94-0867. LEE FITZGERALD vs. DOVE INTERNATIONAL and WORKERS COMPENSATION FUND OF UTAH Defendants.

• Court: Utah

Utah Workers Compensation Decisions 1995. 94-0867. LEE FITZGERALD vs. DOVE INTERNATIONAL and WORKERS COMPENSATION FUND OF UTAH Defendants THE INDUSTRIAL COMMISSION OF UTAHLEE FITZGERALD, Applicant, vs. DOVE INTERNATIONAL and WORKERS COMPENSATION FUND OF UTAH, Defendants.Case No. 94-0867ORDER DENYING MOTION FOR REVIEWDove International and its workers' compensation insurance carrier, The Workers Compensation Fund of Utah, (referred to jointly as "Dove" hereafter) ask The Industrial Commission of Utah to review the Administrative Law Judge's order that Dove pay the cost of Lee Fitzgerald's physical therapy, pursuant to the Utah Workers' Compensation Act. The Industrial Commission exercises jurisdiction over this motion for review pursuant to Utah Code Ann. §63-46b-12, Utah Code Ann. §35-1-82.53, and Utah Admin. Code R568-1-4.M. FINDINGS OF FACT The facts of this case are not in dispute. They can be summarized as follows: As a result of an injury suffered while working for Dove, Mr. Fitzgerald underwent back surgery on March 19, 1993. Four days later, on March 23, he began a course of physical therapy as prescribed by his physicians. At the outset, Dove did not object to Mr. Fitzgerald's therapy. However, on July 1, 1993, Dove obtained a "peer review" from Dr. Knorpp, who concluded that therapy should have ended eight weeks after surgery. On August 17, 1993, Dove informed Mr. Fitzgerald's treating physician and his physical therapist that it would not pay for therapy after August 27 unless warranted by compelling circumstances. However, Dove did not inform Mr. Fitzgerald of its decision to deny payment for future therapy. Mr. Fitzgerald continued to receive therapy after August 28 until September 20, 1993, at a cost of $466.90 which was billed to Dove. In November 1993, Dove obtained opinions from three other physical therapists regarding the propriety of Mr. Fitzgerald's therapy for the period of August 28 through September 20, 1993. Each therapist concluded that Mr. Fitzgerald's treatment after August 27, 1993 was improper. Several months later, on March 11, 1994, Dove and Mr. Fitzgerald executed a compensation agreement which established the extent of Dove's liability for Mr. Fitzgerald's work injury. Despite Dove's previous misgivings about the duration of Mr. Fitzgerald's physical therapy, the compensation agreement contained...