Stokes V. the Finley Hospital
STOKES V. THE FINLEY HOSPITAL
Page 1
BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______
:
CHARLES STOKES, :
:
Claimant, : File No. 5016048
:
vs. : ALTERNATE MEDICAL
:
FINLEY HOSPITAL, : CARE D E C I S I O N
:
Employer, :
SelfInsured, :
Defendant. : Head Note No.: 2701
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STATEMENT OF THE CASE
This is a contested case proceeding under Iowa Code chapters 17A and 85. The expedited procedure of rule 876 IAC 4.48, the “alternate medical care” rule, is requested by claimant, Charles Stokes.
Claimant filed a petition on April 14, 2011. He alleged at paragraph 5 of his petition, in relevant part:
Reason for dissatisfaction and relief sought: Claimant is dissatisfied with the abandonment of care that has occurred and this dissatisfaction has been conveyed to Defendant through their counsel. Defendants have essentially abandoned care in this case and Claimant respectfully requests that his current treating chiropractor, Dr. Tebbe be designated as an authorized treatment provider herein for ongoing chiropractic treatment of his lumbar spine.
Defendant filed an answer on April 25, 2011. Defendant admitted the occurrence of a work injury on December 16, 2004. An arbitration decision in this matter was filed February 22, 2007, which expressly made defendant responsible for payment of future medical expenses necessitated by the work injury. Defendant did not dispute liability for the current medical condition.
The alternate medical care claim came on for hearing on April 26, 2011. The proceedings were recorded digitally, and constitute the official record of the hearing. By an order filed April 30, 2007 by the workers’ compensation commissioner, this decision is designated final agency action. Any appeal would be by petition for judicial review under Iowa Code section 17A.19.
The record in this matter consists of claimant’s exhibits 1 through 8, defendant’s exhibit A, and the testimony of the claimant.
ISSUES
The issue presented for resolution is whether claimant is entitled to alternate medical care in the form of authorization of continued chiropractic care with Dr. Tebbe.
FINDINGS OF FACT
The undersigned, having considered all of the testimony and evidence in the record, finds:
Claimant sustained a work-related injury to his back on December 16, 2004, which was the subject of an arbitration proceeding on November 1, 2006. The arbitration decision expressly made defendant responsible for payment of future medical expenses necessitated by the work injury.
The undersigned issued a prior alternate care decision in this matter on March 11, 2011. The facts predating the prior proceeding have been considered herein, but will not be set forth again in this decision and are hereby incorporated by reference. In that proceeding, claimant requested authorization of Dr. Tebbe for chiropractic care and payment for past chiropractic services. The application was denied with regard to past medical bills and denied with regard to authorization of Dr. Tebbe, as defendant had authorized reasonable care with Dr. Pearson. Specifically, it was held:
Claimant did express dissatisfaction in October of 2010, by way of letter from his counsel. Although unclear based upon the record as to the precise date, defendant extended the option of claimant returning to Dr. Pearson for evaluation. Although this is not what the claimant requested, defendant’s offer is not unreasonable. Defendant continued to offer care with Dr. Pearson throughout the filing of two alternate care proceedings, but was not contacted regarding scheduling an appointment. Defendant, by its own volition, then scheduled an appointment for claimant with Dr. Pearson on March 17, 2011. Defendant is entitled to an evaluation by an authorized physician, abreast of the entire medical record, prior to being held responsible for additional care.
Defendant represented at hearing that it would abide by Dr. Pearson’s treatment recommendations. If his recommendation includes chiropractic care, the instant matter may prove unnecessary. If, as claimant fears, Dr. Pearson declines to offer treatment, claimant is free to file a petition for alternate medical care and present evidence that defendant has refused to provide care.
