No. 04-323
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 175
RANDALL SIMMS,
Petitioner and Appellant,
v.
STATE COMPENSATION INSURANCE FUND,
Respondent and Respondent.
APPEAL FROM: The Workers’ Compensation Court, Cause No. 2003-0852,
Honorable Mike McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana
For Respondent:
Thomas E. Martello, Legal Counsel, Helena, Montana
Submitted on Briefs: October 6, 2004
Decided: July 12, 2005
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Randall Simms (Simms) appeals from a judgment entered by the Workers’
Compensation Court (WCC) on March 15, 2004, dismissing, without prejudice, Simms’
petition to require the Montana State Fund (State Fund) to furnish him a handicapped
accessible van. We affirm.
¶2 We address the following issue:
¶3 Did the WCC err by denying the claimant’s petition for provision of a handicapped
accessible van?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On May 3, 1999, while working as a glazier for Bozeman Glass, Simms suffered a
laceration to the radial artery of his right forearm. Immediately following his injury, Simms
was treated at the Bozeman Deaconess Hospital emergency room where the laceration was
repaired. The following day, May 4, 1999, Simms developed volar compartment syndrome,
which was treated with a fasciotomy, arterial repair and secondary closure. Subsequently,
Simms developed complex regional pain syndrome (CRPS), also known as reflex
sympathetic dystrophy (RSD). At the time of the injury, Bozeman Glass was insured by
State Fund, who has accepted liability for Simms’ industrial injury.
¶5 RSD is a malfunction of the central nervous system which involves the sending of
abnormal pain signals from non-painful stimulae. RSD initially affected Simms’ arms and
was treated by the implantation of a spinal cord stimulator in his cervical area, but the
condition thereafter progressed to his legs and a second spinal cord stimulator was implanted
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near his lumbar spine. Although Simms is primarily confined to a wheelchair, Dr. John C.
Oakley (Dr. Oakley) testified that Simms is able to make some standing transfers.1 Dr.
Oakley, who testified by deposition, is a board certified specialist in neurosurgery and pain
management and has treated Simms since 1999.
¶6 In late January 2002, at the request of State Fund, Simms was examined at Progressive
Rehabilitation Associates (PRA) in Portland, Oregon. Simms went through a four-week out-
patient multi-disciplinary pain management program to determine an appropriate treatment
plan to help him function. PRA diagnosed Simms’ whole person impairment to be 71
percent, but determined that he was capable of performing full-time sedentary work. PRA
also indicated a vehicle with a wheelchair lift would be very helpful in assisting Simms with
his transportation needs, and would give him the opportunity to get out of the house more
often. Dr. Oakley concurred with Simms’ diagnosis, but disagreed with PRA’s determination
that Simms was employable, deeming him permanently totally disabled.
¶7 On July 30, 2002, Dr. Oakley wrote a prescription for a handicapped accessible van,
noting Simms’ need for physical therapy in Bozeman and follow-up visits in Billings every
one to three months. Dr. Oakley testified that a van would help Simms obtain psychiatric
counseling, if an appropriate psychological resource was found, and further stated a van
would enable Simms to get out more, thereby improving his mental health.
1
While Simms takes issue with this finding in a footnote, he does not challenge the
finding with argument, stating only that the “error is of little or no import.”
3
¶8 Simms is now deemed permanently totally disabled with no reasonable prospect of
performing gainful employment. Although Simms suffered a vertebral compression fracture
in the summer of 2003, Dr. Oakley testified that Simms remains at maximum medical
improvement (MMI) and there is no curative treatment for RSD on the horizon. Simms’
compression fracture was due to bone density loss, a result of his immobility, and, as a result,
he needs physical therapy three times a week to minimize bone density loss. Bozeman is the
nearest appropriate physical therapy facility, because in-home therapy and treatment in
Livingston are unavailable, due to the type of exercise equipment needed.
