2012 MTWCC 45
GINGER DOSTAL, Petitioner
v.
UNINSURED EMPLOYERS' FUND, Respondent.
No. WCC 2011-2772
Court of Workers Compensation of Montana
December 4, 2012
Submitted: November 4, 2011.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
JAMES JEREMIAH SHEA JUDGE.
Summary:
Petitioner and Respondent disagree regarding what amount constitutes a reasonable fee to charge for photocopying certain documents. Respondent has also refused to authorize certain medical treatment, including referral to a specific orthopedist who performed previous surgeries on Petitioner's back; referral to a pain management specialist; and a lumbar spine MRI. Petitioner contends that Respondent has acted unreasonably in the adjustment of her claim, and argues that she should receive her attorney fees and a penalty.
Held:
Based on the evidence presented, the Court concluded that the parties may reasonably charge each other 10 cents per page plus $25 per hour of labor for photocopying these documents. Petitioner is entitled to referral to the orthopedist she requested and is also entitled to referral to a pain management specialist. Petitioner is not entitled to a lumbar MRI. Respondent was unreasonable in refusing the referrals and Petitioner is entitled to her attorney fees and a penalty relative to those two issues.
¶ 1 The trial in this matter began on October 17, 2011, in Great Falls, Montana, and resumed and concluded on October 20, 2011, at the Workers' Compensation Court in Helena. Petitioner Ginger Dostal was present and was represented by J. Kim Schulke. Leanora O. Coles represented Respondent Uninsured Employers' Fund (UEF). Bernadette Rice, claims examiner for the UEF, also attended.
¶ 2
Exhibits:
I admitted Exhibits 1 through 22 without objection. I overruled Petitioner's relevancy objections and admitted Exhibits 23 through 33. I excluded Exhibit 34. I admitted pages 1, 6, 7, and the top of page 2 of Exhibit 35. I excluded pages 3, 4, 5, and the bottom of page 2 of Exhibit 35. Pursuant to Petitioner's request, I took judicial notice of Exhibits 20 and 24 from a previous case involving these parties: WCC No. 2010-2598. Respondent offered a cleaner copy of Exhibit 4, page 20, which I admitted as Exhibit 4, page 20(a).
¶ 3
Witnesses and Depositions:
The parties agreed that the depositions of Rosemary Youderian, FNP, Steve Davison, and Toni Broadbent can be considered part of the record. During trial, I took judicial notice of the March 16, 2011, deposition of Alan K. Dacre, taken in WCC No. 2010-2598. On October 17, 2011, Petitioner Ginger Dostal, Bernadette Rice, and Karla K. Kyweriga were sworn and testified at trial. On October 20, 2011, Rice was recalled and testified.
¶ 4
Issues Presented:
The Pretrial Order sets forth the following issues:
1
Issue One: Whether Respondent should have to reimburse Petitioner's counsel's firm for copying charges totaling $214.40.
Issue Two: Whether Petitioner's counsel must reimburse Respondent $1, 012 for copy charges.
Issue Three: Whether Respondent should authorize an MRI of Petitioner's lumbar spine.
Issue Four: Whether Respondent should authorize a referral to Dr. Dacre.
Issue Five: Whether Respondent should authorize a referral to a pain management specialist.
Issue Six: Whether Respondent has acted unreasonably in its handling of Petitioner's claim such that Petitioner is entitled to attorney fees and penalties.
FINDINGS OF FACT
¶ 5 Dostal testified at trial. I found her to be a credible witness. Dostal resides in Stanford, Montana.
2
¶ 6 On May 24, 1993, Dostal suffered an industrial injury to her ankles and her back when she fell off a roof while performing her job duties as a roofer for Randy Crowley Construction in Harlowton, Montana.
3
¶ 7 Dostal's employer was uninsured at the time of her industrial injury and therefore the UEF administers her claim. The UEF accepted liability and has paid medical benefits relating to Dostal's right foot and ankle, left ankle, and lumbosacral spine.
4
The parties' disputes regarding Dostal's medical treatment
¶ 8 In August 2004, Dostal began treating with Alan K. Dacre, M.D.
5 Dr. Dacre has performed three surgeries on Dostal's back. He performed each surgery in Billings.
6] The first, an anterior lumbar interbody fusion, occurred on December 7, 2004.
7] However, Dr. Dacre regularly saw Dostal in Lewistown when he traveled there to see patients.
