39-71-704, MCA

39-71-704, MCA

MONTANA SUPREME COURT CASES

Newlon v. Teck American, Inc. [11/10/15] 2015 MT 317, 381 Mont. 378, 360 P.3d 1134 The tenet of freedom of contract allows a party to a settlement agreement to make a promise that is durable beyond the limits of the 60-months rule. Therefore, where the parties agreed to settle the claimant’s claim for $25,000 and lifetime medical benefits for his knee and back condition, the claimant was entitled to those benefits notwithstanding a gap of more than 60 months in his treatment.

Newlon v. Teck American, Inc. [11/10/15] 2015 MT 317, 381 Mont. 378, 360 P.3d 1134 Although the 60-month rule was in effect at the time the parties agreed to settle the claimant’s claim for $25,000 and lifetime medical benefits for his knee and back conditions, the court found no provision which prevented the employer from contracting around the statute or from promising more than is provided in the statute. With no conflict with the relevant statutes, the court found that the promise of lifetime care is not an illegal objective. Under a legal contract, a deal is a deal.

[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[1993] Wieglenda v. State Compensation Insurance Fund/Department of Labor and Industry, No. 97-045 (1997) (Unpublished opinion) 39-71-704(1)(f), MCA (1993). In an unpublished, nonciteable opinion, Supreme Court affirmed WCC determination that section 39-71-704(1)(f), MCA (1993) did not deny equal protection or due process by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

Barnhart v. Liberty Northwest Ins. Corp. [09/13/16] 2016 MTWCC 12 This Court rejected the insurer’s position that it should not be held liable for any future medical treatment of the claimant’s neck condition because it alleged that previous treatment had been ineffective, stating that this Court could not give an advisory opinion when it did not know what treatment the claimant’s physicians might recommend in the future.

McNamara v. MHA Workers' Compensation Reciprocal [05/25/16] 2016 MTWCC 5 The medical condition for which compensation is sought must be caused by the industrial accident. Where claimant’s treating physician testified that her need for a total knee replacement was a foregone conclusion prior to her industrial injury, and that she would have required the surgery regardless of her injury, claimant failed to prove her surgery was compensable.

Moreau v. Transportation Ins. Co. [08/26/15] 2015 MTWCC 17 Section 39-71-704, MCA, places the responsibility to pay medical benefits solely on the insurer and does not state that an entity other than the insurer can pay medical benefits.

Nelson v. Montana Schools Group Ins. Auth. [05/28/14] 2014 MTWCC 15 Where Petitioner never submitted a request for reimbursement for travel expenses for unauthorized treatment with her out-of-state surgeon in 2011 and 2012, she is not entitled to travel reimbursement pursuant to § 39-71-704(1)(d)(ii)(C), -704(1)(d)(ii)(D), MCA.

Newlon v. Teck American Inc. (Formerly Cominco) [05/08/14] 2014 MTWCC 12 Where Respondent did not dispute that Petitioner met the six factors of equitable estoppel, but rather raised jurisdictional arguments against estoppel which this Court rejected, the Court concluded that Respondent was equitably estopped from denying payment of Petitioner’s medical benefits under § 39-71-704(1)(d), MCA.

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).

Keller v. Montana University System Self Funded Workers' Compensation Program [08/08/12] 2012 MTWCC 30 The Petition alleges an injury from “mandatory treatment.” The insurer argues that under § 39-71-704(1)(d)(iii), MCA, it has no liability for injuries caused by accidents occurring during treatment. Since nothing in the Petition allows the Court to construe Petitioner’s treatment as an “accident” under § 39-71-119, MCA, a material issue of fact remains as to whether Petitioner’s treatment can constitute an accident. The motion for judgment on the pleadings is denied.

Dauenhauer v. Montana State Fund [07/03/12] 2012 MTWCC 22 Seeking authorization for legitimate, reasonably necessary medical treatment causally related to an accepted injury claim within 60 consecutive months of the last treatment constitutes “use” under § 39-71-704(1)(e), MCA. Otherwise, if the insurer denies authorization and the claimant cannot afford the treatment, the insurer could evade payment of medical benefits until the 60 months had run and then simply close its file.

Stewart v. Liberty Northwest Ins. Corp. [04/11/12] 2012 MTWCC 11 Although Petitioner’s treating physician could not opine on a more-probable-than-not basis that Petitioner’s knee injury or resulting surgeries were causally related to the chronic pain condition, a physician who performed an independent medical review of the case did so. The Court concluded that the testimony of the two doctors, taken together, was sufficient to prove a causal connection between Petitioner’s industrial accident and her chronic pain condition.

Schellinger v. St. Patrick Hospital and Health Sciences Center [03/23/12] 2012 MTWCC 10 The purpose of the statute of repose is to protect insurers by providing them timely notice that a claimant is making a claim for benefits. Petitioner continually sought treatment for her psychological and cognitive difficulties despite Respondent’s denial of liability. After this Court ruled that Petitioner’s condition was compensable, she sent Respondent two written demands for payment of her medical treatment. Petitioner’s treatment and demands for payment were made within the 60-month period afforded pursuant to § 39-71-704(1)(e), MCA. Therefore, her claim is not barred by the statute of repose.

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).

[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).]