¶9 Simms’ present transportation, outside of his home, is by wheelchair and car. In
good weather he is able to drive the wheelchair on and across Livingston streets. While
Simms is unable to drive a van or any other vehicle, he does own a car and utilizes the car
to travel from his home. Since Simms cannot drive, his wife, after Simms transfers to the
car, loads the portable wheelchair and drives the car. Simms goes out in the car six to seven
times a month to shop or just for a “drive.” Livingston also has a public wheelchair
accessible van, but Simms states the public van’s schedule makes it inconvenient for him to
use, and in snowy weather, the van will not come up the road to his house. Simms offers that
he has difficulty making medical appointments due to transportation issues, but he has not
asked State Fund to arrange transportation for medical services. Rather, Simms requested
State Fund to buy him a handicapped accessible van, which it has denied, resulting in the
present proceeding.
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¶10 A hearing was held on December 17, 2003. On March 15, 2004, the WCC issued its
findings of fact, conclusions of law and judgment concluding that Simms was not entitled
to a handicapped accessible van to be furnished by State Fund. The WCC dismissed the
petition without prejudice, noting that “future circumstances could conceivably justify a
renewed request.” Simms appeals.
STANDARD OF REVIEW
¶11 This Court employs two standards of review for decisions of the WCC. We review
the findings of fact to determine if they are supported by substantial credible evidence, and
we review conclusions of law to determine if they are correct. Hiett v. Missoula County
Public Schools, 2003 MT 213, ¶ 15, 317 Mont. 95, ¶ 15, 75 P.3d 341, ¶ 15 (citing Geiger
v. Uninsured Employers’ Fund, 2002 MT 332, ¶ 13, 313 Mont. 242, ¶ 13, 62 P.3d 259, ¶ 13).
In S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, 303 Mont. 364, 15 P.3d 948,
this Court defined substantial evidence necessary to support a finding of fact as:
“[E]vidence that a reasonable mind might accept as adequate to support a
conclusion; it consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.”
S.L.H., ¶ 42 (quoting Swain v. Battershell, 1999 MT 101, ¶ 34, 294 Mont. 282, ¶ 34, 983
P.2d 873, ¶ 34).
DISCUSSION
¶12 Did the WCC err by denying the claimant’s petition for provision of a handicapped
accessible van?
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¶13 This case is governed by the 1997 version of the Montana Workers’ Compensation
Act, the law in effect at the time of Simms’ industrial accident. Buckman v. Montana
Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Simms bears the
burden of proving by a preponderance of the evidence that he is entitled to the benefits
sought. Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 512 P.2d 1304.
¶14 While Simms maintains the WCC erred in concluding that State Fund did not have
to furnish him a handicapped accessible van to travel to and from medical appointments,
State Fund contends that § 39-71-704(1)(d), MCA (1997), unequivocally provides that an
insurer is not liable for a claimant’s transportation for medical appointments, except for those
appointments requested by the insurer. The statute provides:
The insurer shall reimburse a worker for reasonable travel expenses incurred
in travel to a medical provider for treatment of an injury only if the travel is
incurred at the request of the insurer. Reimbursement must be at the rates
allowed for reimbursement of travel by state employees. [Emphasis added.]
¶15 Relying on this provision, and noting the directive that, “[i]n the construction of a
statute, the office of the judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted,” § 1-2-101, MCA, the WCC held as follows:
Under [§ 39-71-704(1)(d), MCA (1997)] the insurer is not liable for travel
expenses except to appointments it requests. Purchase of a van for travel to
and from medical appointments stands on no better ground than any other form
of travel. Therefore, I conclude that the section affirmatively excludes liability
for a van based on the claimant’s need to travel to and from medical
appointments.
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This Court must discern the intent of the legislature from the text of the statute when the
words are clear and plain. S.L.H., ¶ 17. We concur with the WCC’s conclusion of law. To
hold Simms’ attendance at medical appointments is “at the request of the insurer” simply
because the medical care is legitimate would impose a travel expense obligation on State
Fund that contradicts the plain wording and meaning of the statute.
