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1998 MTWCC 20
WCC No. 9710-7842
KEITH WARREN SMITH
OLD REPUBLIC INSURANCE COMPANY
BOISE CASCADE CORPORATION
Summary: The insurer accepted liability for injuries sustained by claimant and paid benefits. Believing he may have thoracic outlet syndrome, claimant asked his treating physician whom he might visit for that problem. The treating physician, who himself had no reason to believe claimant in fact had thoracic outlet syndrome, mentioned to local physicians expert in that problem. Not satisfied with those names, the claimant asked for another name. He and the physician then discussed a doctor in Seattle whom claimant had seen for other problems. After learning claimant desired to travel to Seattle to see this physician for this problem, the insurer notified him it would not cover that visit. Claimant petitioned the Court to compel covering of expenses associated with the out-of-state evaluation he obtained.
Held: Petition denied. Claimant is not entitled to reimbursement for out of state assessment for thoracic outlet syndrome where no doctor had diagnosed claimant with the syndrome and his treating physician had only referred claimant to the Seattle physician to accommodate claimant's request that he be evaluated for the condition and only after claimant had rejected the doctor's recommendation that he consult one of two in-town physicians with expertise in the area.
¶1 The trial in this matter was held in Billings, Montana on February 2, 1998. The petitioner, Keith Warren Smith (claimant), was present and represented himself. The respondent, Old Republic Insurance Company (Old Republic), was represented by Mr. Robert E. Sheridan.
¶2 Witnesses: Keith Warren Smith and Gary Doerr were sworn and testified.
¶3 Exhibits: Exhibits 1 was admitted over objection. Exhibits 2 through 5, 18 and 19, 21 through 31 and 33 were admitted without objection. Exhibits 7 through 9, 11 through 15, 17 and 32 were withdrawn. Exhibit 10 was not admitted. There were no Exhibits 6, 16, or 20.
¶4 Depositions: The parties agreed that the deposition of Dr. Thomas R. Johnson can be considered part of the record.
¶5 Issues: The controversy in this case arises out of the refusal of Old Republic to pay for a July 25, 1997 medical examination of claimant by Dr. Frederick A. Matsen, III and for claimant's travel expenses to Seattle, Washington, where the examination was conducted. The issues, as phrased in the Pretrial Order, are as follows:
(Pretrial Order at 2-3.)
¶6 At the close of trial, the Court questioned the phrasing of the issues in light of the evidence presented. The second issue is nothing more than a restatement of the first. If that issue is construed literally, the Court need only determine whether ARM 24.29.1403 (1991), which requires the insurer's prior approval of a consultation by a specialist, is applicable to this case and, if so, whether the doctrine of either estoppel or laches precludes Old Republic from invoking the regulation. Answers to those questions do not resolve the merits of the dispute. Old Republic is not automatically liable for Dr. Matsen's examination. It is responsible for the examination only if the referral to and examination by Dr. Matsen were medically reasonable. On the other hand, Old Republic is not automatically relieved of liability even if the prior approval requirement applies; its decision is reviewable on its merits by this Court, Ingraham v. Champion International, 243 Mont. 42, 793 P.2d 769 (1990).
¶7 Much of the evidence presented at hearing concerned the merits of Old Republic's determination disapproving Dr. Matsen's examination. In response to the Court's questions concerning the phrasing of the issues, Old Republic moved to conform the issues to the evidence. The motion is granted. It is evident that the parties did not intend that the Court answer abstract questions of law, rather they intended that the Court decide whether the claimant is entitled to payment of Dr. Matsen's bill and for travel reimbursement. Therefore, the following issue is added:
¶8 Having considered the Pretrial Order, the trial testimony, the demeanor and credibility of the witnesses, the exhibits, the deposition, and the arguments of the parties, the Court makes the following:
¶9 Claimant resides in Roundup, Montana.
¶10 On June 14, 1990, the claimant injured his shoulder and low back while in the course and scope of his employment for Boise Cascade Corporation.
¶11 At the time of the industrial injury, Boise Cascade was insured by Old Republic. Old Republic accepted liability for claimant's injury and paid compensation and medical benefits.
