39-71-704, MCA

MONTANA SUPREME COURT CASES

[1995] Hiett v. Missoula County Public Schools, 2003 MT 213 The phrase “achieving” medical stability and “achieved” medical stability as used in sections 39-71-116(25) and 39-71-704(1)(f), MCA (1995), respectively, mean the sustainment of medical stability. Given this interpretation, a claimant is entitled to such “primary medical services” as are necessary to permit him or her to sustain medical stability, which includes prescriptions for pain and depression prescribed for a claimant who has reached maximum medical healing, was not employed, and may well fall out of maximum healing without medication.

[1993] Wieglenda v. State Compensation Insurance Fund/Department of Labor and Industry, No. 97-045 (1997) (Unpublished opinion) 39-71-704(1)(f), MCA (1993). In an unpublished, nonciteable opinion, Supreme Court affirmed WCC determination that section 39-71-704(1)(f), MCA (1993) did not deny equal protection or due process by providing that insurer was not required to furnish maintenance care, in this case chiropractic care, to injured worker.

 
WORKERS' COMPENSATION COURT DECISIONS

Dostal v. Uninsured Employers' Fund [12/04/12] 2012 MTWCC 45 The Court rejected the UEF’s argument that it was within its rights to deny the referral to a pain management specialist requested by Petitioner’s treating physician on the grounds that the treating physician did not support the request with objective medical findings when the applicable version of the statute (1991) contained no such provision.

Dostal v. Uninsured Employers' Fund [11/05/12] 2012 MTWCC 41 Petitioner’s challenge to the validity of ARM 24.29.1409 is in line with the cases she cites.  Most pertinently, in another case, the Montana Supreme Court held that a rule which attempted to engraft an additional statutory provision was invalid.  If the legislature had envisioned a time limitation for § 39-71-704, MCA (1991), it would have included it in the statute.  Therefore the version of ARM 24.29.1409 which was in effect at the time of Petitioner’s industrial injury is invalid insofar as it attempts to engraft a time limitation upon § 39-71-704, MCA (1991).

Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 Although the claimant submitted no medical evidence, where the parties stipulated that the claimant suffered injuries and incurred medical expenses as a result of his industrial accident, the Court concluded that he is entitled to medical benefits pursuant to § 39-71-704, MCA.

Vandervalk v. Montana State Fund [11/05/09] 2009 MTWCC 35 Section 39-71-701(1)(d)(ii)(A), MCA, excludes from reimbursement the first 100 miles of qualified automobile travel for each calendar month. Since Petitioner’s pertinent travel consists of a round trip of 26 miles approximately every 90 days, he is not entitled for reimbursement of this travel expense.

Vandervalk v. Montana State Fund [11/05/09] 2009 MTWCC 35 Section 39-71-701(1)(d)(i), MCA, provides only for reimbursement of expenses incurred in traveling to a medical provider for treatment of an injury. A claimant’s trips to and from a pharmacy to fill prescriptions are not reimbursable travel expenses under § 39-71-701(1)(d)(i), MCA.
Palmer v. Safeco [12/22/06] 2006 MTWCC 44 Although Petitioner argued that the termination of his benefits pursuant to § 39-71-704(1)(e), MCA, after 60 consecutive months of non-use should be tolled because he was receiving medical treatment for difficulties which he was unaware stemmed from his industrial accident, the statute in question is not a statute of limitations but a statute of repose and cannot be tolled by the courts, but only by legislative mandate.
Palmer v. Safeco [12/22/06] 2006 MTWCC 44 Statutory language which terminates a cause of action on a date certain and independent of the accrual of a cause of action is a statute of repose. Since § 39-71-704(1)(e), MCA, meets these criteria, it is a statute of repose.
Hiett v. MSGIA [10/11/06] 2006 MTWCC 33 The Montana Supreme Court’s holding in Hiett v. Missoula County Pub. Sch., 2003 MT 213, 317 Mont. 95, 75 P.3d 341, has not abrogated the exclusion of palliative and maintenance care, nor has it wholly abrogated the secondary medical benefits provision, as found within this statute.
[1997] Smith v. Highlands Ins. Group [08/31/04] 2004 MTWCC 63 Section 39-71-704(6), MCA (1997-2003), and ARM 24.29.1404(1)(a) (2003), apply only to disputes over the amount of payment due a medical provider. They do not divest the Workers' Compensation Court of jurisdiction to adjudicate disputes where payment has been denied.
[1997] Simms v. State Fund [3/15/04] 2004 MTWCCC 27 Under the 1997 version of the Montana Workers' compensation Act, an insurer is not required to provide a claimant with a handicap accessible van to enable him to go to and from medical appointments. 39-71-704(1)(d), MCA (1997).
[2001] Liberty Mutual Fire Ins. v. Warner [3/9/04] 2004 MTWCC 24 Impairment awards payable to permanently totally disabled claimants are not subject to cost-of-living adjustments. 39-71-702(5), MCA (1995-2001).

[2001] Liberty Mutual Fire Ins. v. Warner [3/9/04] 2004 MTWCC 24 Impairment awards payable to permanently totally disabled claimants are not subject to cost-of-living adjustments. 39-71-702(5), MCA (1995-2001).