¶16 However, Simms also argues that provision of a handicapped accessible van is
authorized by the statutory provisions providing for payment of necessary medical treatment.
These provisions, found in § 39-71-704, MCA (1997), state in pertinent part:
(1) In addition to the compensation provided under this chapter and as
an additional benefit separate and apart from compensation benefits actually
provided, the following must be furnished:
(a) After the happening of a compensable injury and subject to other
provisions of this chapter, the insurer shall furnish reasonable primary medical
services for conditions resulting from the injury for those periods as the nature
of the injury or the process of recovery requires.
(b) The insurer shall furnish secondary medical services only upon a
clear demonstration of cost-effectiveness of the services in returning the
injured worker to actual employment. [Emphasis added.]
¶17 Simms maintains the WCC erred in reaching the conclusion that he was not entitled
to a handicapped accessible van because the duty to provide “primary medical services” is
the principal obligation of each employer, which forms the foundation for the quid pro quo
underlying the Workers’ Compensation Act. Simms notes that § 39-71-704(1)(a), MCA
(1997), provides that medical services are “an additional benefit separate and apart from
compensation benefits” provided elsewhere in the statute. He argues § 39-71-704(1)(d),
MCA (1997), which requires an insurer to pay for reasonable travel expenses to a medical
provider only if requested by the insurer, does not affirmatively exclude liability for
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handicapped accessible transportation if such transportation can be said to meet the
definition of “primary medical services” as defined in §§ 39-71-704(1)(a) and 39-71-
116(26), MCA (1997). Simms asserts that a handicapped accessible van falls under the
definition of “primary medical services,” because a van is a medical appliance necessary to
sustain MMI.
¶18 We initially note that the statute requires provision of “secondary medical services”
only upon a showing that they enable a worker to return to actual employment. Neither party
disputes that Simms is permanently totally disabled and is unable to return to work, and,
thus, “secondary medical services” under § 39-71-704(1)(b), MCA (1997), are inapplicable.
While “secondary medical services” does include medical services or appliances within the
scope of treatment, “treatment” under “primary medical services” is not defined. “Primary
medical services” itself is defined as the “treatment prescribed by a treating physician, for
conditions resulting from the injury, necessary for achieving medical stability.” Section 39-
71-116(26), MCA (1997). In Hiett, this Court addressed “primary medical services,” and
interpreted the Act as follows:
[T]he phrase “achieving” medical stability and “achieved” medical stability as
used in §§ 39-71-116(25) and 39-71-704(1)(f), MCA (1995), respectively,
[means] 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.
Hiett, ¶ 35 (emphasis in original).
¶19 However, even if this Court would conclude that a handicapped accessible van is a
“treatment” that could qualify as “primary medical services,” Simms would nonetheless need
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to carry his burden to prove that a handicapped accessible van is necessary for medical
reasons, and not merely for transportation. The WCC noted the proof that was required, and
concluded that Simms had failed to carry his burden:
[T]here are obstacles even under the primary medical services rule. First, as
already noted, the claimant must prove that a van is necessary for reasons
other than transportation to and from medical appointments. Second, he must
demonstrate that the van is necessary for him to “sustain” MMI. Third, he
must show it is in fact medically necessary. He has satisfied none of these
requirements.
¶20 Simms maintains the WCC erroneously concluded, against substantial credible
evidence, that a handicapped accessible van is not a “primary medical service.” He argues
that the WCC’s finding that he failed to prove handicapped accessible transportation was
medically necessary for him to sustain MMI is contrary to two medical opinions and the
overwhelming evidence. He refers to evidence that he misses treatment appointments, is
forced to consult with medical providers by telephone, and his physical condition is
deteriorating due to immobility and an inability to travel to Bozeman and Billings for
treatment.
