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Simms v. State Compensation Insurance Fund

Court: Montana Supreme Court
Date filed: 2005-07-12
Citations: 2005 MT 175, 116 P.3d 773, 327 Mont. 511
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                                          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.




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        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.”

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¶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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