¶12 On December 15, 1992, claimant and Old Republic entered into a written settlement agreement with respect to claimant's future entitlement to benefits. The agreement, which was approved by the Department of Labor and Industry, reserved future hospital and medical benefits to claimant.
¶13 Claimant's primary injury was to his left shoulder. He was initially treated by Dr. Willard J. Hull, who performed a rotator cuff repair in October 1990. Claimant thereafter sued Dr. Hull.
¶14 Claimant returned to work in March 1991 but continued to have shoulder pain. He discontinued work on June 17, 1991, and thereafter, on September 19, 1991 sought further medical advice from Dr. Thomas R. Johnson. (Ex. 4 at 15.) Dr. Johnson diagnosed a "recurrent tear of [the] rotator cuff." (Id.)
¶15 Since September 1991, Dr. Johnson has been claimant's primary treating physician with respect to his 1990 injury.
¶16 Dr. Timothy Browne, an orthopedic surgeon practicing in Missoula, conducted an independent medical examination (IME) on September 6, 1991, at the request of Old Republic's adjuster. He reached the same conclusion as Dr. Johnson, to wit: claimant was suffering a recurrent rotator cuff tear. (Ex. 3 at 2.)
¶17 Dr. Johnson recommended a further consultation with one of two "world authorities on shoulder problems." (Ex. 4 at 15.) One of the two was Dr. Frederick Matsen, III, who practices in Seattle, Washington. Old Republic approved the consultation, and claimant saw Dr. Matsen in Seattle on October 11, 1991. Old Republic paid Dr. Matsen's medical bill and for claimant's travel to Seattle.
¶18 Dr. Matsen confirmed a recurrent tear of the rotator cuff. He recommended an initial trial of physical therapy. If that was unsuccessful, he recommended further rotator cuff surgery. (Ex. 5 at 3.) He referred claimant back to Dr. Johnson, stating, "Dr. Johnson would be imminently qualified to do this [the additional] surgery if he felt so inclined." (Id. at 4.)
¶19 Physical therapy was unsuccessful and on February 4, 1992, Dr. Johnson performed additional surgery on claimant's left shoulder. (Ex. 4 at 24.)
¶20 The February 4, 1992 surgery did not resolve claimant's symptoms. Over the next five years, claimant continued to have shoulder pain and on February 20, 1997, Dr. Johnson noted that claimant was having "occasional sharp shooting-like pain about the left shoulder that radiates down to the base of the hand, the hypothenar area of the hand." On February 20, 1997, claimant reported that his symptoms were different than his prior shoulder complaints. Dr. Johnson's impression was that "he may be getting some intermittent irritation of one of the cervical nerve roots." However, the doctor did not feel the symptoms were sufficiently severe to warrant treatment. (Ex. 4 at 2.)
¶21 In a May 8, 1997 visit to Dr. Johnson, claimant broached the possibility that he might be suffering from thoracic outlet syndrome. Dr. Johnson suggested claimant might see one of two Billings doctors with expertise in thoracic outlet syndrome. The doctor's office note for that date reflects:
(Ex. 4 at 1.)
¶22 Until the time of Dr. Johnson's examination of claimant on May 8, 1997, Dr. Johnson had not entertained the possibility of thoracic outlet syndrome. Concerning the possibility, Dr. Johnson testified as follows:
(Johnson Dep. at 11.)
¶23 Thereafter, at the request of claimant, Dr. Johnson wrote a letter referring claimant back to Dr. Matsen for reevaluation. The letter, dated July 2, 1997, read as follows:
¶24 Dr. Johnson did not believe there was any emergency for claimant to see Dr. Matsen. He also did not believe that claimant's complaints required a referral to a physician outside of Billings. He identified Dr. Moseley and Dr. Cook, who both practice in Billings, as capable of determining whether claimant suffered from thoracic outlet syndrome. (Johnson Dep. at 15.) Indeed, he wrote the July 2, 1997 letter referring claimant to Dr. Matsen simply because claimant expressed a desire to see Dr. Matsen. (Id.)
¶25 With Dr. Johnson's July 2, 1997 letter in hand, claimant requested Old Republic to authorize an examination by Dr. Matsen and pay his travel expenses to Seattle for the examination.