[1999] Bustell v. Ins. Co. of PA [2/26/03] 2003 MTWCC 11 Under section 39-71-704(a), MCA (1999), the petitioner is not entitled to reimbursement for home improvements, a handicap van, or a computer.
[1999] Markovich v. Helmsman Management Services [1/31/03] 2003 MTWCC 4 An insurer is liable only for medical conditions caused by the industrial accident.
[1995] Hiett v. MSGIA [9/6/01] 2001 MTWCC 52 Where claimant has reached MMI, is not working, and is unlikely to work, there is no provision in section 39-71-704, MCA (1995), which requires payment for her medications. See Hiett v. Missoula County Public Schools, 2003 MT 213.
[1995] Hiett v. MSGIA [9/6/01] 2001 MTWCC 52 After claimant has reached MMI, she is not entitled to continued coverage of prescription medications under provisions authorizing primary medical services, 39-71-704(1)(a), MCA (1995), because such services are defined as and limited to services "necessary for achieving medical stability." 39-71-116(25), MCA (1995) (emphasis added). See Hiett v. Missoula County Public Schools, 2003 MT 213.
[1995] Hiett v. MSGIA [9/6/01] 2001 MTWCC 52 Where claimant has reached MMI, is not working, and is unlikely to work, she is not entitled to continued coverage of prescription medications under provisions authorizing secondary medical services because the provision limits secondary medical services to cases in which there is "a clear demonstration of cost-effectiveness of the services in returning the injured worker to actual employment." 39-71-704(1)(b), MCA (1995). See Hiett v. Missoula County Public Schools, 2003 MT 213.
[1991] Wiard v. Liberty Northwest Ins. Corp. [7/20/01] 2001 MTWCC 31A Prosthetic exception to the rule providing that medical benefits terminate if not used for 60 continuous months applies only to the replacement or repair of a preexisting prosthesis.
[1991] Wiard v. Liberty Northwest Ins. Corp. [7/20/01] 2001 MTWCC 31A Bony fusion of cervical vertebrae does not constitute a prosthesis under section 39-71-704(1)(d), MCA (1991).

[1987] Petry v. National Union Fire Ins. [8/28/00] 2000 MTWCC 52 Unlike subsequent statutes, section 39-71-704(1), MCA (1987) does not expressly require compensation for travel expenses. Consistent with prior decisions of the WCC, the statute is interpreted to require reimbursement for out-of-town travel, but not for in-town mileage.

[1997] Parmer v. State Fund [6/9/00] 2000 MTWCC 33 Where claimant had reached MMI, chiropractic services did not constitute "primary medical services" within section 39-71-704, MCA (1997). Chiropractic care may qualify as secondary services, but must meet the requirement of "clear demonstration of cost-effectiveness of the services in returning the injured worker to actual employment" in section 39-71-704(1)(b), MCA. Further, claimant has not demonstrated that chiropractic treatments should be prescribed as palliative care which would, under section 39-71-704(1)(g), MCA, "enable the worker to continue current employment or that there is a clear probability of returning the worker to employment."

[1995] Harned v. State Fund [6/8/99] 1999 MTWCC 38 Section 39-71-704(1)(a), MCA, 1995. Treating physician's opposition to surgery recommended by independent medical examiner to which claimant was referred as part of managed care organization handling of case was not fatal to demand for surgery based on recommendation of IME physician/surgeon.

[1993] Thirsk v. State Fund [5/11/99] 1999 MTWCC 34 Claimant sought compensation for 56 chiropractic adjustments over 9 month period, all incurred after insurer informed him it would no longer cover chiropractic treatment for him. Persuasive medical evidence, along with statements made by claimant, indicated claimant had reached maximum medical healing and the chiropractic treatments were maintenance treatments, not actually leading to improvement in claimant. WCC held that under section 39-71-704, MCA (1993), the insurer was responsible for primary and secondary medical services as defined in the statute. Under the circumstances of this case, the chiropractic treatments were not primary medical services. The insurer was liable for secondary medical services only upon a clear demonstration of cost effectiveness of the services in returning the injured worker to actual employment. Claimant did not make this demonstration. Indeed, the evidence showed the treatments provided no more than temporary relief and did not improve his condition.

[1997] Parham v. State Fund [3/17/99] 1999 MTWCC 24 While there was conflicting evidence on the need for a second surgery to claimant's spine, the WCC credited Dr. Mosely's explanation of the need for surgery, including that claimant's spine is now vulnerable to more serious injury. The insurer is liable for the second surgery as a reasonable primary medical service within sections 39-71-116(26) and -704(1)(a), MCA (1997).
[1979] Murphy v. CIGNA Companies [10/15/98] 1998 MTWCC 73 A 73-year old claimant receiving PTD benefits following severe 1979 back injury sought coverage of chiropractic treatment on as-needed basis for flare-ups of back condition. Chiropractor testified flare-ups were inevitable and treatments provided only temporary relief. WCC followed Synek v. State Compensation Mutual Ins. Fund, WCC No. 9401-6989, Order on Appeal (August 26, 1994), aff'd 272 Mont. 246, 900 P.2d 884 (1995), which applied section 39-71-704, MCA, and ARM 24.29.2003 and -2004, to find not compensable chiropractic treatments providing only temporary relief and not restoring claimant to either a preclinical or stationary status.
[1993] Wieglenda v. State Compensation Insurance Fund [10/23/96] 1996 MTWCC 67 (WCC No. 9606-7562) Section 39-71-704(1)(f), MCA (1993), and other statutory and regulatory provisions, do not deny equal protection or due process by providing that an insurer is not required to furnish maintenance care. [Note: WCC was affirmed by the Supreme Court in an unpublished, nonciteable opinion, Wieglenda v. State Compensation Insurance Fund/ Department of Labor and Industry, No. 97-045 (1997).]