8
¶ 9 On April 12, 2006, Dr. Dacre sent a letter to the patients he treated in Lewistown and stated that he would no longer conduct bimonthly clinics in Lewistown. Dr. Dacre explained that Gregory S. McDowell, M.D., would conduct monthly clinics in Lewistown and would be available to provide spine care. Dr. Dacre further stated that he would continue to treat patients who were able to travel to Billings for treatment.
9
¶ 10 On July 18, 2006, Dr. Dacre performed a second surgery on Dostal's spine – a posterior spinal instrumented fusion with posterolateral decompression at L5-S1 – because of a non-union.
10
¶ 11 On April 9, 2009, Dr. Dacre operated on Dostal for a third time to remove some of the hardware associated with her 2006 fusion surgery and to explore her lumbar fusion.
11
¶ 12 In his deposition, Dr. Dacre testified that at some point, he and Dostal discussed the possibility of her treating with either Dr. McDowell or Steven Rizzolo, M.D., who were available for appointments closer to Stanford, but Dostal preferred to continue treating with Dr. Dacre.
12 Dr. Dacre added that it is not always easy to transfer a patient, and it is "generally frowned upon" to transfer a patient who is in the midst of treatment. He explained:
So patients don't – number one, they've established a provider that they either get along with or feel is treating them appropriately, and it becomes very difficult for them to, number one, wish to switch.
And number two, another physician may have a bit of a different plan. It may not always necessarily agree with what you've done. And it makes them hard to take – take the liability for that.
[F]rom my perspective as a treating physician, I have initiated treatment; it's my duty to carry that through. . . .13
¶ 13 Dr. Dacre testified that it is appropriate practice for him to follow patients whom he has operated on and he would generally not transfer a patient to another physician, even one within his practice, barring extraordinary circumstances. He explained that the operating physician would have the best knowledge of the patient's condition.
14Dr. Dacre further testified that patients in the midst of treatment are not generally transferred among surgeons.
15
¶ 14 On February 1, 2010, Dr. Dacre found that Dostal had a solid fusion, but that she needed to continue using prescription medications. Dr. Dacre opined that Dostal could return to some form of work with a lifting restriction. Dr. Dacre recommended that Dostal follow up with her primary care physician for her prescriptions, but noted he would continue to see her on an as-needed basis.
16 At the time of trial, Dostal had not treated with Dr. Dacre since the February 1, 2010, appointment.
17
¶ 15 On April 29, 2010, Dostal began to treat for her low back with Rosemary Youderian, FNP, a nurse practitioner who practices in Stanford.
18 Dostal testified that since she last saw Dr. Dacre in February 2010, her pain has increased and has spread from her low back down into her legs and higher into her back.
19 She has also experienced an increased burning sensation in her feet.
20 Dostal reported these symptoms to Youderian.
21
¶ 16 In her deposition, Youderian testified that she asked William Holmes, M.D., to review Dostal's chart to help Youderian make some decisions regarding Dostal's care. On March 30, 2010, Dr. Holmes recommended that Youderian refer Dostal to a pain management specialist.
22 However, the UEF did not authorize the referral.
23
¶ 17 On June 22, 2010, Youderian noted that Dostal reported increasing back pain. Dostal requested an MRI and Youderian noted that she would seek authorization for it. However, she later amended her medical note, stating:
After reviewing the lumbar myelogram report from Billings dated 1-22-2009, it would be in her best interest to have Dr. Dacre re-evaluate before any imaging studies are ordered. We will try to get authorization for her to see Dr. Dacre again.24
¶ 18 Youderian believed Dostal's MRI request was appropriate because of her change in back pain.
25 However, Youderian testified that she did not believe she should order this test without having Dostal evaluated by someone with more expertise, so she recommended that Dostal return to Dr. Dacre.
26 Youderian further noted that in reviewing Dostal's medical records, she realized Dostal would need a myelogram rather than an MRI because Dostal has hardware in her back.
27
¶ 19 On August 19, 2010, Youderian examined Dostal and found muscle spasm just above her surgical incision, limited lateral movement and twisting, and diminished reflexes. Youderian noted, "I feel the best option would be to get her back to the orthopedic surgeon (Dr. Dacre) for a re-evaluation."
28
¶ 20 Youderian also noted during the August 19, 2010, visit that Dostal was reporting worsening back pain.
29 Youderian observed evidence of muscle spasm and diminished DTRs, or deep tendon reflexes.
30 Youderian again suggested that Dostal return to Dr. Dacre for reevaluation.
31 Youderian sent a request for authorization to the UEF, but Rice denied the authorization.
32
¶ 21 On August 23, 2010, Youderian sent a request for authorization to the UEF asking for authorization for a referral to Dr. Dacre to evaluate Dostal's back and neck...