¶26 Gary F. Doerr (Doerr), the claims adjuster in charge of claimant's case, requested further information from Dr. Johnson. On July 21, 1997, Doerr received a call from Dr. Johnson's office advising him that the visit to Dr. Matsen did not constitute a medical emergency.
¶27 Based on the call, Doerr wrote a letter to claimant advising him that he was not authorizing a visit to Dr. Matsen and telling him, "I cannot authorize out of state medical referrals unless they are medically necessary." (Ex. 25.)
¶28 On July 31, 1997, Doerr received a follow-up letter from Dr. Johnson. (Ex. 27.) In the letter, Dr. Johnson specifically replied to questions Doerr had posed in a July 21, 1997 letter to the doctor. (Ex. 24.) Dr. Johnson's letter shows that his referral of July 2, 1997, of claimant to Dr. Matsen was solely in deference to claimant's request for the referral. The paragraphs numbered 3 and 4 in the letter, which is set out in full below, are the critical paragraphs:
¶29 Claimant received Doerr's July 21 denial letter (Ex. 25) prior to his departing for Seattle. Despite notice that Old Republic would not authorize the visit to Dr. Matsen and would not pay his travel expenses, claimant nonetheless went to Seattle and saw Dr. Matsen. He now seeks an order directing Old Republic to reimburse him for his travel and pay Dr. Matsen's medical bill.
¶30 Dr. Matsen examined claimant on July 25, 1997. He reported his findings to Dr. Johnson in a letter of the same date. (Ex. 33.) The letter did not specifically address claimant's belief that he might be suffering from thoracic outlet syndrome. It merely set forth his symptoms and then stated:
¶31 Gary Doerr testified that irrespective of ARM 24.29.1403 (1989) he would have disapproved claimant's July 25, 1997 visit to Dr. Matsen because it was not medically necessary or reasonable. His testimony on this point was credible and persuasive.
¶32 Claimant has brought medical malpractice actions against a Billings hospital and at least two Billings physicians with respect to his medical care. He testified that, other than Dr. Johnson, he no longer trusts Billings physicians and hospitals. His lack of trust is one of the reasons he sought a further consultation by Dr. Matsen.
¶33 Claimant's blanket rejection of possible referrals to other Billings physicians and care at the other Billings' hospital is unreasonable. While he expressed his strong sentiment that he would not want to be treated at the other hospital, he gave no good reason for that opinion, and certainly provided no facts supporting his sentiment. He did not inquire as to Dr. Moseley's or Dr. Cook's qualifications or as to the hospital where they perform surgery.
¶34 As to substantive rights, the law in effect at the time of the claimant's injury governs his entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶35 Section 39-71-704(1), MCA (1989), governs claimant's entitlement to medical benefits. It provides in relevant part:
The medical benefits provided under section 39-71-704, MCA (1989), are substantive and therefore apply. Later amendments to the section are therefore ignored.
¶36 In 1972, the Department of Labor and Industry (Department) adopted rules concerning the selection of a physician to treat an industrial injury. It adopted ARM 24.29.1403, which provides, as relevant to this case:
The foregoing regulation was invoked by Old Republic as the initial basis for its denial of Dr. Matsen's bill and claimant's travel expenses.
¶37 In 1993 the regulation was repealed and a new regulation -- ARM 24.29.1511 -- was adopted. 1993 MAR at 404. The new regulation provides in relevant part:
As readily apparent, the new regulation does not require an emergency as a prerequisite to a referral.
¶38 Statutes and regulations which do not affect the rights of the parties, and which govern only the procedures for implementing those rights, may be applied with respect to past injuries. State Compensation Mut. Ins. Fund v. Sky Country, Inc., 239 Mont. 376, 379, 780 P.2d 1135, 1137 (1989).
¶39 If ARM 24.29.1403 is interpreted as a substantive provision, it must give way if in conflict with statutes governing medical benefits, specifically, section 39-71-704, MCA (1989). Michels v. Department of Social and Rehabilitation Services, 187 Mont. 173, 178, 609 P.2d 271, 273 (1980) ("Whatever force and effect the regulation has must derive from the statute under which it is enacted, and a regulation in conflict with that statute is without effect."). Section 39-71-704, MCA (1989), does not limit medical care to "emergency care," rather it authorizes "reasonable services." Insofar as ARM 24.29.1403(3) (1989) purports to limit speciality referrals to emergencies, and thereby deny claimant reasonable medical care by specialist physicians, it conflicts with the statute and is void.