As required by the prior decision, claimant appeared for evaluation with Dr. Pearson on March 17, 2011. Claimant testified that Dr. Pearson was unaware of the reason for the visit. Claimant explained the he had ongoing back symptoms for which he had seen Dr. Tebbe for chiropractic relief. He testified he asked Dr. Pearson for treatment and also for referral to Dr. Tebbe. (Claimant’s testimony)
Dr. Pearson suggested an MRI, for which he indicated he would need prior authorization from defendant’s counsel. (Claimant’s testimony; Exhibit 8) Claimant reported there was also mention made of a possible referral to Dr. Miller at the Pain Clinic. Claimant indicated he had seen Dr. Miller in the past for treatment. (Claimant’s testimony) With regard to the referral to Dr. Tebbe, claimant testified that Dr. Pearson indicated that chiropractic care was outside his “repertoire” and that he would not refer claimant for chiropractic care. Dr. Pearson’s note stated:
I do not feel that manipulations are a required treatment for managing a chronic disorder of the spine. Therefore, I will not do a referral or give a recommendation for chiropractic treatments.
(Ex. 8)
Dr. Pearson’s note indicated claimant could return as needed, but did not offer anything by way of treatment at the March 17, 2011 appointment. (Ex. 8) Claimant testified he was not told he could return, but rather that he was informed by the nurse that claimant would be called if Dr. Pearson wanted to see him again.
Claimant conveyed the results of his appointment to his counsel. On March 22, 2011, claimant’s counsel wrote to defendant’s counsel and requested copies of Dr. Pearson’s notes or any correspondence from Dr. Pearson. Counsel also requested authorization of the MRI and expressed desire to avoid filing an alternate care petition. (Ex. 4)
On April 12, 2011, claimant’s counsel wrote to both Dr. Pearson and defendant’s counsel, requesting copies of medical records or reports pertaining to the March 17, 2011 appointment. (Ex. 5; Ex. 6) To defendant’s counsel, claimant’s counsel expressed dissatisfaction with the lack of care offered. (Ex. 6)
Defendant’s counsel replied to claimant’s counsel on April 21, 2011, following receipt of the current alternate care petition. Counsel provided copies of Dr. Pearson’s notes and inquired as to whether claimant had returned for additional consultation. Counsel indicated that defendant had not abandoned care, as Dr. Pearson remained available. (Ex. A, p. 1)
On April 25, 2011, one day prior to the alternate care hearing, defendant’s counsel again wrote to claimant’s counsel. Defendant’s counsel drew attention to Dr. Pearson’s MRI recommendation and authorized the same. Counsel indicated that after Dr. Pearson reviewed the MRI and recommended additional treatment, that treatment would be provided. With regard to the chiropractic care, counsel indicated that defendant would not authorize such care as Dr. Pearson did not make a referral. (Ex. A, p. 2)
At hearing, claimant testified that he currently sees Dr. Tebbe one time per week regularly, twice if necessary. He indicated that he does not know if he will always need chiropractic care, but stated that the care Dr. Tebbe provides him manages his symptoms and allows him to keep working. Claimant also indicated willingness to continue to see Dr. Pearson and desire for Dr. Pearson to provide care that would eliminate or control his pain.
CONCLUSIONS OF LAW
The issue presented for resolution is whether claimant is entitled to alternate medical care in the form of authorization of continued chiropractic care with Dr. Tebbe.
The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).
Iowa Code section 85.27(4) provides, in relevant part:
For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. . . . The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care.
An application for alternate medical care is not automatically sustained because claimant is dissatisfied with the care he has been receiving. Mere dissatisfaction with the medical care is not ample grounds for granting an application for alternate medical care. Rather, the claimant must show that the care was not offered promptly, was not reasonably suited to treat the injury, or that the care was unduly inconvenient for the claimant. Long v. Roberts Dairy Co., 528 N.W.2d 122 (Iowa 1995).
The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner, 78 (Review-Reopening 1975).
An employer’s right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated, or other matters of professional medical judgment. Assman v. Blue Star Foods, File No. 866389 (Declaratory Ruling, May 19, 1988).
Reasonable care includes care necessary to diagnose the condition and defendants are not entitled to interfere with the medical judgment of its own treating physician. Pote v. Mickow Corp., File No. 694639 (Review-Reopening Decision June17, 1986).
