File Number: 1277735 Decision Type: Alternate Medical Care Click here to open a PDF version of this decision.
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JONATHON MILLS, :
Claimant, : File No. 1277735
vs. : ALTERNATE
TRI-CITY ELECTRIC, : MEDICAL
Employer, : CARE
and : DECISION
VIRGINIA SURETY COMPANY, :
Insurance Carrier, :
Defendants. :
______________________________________________________________________
An original notice and petition was filed on August 7, 2001 under rule 876 IAC 4.48. August 17, 2001 was the date set for a telephonic hearing. All parties were given proper notice. The deputy workers' compensation commissioner has been delegated final agency authority in this matter. Therefore, appeal of this decision, if any, would be by judicial review pursuant to Iowa Code section 17A.19. Claimant was represented by Nicholas J. Avgerinos. Defendants were represented by Peter Thill. The record consists of claimant's exhibits A, B, C consisting of 8 pages; defendants' exhibits A-1, A-2, B-3, B-4, B-5, B-6, C-7, C-8, and D-9 consisting of 9 pages; and the testimony of claimant, Jonathon Mills. In addition, also present on the telephone during the hearing was Gina Duffy, defendants' claim representative. Defendants acknowledged and admitted liability for the injury, which occurred on January 17, 2000. The entire proceeding was recorded by audiotape. If either party wishes a copy of the proceedings, they can be requested from the workers' compensation commissioner.
The sole issue presented was whether the medical care provided by defendants is reasonable.
Claimant injured his back on January 17, 2000. The authorized treating orthopaedic surgeon, Timothy P. Millea, M.D., performed surgery in September of 2000. Subsequent to the surgery claimant continued to have back pain and numbness in his legs. Later he developed right leg pain similar to the pain he had prior to the surgery.
Claimant moved from Davenport, Iowa to Spirit Lake, Iowa. Dr. Millea, the authorized treating physician, referred claimant to Robert C. Suga, M.D., an orthopaedic surgeon at Sioux Falls, South Dakota.
Subsequent to Dr. Suga's initial examination and recommendations, defendants transferred claimant's care to J. Michael Donahue, M.D., an orthopaedic surgeon at Spirit Lake, Iowa. The parties disagreed on whether Dr. Donovan actually performs orthopaedic surgery in his medical practice.
Dr. Suga thought that claimant had sustained a recurrent disc herniation and recommended a closed MRI with and without gadolinium. The previous MRI was an open MRI without contrast and was difficult to read. Claimant testified that defendants refused to pay for the MRI's that Dr. Suga requested.
Dr. Donahue wanted to pursue a course of aggressive physical therapy.
Claimant is entitled to reasonable medical care, promptly offered, and reasonably suited to treat the injury, without undue inconvenience. Iowa Code section 85.27 (Emphasis supplied).
It is determined that aggressive physical therapy is not reasonably suited to treat this claimant's current situation.
Proof of the necessity for alternate care treatment may be found in claimant's own testimony. Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963).
Claimant's testimony was convincing that he has serious problems and that the etiology has not been established by objective evidence.
Should the treatment selected by defendants result in additional harm to the employee, then the employee will be entitled to additional compensation. Heumphreus v. State, 334 N.W.2d 757, 760 (Iowa 1983); Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 386, 101 N.W.2d 167, 173 (1960); Hoover v. Iowa Dep't of Agric., II-2 Iowa Indus. Comm'r Dec. 565 (1985).
The outcome of aggressive physical therapy, in view of the competing diagnosis of a recurrent herniated disc, could result in very serious consequences for both claimant and employer and the insurance carrier.
The outcome in this case is determined by the longstanding workers' compensation principle of law that where the authorized treating physician refers the employee to another doctor, the authorized doctor is acting as the employer's agent and specific permission from the employer for referral is unnecessary. Kittrell v. Allen Memorial Hosp., 34 Biennial Rep., Iowa Indus. Comm'r 164 (1979)(Indus. Comm.'r aff'd); Limoges v. Meier Auto Salvage, 1 Iowa Indus. Comm'r Rep. 207 (1981).
Apparently, defendants were not aware of this longstanding (1979) principle of workers' compensation law.
If defendants would have abided by this longstanding principle of workers' compensation law it would not have been necessary for claimant to file a petition for alternate care. When Dr. Millea referred claimant to Dr. Suga, then Dr. Suga became the authorized treating physician without permission of defendants.
It is determined that Dr. Suga is now the authorized treating physician and he is authorized to perform the MRI's that he chooses and surgery later, if it is reasonable, based upon the outcome of the MRI or MRI's.
The employer's right to choose the care means the care provider, not the right to invade the province of the medical professionals in determining what diagnostic tests and methods of treatment are to be utilized or the timing of the care. Pote v. Mickow Corp., No. 694639 (Review-Reopening Dec. June 17, 1986)(No appeal); Martin v. Armour Dial, Inc., File No. 754732 (Arb. Dec. July 31, 1985)(No Appeal); Dietz v. Iowa Meat Processing, File No. 757109 (Arb. Dec. July 20, 1985)(Comm'r Affd/award modified); Shiflett v. Clearfield Veterinary Clinic, II Iowa Indus. Comm'r Reports 344 (1982)(no appeal).
The right to chose the medical care means the right to choose the provider, not the treatment modalities recommended by the provider. Employer cannot disregard treatment recommendations of the authorized treating physician, even if a consulting physician disagrees with those recommendations.Cahill v. S & H Fabricating & Engineering, Alt Care Decision, File No. 1138063, 5/30/97; Hawxby v. Hallett Materials, File No. 1112821, Alt Care Decision 2/20/96; Leitzen v. Collins, Inc., File No. 1084677, Alt Care Decision 9/9/96.
The right to chose the care does not authorize the employer to interfere with the medical judgment of its own treating physician. Boggs v. Cargill, Inc., File No. 1050396, Alt Care Decision 1/31/94.
WHEREFORE, IT IS DETERMINED AND ORDERED:
That claimant's petition for alternate medical care is granted.
The care Dr. Donahue offered in this case was not reasonably suited to treat claimant's injury.
Defendants are ordered to accept Dr. Suga as the authorized treating physician and not interfere with the care that he recommends for claimant's treatment.
Copies To:
Mr Nick J Avgerinos
Attorney at Law
30 N LaSalle St Ste 1420
Chicago IL 60602
Mr Peter J Thill
111 E Third Street Ste 600
Davenport Iowa 52801