¶40 Insofar as the regulation merely requires that the insurer review the proposed referral to determine if it is medically reasonable, ARM 24.29.1403(3) is consistent with the statute. However, construed in that vein, the regulation is procedural and does not apply to decisions made after its repeal on April 1, 1993.
¶41 I therefore conclude that ARM 24.29.1403(3) (1989) does not affect the claimant's entitlement to payment for Dr. Matsen's July 25, 1997 examination or claimant's travel to Seattle for that examination.
¶42 It is clear that in denying liability for the referral to Dr. Matsen, the claims adjuster was looking beyond the bare fact that no emergency existed. While he denied permission for the referral, at the same time he was seeking information as to whether a further medical consultation was medically necessary and, if so, whether such consultation could be reasonably provided by other physicians in Billings. (Ex. 24.)
¶43 Claimant has the burden of proving his entitlement to benefits with respect to his July 25, 1997 visit to Dr. Matsen. Ricks v. Teslow Consolidated, 162 Mont. 469, 483-84, 512 P.2d 1304 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 201, 598 P.2d 1099 (1979). Part of claimant's burden is to prove that the examination by Dr. Matsen, and the need to travel to Seattle for the examination, were medically reasonable. He has failed to sustain his burden.
¶44 Claimant's belief that he might be suffering from thoracic outlet syndrome was not supported by Dr. Johnson. Although Dr. Johnson conceded that thoracic outlet syndrome was one possibility in a differential diagnosis, there is no evidence that he ever seriously considered it. His medical notes and testimony demonstrate his opinion that claimant did not need surgery and that any medical work-up concerning possible thoracic outlet syndrome could be done by specialists in Billings. Dr. Johnson's correspondence and testimony reflect the fact that his referral of claimant back to Dr. Matsen was not based on an opinion that such referral was necessary or reasonable, rather the referral was no more than an accommodation of claimant's wish to see Dr. Matsen. The referral has no better basis than the one which this Court rejected in Mischelle Schelske v. Liberty Northwest Ins. Corp., WCC No. 9310-6925 (April 21, 1994), aff'd, 270 Mont. 527, 892 P.2d 572 (1995).
¶45 Claimant contends that Old Republic's prior payment for his medical visits to Dr. Matsen estop Old Republic from denying payment for the July 25, 1997 visit. One of the essential elements of estoppel is reliance. Kuzara v. State Compensation Ins. Fund, 279 Mont. 223, 231, 928 P.2d 136, 141 (1996). That element is wholly lacking. Old Republic notified claimant, prior to his leaving for Seattle, that it would not authorize or pay for the visit. In light of the notification, any reliance on the prior payments was unreasonable. His estoppel argument fails.
¶46 Claimant asserts that the doctrine of laches requires payment for his visit to Dr. Matsen. Laches is an equitable doctrine which bars an action as untimely where "the passage of time has prejudiced the party asserting it [the doctrine] or has rendered the enforcement of a right inequitable." Helena Aerie No. 16, F.O.E. v. Montana Dept. of Revenue, 251 Mont 77, 81, 822 P.2d 1057, 1059 (1991). The doctrine is an equitable statute of limitations and has no application here. The insurer gave clear, unequivocal notice that it was denying the benefits sought by claimant. Claimant's action was brought promptly and there is no delay to consider.
¶47 1. The subject matter of this action concerns claimant's alleged entitlement to medical benefits. The Court has jurisdiction. § 39-71-2905, MCA.
¶48 2. Claimant is not entitled to medical benefits with respect to his visit to Dr. Matsen on July 25, 1997.
¶49 3. Claimant is not entitled to travel expenses in connection with his visit to Dr. Matsen on July 25, 1997.
¶50 4. Claimant is not entitled to any other relief with respect to his present petition.
¶51 5. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶52 6. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 4th day of March, 1998.
c: Mr. Keith Warren Smith -
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