¶21 State Fund replies that the WCC’s findings are supported by substantial credible
evidence and that the court’s conclusions of law are correct. Specifically, State Fund argues
that a handicapped accessible van is neither a primary nor a secondary medical service under
§ 39-71-704(1), MCA (1997), and, in any event, Simms will not relapse into a non-MMI
state without a van. Noting Dr. Oakley’s testimony, State Fund argues that, at most, a van
would promote Simms’ general mental health by allowing him to leave home more often, and
would be an added convenience. Lastly, State Fund contends there are several transportation
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alternatives available to Simms, including his personal automobile, a public wheelchair
accessible van, and the motorized wheelchair he uses within Livingston, weather permitting.
¶22 The WCC concluded that Simms failed to prove by a preponderance of evidence that
a handicapped accessible van qualified as a “primary medical service,” because Simms did
not establish the van was medically necessary to sustain his MMI. The WCC determined:
Medical necessity also encompasses a requirement that the treatment
be reasonable . . . .
[T]he claimant already has a means of transportation available to him and is
able to use it. He and his wife own a car. He is able to transfer into and out
of the car and to take his portable wheelchair with him.
....
Moreover, the claimant has not shown that alternative transportation is
not available. There is a publically operated handicap accessible van available
to him.
¶23 Dr. Oakley did not testify how a handicapped accessible van is necessary for Simms
to maintain his MMI status, or indicate how the lack of a van would cause Simms’ status to
deteriorate. As the WCC noted, the fact that Dr. Oakley wrote a prescription and
recommended a van is not conclusive as to medical necessity. Dr. Oakley’s opinion that a
handicapped accessible van would allow Simms to get away from his house and improve his
mental health is insufficient to establish that a van is necessary for sustainment of MMI. The
question is not what might generally improve Simms’ mental health and well-being, but what
is medically necessary.
¶24 Although Dr. Oakley did testify that a handicapped accessible van would make
Simms’ transfers more convenient, and, certainly, a handicapped accessible van would
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provide more convenient transportation for Simms, convenience is not synonymous with
necessity. Dr. Oakley testified Simms is able to do some standing transfers, meaning he is
able to stand up and move from his wheelchair to a car seat and vice-versa, thereby allowing
Simms to travel in the car he currently owns, as he presently does several times a month to
shop and take drives with his wife, in addition to medical appointments. Moreover, Simms
is unable to drive, and, therefore, the purchase of a handicapped accessible van would not
alleviate his need for a driver or his wife’s assistance.
¶25 Alternative means of transportation are also available to Simms. While the public
handicapped accessible van may not be able to go up the road to Simms’ house in bad winter
weather, the WCC found that Simms had provided no details as to how often that occurs and
concluded that it was “unpersuaded that the public van is unavailable during the entire
winter, or even for significant periods of time.”
¶26 We conclude that the WCC’s factual findings were supported by substantial credible
evidence, and that the WCC’s conclusion of law that Simms is not entitled to have State
Fund furnish him with a handicapped accessible van is correct.
¶27 Lastly, Simms offers that insurers have an affirmative duty to investigate workers’
compensation claims and, in the absence of such an investigation, the denial of a claim for
benefits is unreasonable, citing S.L.H., ¶ 50. He notes that State Fund failed to ask its peer
review doctor about his request, failed to write the treating physician or panel for
clarification, and failed to seek a second opinion from another provider, and, therefore,
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asserts that a 20 percent penalty should be assessed against State Fund pursuant to § 39-71-
2907, MCA, based on these failures.
¶28 Section 39-71-611, MCA, allows costs and attorney fees to be payable only on denial
of a claim or termination of benefits later found to be compensable. Because Simms’ claim
was properly found not to be compensable, his request for penalties is denied.
¶29 The order of the WCC is affirmed, and Simms’ request for attorney fees is denied.
/S/ JIM RICE
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
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