree with appellees that our interpretation of the term “medical services” as used in our opinion of April 2, 1997, was overly broad, and that interpretation is hereby withdrawn. However, we reach the same result using the analysis set forth above.
The petition for rehearing is granted in part and denied in part.
Robbins, C.J., and Jennings, Neal, Griffen, and Crab-tree, JJ., agree.