THOMAS C. MILLARD, Claimant,
v.
ABCO CONSTRUCTION, INC., Employer,
and
THE WORKER’S COMPENSATION FUND OF UTAH, Surety, Defendants.
No. IC 2007-008413
Idaho Workers Compensation
Before the Industrial Commission of the State of Idaho
August 21, 2015
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDATION
R.D.
Maynard, Chairman
INTRODUCTION
Pursuant
to Idaho Code § 72-506, the Idaho Industrial Commission
assigned the above-entitled matter to Referee Brian Harper,
who conducted a hearing in Pocatello, Idaho, on October 24,
2014. Claimant was represented by James D. Ruchti, of
Pocatello. R. Daniel Bowen, of Boise, represented Employer
and Surety. Oral and documentary evidence was admitted.
Post-hearing depositions were taken and the parties submitted
briefs. The matter came under advisement on May 5, 2015.
ISSUES
The
issues at the time of hearing included:
1. Whether Defendants paid all medical benefits and
corresponding travel expenses to which Claimant is entitled
for disputed physical therapy and past spinal steroid
injection treatments.
2. The extent of Surety's obligation to continue to pay
for on-going and future anticipated spinal steroid treatments
under the reasonable and necessary medical treatment standard
in Idaho Code § 72-432.
3. Whether, and to what extent, payment of Claimant's
past medical bills are subject to the Neel Doctrine.
4. Whether, and to what extent, Claimant is entitled to
attorney fees under Idaho Code § 72-804.
By the
time the matter came under advisement, Surety had paid all
remaining physical therapy bills at the fee schedule rate; it
remains an issue whether such bills should be paid at full
invoiced price. Mileage for such treatment has been paid. Dr.
Garg's treatments between October 2012 and October 2013
remain contested.
CONTENTIONS
OF THE PARTIES
Claimant,
a totally and permanently disabled individual, previously
settled his worker's compensation claim against
Defendants, but the agreement left open continuing medical
care and related charges. Currently, there is an issue of
compensability for previous epidural steroid injections
(ESI)
1 given between October 2012, and October
2013. This claim includes travel expenses associated with
these injections.
Claimant
also seeks attorney fees for Surety's unreasonable delays
in paying for certain physical therapy treatments and related
travel expenses, as well as for delays in paying for
prescription drugs. Lastly, Claimant argues he is entitled to
reimbursement of all medical expenses at issue at full
invoice rates, pursuant to the Neel Doctrine.
Defendants
deny compensability for ESI treatments given from October
2012 through October 2013. They also seek a determination
that future ESI treatments are not reasonable and necessary,
and thus not compensable. Defendants deny they owe attorney
fees under Idaho Code § 72-804. They argue Neel
is inapplicable to the current facts.
EVIDENCE
CONSIDERED
The
record in this matter consists of the following:
1.
Claimant's testimony, taken at hearing;
2. The
hearing testimony of witnesses Janet Harris, Trudi Beck, and
Carole Carr;
3.
Joint Exhibits (JE) 1through 59, (which includes
Defendants' Additional Exhibits 55 through 59), admitted
at hearing; and as detailed below, Claimant's Exhibits
(CE) 60, 61, and 62;
4. The
post-hearing deposition transcript of David Beckstead, M.D.,
taken on December 9, 2014;
5. The
post-hearing deposition transcript of Vikas Garg, M.D., taken
on December 11, 2014; and
6. The
post-hearing deposition transcript of Paul Collins, M.D.,
taken on January 15, 2015.
All
pending objections to questions or testimony, preserved
during post-hearing depositions, are overruled. Defendants
objected to the introduction of Claimant's proposed
Exhibits 60 through 62, proffered during Dr. Garg's
deposition. The objection is overruled and Claimant's
Exhibits 60, 61, and 62 are admitted.
Having
considered the evidence and written briefs of the parties,
the Referee submits the following findings of fact and
conclusions of law for review by the Commission.
FINDINGS
OF FACT
1.
Claimant, a resident of Preston, Idaho, was rendered totally
and permanently disabled as the result of an industrial
accident in October 2006, while working for Employer, a Utah
construction firm. His injuries left him with constant back
and left lower extremity pain to varying degrees of severity,
neck and shoulder pain, and a traumatic brain injury. His
bodily injuries left him limited in his daily activities. His
brain injury affected his cognition, emotions, attention and
memory, and social skills, including anger-management issues.
2.
Surety Workers Compensation Fund of Utah originally handled
Claimant's case as a Utah claim. After the case entered
litigation, Surety eventually transferred it to third-party
administer Pinnacle Risk Management Services in Boise, which
has handled the claim thereafter to the present. Pinnacle and
its adjuster are also listed herein as "Surety".
3.
Claimant settled his litigation with a lump sum agreement.
The settlement agreement left his medical charges
"open." The "open meds" provision is at
the root of this dispute. More particularly, the dispute
herein at its core springs from the workings of Idaho Code
§ 72-432.
4.
Claimant lives some distance from most of his medical
providers. Originally he primarily treated with a physician
in the Salt Lake City area; more recently he sought care from
doctors in Logan, Utah, and his local physician for
medication management.
DISCUSSION
AND FURTHER FINDINGS
5.
Idaho Code § 72-432(1) mandates that an employer shall
provide for an injured employee such reasonable medical care
and treatment as may be reasonably required by the
employee's physician or needed immediately after an
injury, and for a reasonable time thereafter. If the employer
fails to provide such care and treatment, the injured
employee may obtain such at the expense of the employer.
However, a claimant is not allowed to seek medical care on
his own unless the employer fails to provide the
same. Should a claimant wish to seek care from a physician
other than the one(s) provided by an employer, Idaho Code
§ 72-432(4) provides a procedure for a claimant to seek
such change of physician. Idaho Code § 72-432(5) makes
it clear that if a claimant seeks care apart from the
physician(s) provided by the employer, and without
authorization of employer or its surety, or order of the
Commission, claimant shall not be reimbursed for the cost of
such care.
Dr.
Garg's Treatment from October 2012 to October 2013
6. From
October 2012 until October 2013, Claimant sought care from
Vikas Garg, M.D. of Logan, Utah without prior authorization
of Surety. Thereafter, Surety authorized continuing treatment
with Dr. Garg.
2 Defendants' position is clear and
straight forward – Dr. Garg was not an authorized
treater during the 2012 – 2013 time frame, and thus
under Idaho Code § 72-432(5), such treatment is not
reimbursable. Claimant argues that Surety's failure to
provide reasonable treatment, or even respond in a meaningful
way to Claimant's request for change of physician,
allowed him to seek treatment with Dr. Garg at Surety's
expense.
7.
Claimant incorrectly argues that he first requested a change
of physician on May 25, 2012, with a renewal of that request
on May 30. The letters cited by Claimant were written as part
of settlement negotiations, and only mentioned Claimant's
desire, as part of settlement, to "meet with a physician
who will perform a comprehensive evaluation of his
condition." JE 22, p. 897. In that same letter, Claimant
reiterated that he "is not asking for additional
diagnostic tests or other studies," he simply wanted
"an appropriate physician to review those tests and
studies, review the appropriate medical records, perform a
physical examination on him, and give [Claimant] an
opportunity to discuss his physical/medical complaints."
Id. Later in that settlement proposal letter,
Claimant noted that once this doctor prepared his report on
the comprehensive exam, the parties could "decide where
to go from there" to meet Claimant's future medical
needs. Id at 898. This May 25 letter suggested an
examination more in line with an IME than a change of
physician. However...