Millard v. Abco Construction, Inc., 082115 IDWC, IC 2007-008413

Case DateAugust 21, 2015
CourtIdaho
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...

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