“Determining what care is reasonable under the statute is a question of fact.” Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995).
In Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 437 (Iowa 1997), the supreme court held that “when evidence is presented to the commissioner that the employer-authorized medical care has not been effective and that such care is ‘inferior or less extensive’ than other available care requested by the employee, . . . the commissioner is justified by section 85.27 to order the alternate care.”
Claimant contends that defendant’s delay in providing medical records and authorizing the recommended MRI is tantamount to abandonment of care. He further argues that by requiring Dr. Pearson to request authorization prior to ordering tests or treatment, defendant is impermissibly interfering with the medical care offered. Claimant therefore requests that Dr. Tebbe be designated as an authorized physician, as Dr. Tebbe’s care is the only care offered and has provided him the only source of relief.
Defendant contends that it has not abandoned care, as Dr. Pearson remains an authorized physician. Defendant notes that Dr. Pearson released claimant to return as needed and claimant has not done so. It further denies any argument of improper interference with Dr. Pearson’s medical judgment and agrees to authorize any care, treatment, referral, or testing that Dr. Pearson recommends. Defendant argues it is justified in failing to authorize chiropractic care, as Dr. Pearson did not make a referral.
While defendant’s arguments appear valid at first glance, the validity is lost when the arguments are considered in light of the circumstances surrounding this action. Defendant is correct that it has not wholly abandoned care, as Dr. Pearson remains an available, authorized physician. However, Dr. Pearson has not offered claimant any active care. When a recommendation for a diagnostic test was made, Dr. Pearson did not order the test, but rather indicated he needed to get authorization. An authorized doctor without the ability to order diagnostic tests absent further authorization is not able to provide meaningful care.
Defendant argues that claimant failed to return to Dr. Pearson for additional care following the March 17, 2011 appointment, and therefore claimant has “abandoned” care with Dr. Pearson. This argument is hollow in that claimant credibly testified that he was not told to return as needed, but that if Dr. Pearson received authorization for the MRI, his office would contact the claimant. Furthermore, Dr. Pearson had already indicated to claimant that he had no current treatment options available absent review of the MRI. What purpose would claimant serve by returning to Dr. Pearson before that test was received?
Defendant also makes the argument that care remains ongoing with Dr. Pearson and that any recommendation made by Dr. Pearson will be followed. With all due respect to the defendant, the undersigned is not persuaded. In the prior alternate care decision, defendant made the same assertion, that it would abide by the treatment recommendations of Dr. Pearson. Based in part upon that assertion, the undersigned required claimant to present to Dr. Pearson, assuming that defendant would provide Dr. Pearson with authorization to provide care. Instead, claimant appeared to Dr. Pearson, who lacked knowledge of the reason for claimant’s visit and then offered no care without further diagnostic testing. Dr. Pearson’s need to request authorization from defendant’s counsel for this diagnostic test is offensive to the spirit of the order in the prior alternate care decision. What is more offensive is that defendant failed to provide copies of claimant’s medical records in a timely fashion and then failed to authorize the diagnostic test for over one month, conveniently until one day prior to the instant hearing. Defendant then offered essentially the same argument with regard to ongoing care being offered with Dr. Pearson in effort to again escape the granting of alternate care with Dr. Tebbe.
It is determined that defendant failed to timely provide medical care to the claimant. Claimant’s request for continued care with Dr. Tebbe is reasonable, as it has provided him with the only relief of his symptoms. Alternate care will be granted with regard to designating Dr. Tebbe as an authorized physician.
ORDER
THEREFORE, IT IS ORDERED:
Claimant’s petition for alternate care is granted. Dr. Tebbe is designated as an authorized physician to provide ongoing chiropractic care.
Signed and filed this ___27th______day of April, 2011.
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ERICA J. ELLIOTT
DEPUTY WORKERS’ COMPENSATION
COMMISSIONER
Copies to:
Mark J. Sullivan
Attorney at Law
PO Box 239
Dubuque, IA 52004-0239
Chris J. Scheldrup
Attorney at Law
PO Box 36
Cedar Rapids, IA 52406-0036
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