Chapman v. Research Cottrell

• Court: Montana Supreme Court
• Writing for the Court: HARRISON; TURNAGE
• Citation: Chapman v. Research Cottrell, 856 P.2d 234, 259 Mont. 329 (Mont. 1993)
• Decision Date: 13 July 1993
• Docket Number: No. 93-043,93-043
• Parties: Michelle CHAPMAN, Claimant and Appellant, v. RESEARCH COTTRELL, Employer, and National Union Fire Loss of Pittsburgh, Defendant and Respondent.

Page 234

856 P.2d 234

259 Mont. 329

Michelle CHAPMAN, Claimant and Appellant, v. RESEARCH COTTRELL, Employer and National Union Fire Loss of Pittsburgh, Defendant and Respondent.

No. 93-043.

Supreme Court of Montana.

Submitted on Briefs May 27, 1993.

Decided July 13, 1993.

Don Edgar Burris, Billings, for claimant and appellant.

William J. Mattix; Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendant and respondent.

HARRISON, Justice.

This is an appeal from an order of the Workers' Compensation Court, denying appellant's claims for medical payments, statutory penalties, costs, and attorney's fees. We affirm.

Appellant Michelle Chapman (Chapman) was injured on May 16, 1989, while in the course and scope of her employment as a laborer for Research Cottrell at Colstrip, Montana. She fell twelve feet from a cooling tower and sustained injuries to her right arm and shoulder and to her neck and back. The insurer has paid temporary total disability benefits to Chapman since May 25, 1989. At the time this appeal was filed she was 24 years old and had not returned to work.

In June 1989, Dr. Richard Nelson, a neurologist, diagnosed Chapman's injuries as cervical and lumbosacral sprain. At first, the insurer refused to pay for Dr. Nelson's services, on the grounds that it had not authorized this treatment. Chapman filed a petition with the Workers' Compensation Court, which determined that the insurer was not liable for services rendered by Dr. Nelson. We reversed the Workers' Compensation Court because the evidence demonstrated that Dr. Nelson should be recognized as Chapman's treating physician, pursuant to A.R.M. 24.29.1403. Chapman v. Research Cottrell (1991), 248 Mont. 353, 811 P.2d 1283.

Dr. Nelson is still Chapman's treating physician. He has referred her to other specialists, including Drs. Thomas Johnson and Robert Snider, orthopedic surgeons. These doctors referred Chapman for physical therapy in January 1990. She was evaluated at the Physical Therapy and Sports Medicine Center in Billings on January 10, 1990, and for the next eight months was treated at the Center with moist heat, ultrasound, and resistance exercises. Therapy was administered by Susan Zimmerman, an occupational therapist.

In August 1990, Chapman began an independent exercise program at the Billings YMCA. Zimmerman testified that Chapman had a prescription for this program, though she could not recall who had written it, and that she had designed the exercise program, which consisted of water exercises, free weights, and some Nautilus equipment. In September and October, 1990, Zimmerman testified, Chapman visited the Physical Therapy and Sports Medicine Center to use an "upper body ergometer" prescribed by Dr. Snider. Zimmerman had no records showing that Chapman had visited the Center or used the upper body ergometer between October 1990 and July 1991. The insurer paid all the costs of Chapman's therapy during this period, including the cost of her YMCA membership.

In July 1991, Chapman moved briefly to Florida, where her mother lived. Her lawyer notified the insurer's adjusting agent, Crawford and Company (Crawford) in June that Chapman was moving to Florida. He enclosed a prescription from Dr. Nelson for continuation of her swim therapy. In September 1991, Chapman's lawyer wrote again to Crawford, stating that Chapman had not been able to continue her therapy because "there has been no approval for use of gym facilities in Florida." Later that month, Crawford received a bill from a health club in Crystal River, Florida, for four months membership for Chapman. Crawford paid this bill in November 1991, but by then Chapman had returned to Montana without using the health club.

Dr. Nelson saw Chapman on November 21, 1991, and reported in his notes that she had not been doing well, due to increasing stiffness of her neck and shoulder. He stated that she needed "about six months therapy with a program of exercise" and wrote a new prescription for water exercise, mentioning the YMCA specifically. The Billings YMCA, however, refused to give Chapman a membership without six months payment in advance. Chapman's lawyer forwarded the prescription to Crawford for authorization and payment, but without specifying the amount due. In December he sent Crawford the YMCA's bill for $290, covering six months membership. Crawford responded by stating that the insurer would pay for a physical therapy program only if it were supervised by a registered physical therapist.

Dr. Nelson examined Chapman again on January 31, 1992. His notes indicate that she "has not had any swimming or physical therapy programs ... at the Y which we had previously asked for," and that she was still experiencing pain and a restricted range of motion with her right arm. He concluded that "the patient requires a formal and active program of intervention with swim therapy, walking, stretching, whirlpool and jacuzzi and a deep massage program."

On March 5, 1992, Chapman filed a petition for hearing in the Workers' Compensation Court, complaining that the insurer had unreasonably refused payment for her therapy at the health club in Florida and at the Billings YMCA after she returned from Florida. A hearing was held on May 12, 1992, on the issues of what constitutes reasonable medical treatment in terms of physical therapy and whether the insurer was liable for the 20 percent penalty authorized by § 39-71-2907, MCA (1987), and for costs and attorney's fees. Occupational therapist Susan Zimmerman was the only witness who testified. The hearing examiner eventually decided all three issues in favor of the insurer.

In the meantime, Chapman returned to Zimmerman on March 13, 1992. Zimmerman provided eight treatments and then enrolled her in a swim therapy program at Rocky Mountain College, prescribed by Dr. Nelson on April 2, 1992. The insurer paid the costs of the treatment and the swim therapy program.

On July 2, 1992, the insurer advised Chapman that it would pay for a "structured, monitored physical therapy program" and that such a program was available through Health Partners, which is sponsored jointly by the Billings YMCA and the Deaconess Medical Center of Billings. Apparently in response to this letter, Chapman enrolled in Health Partners in July, but without notifying the insurer. In September, Health Partners notified the insurer that Chapman had completed two months of therapy and would no longer need the supervision of a physical therapist. The insurer paid the cost of the supervised therapy with Health Partners and authorized an extended conditioning program that would allow Chapman to work more independently but with periodic review by a physical therapist.

The Workers' Compensation Court adopted the hearing examiner's findings of fact and conclusions of law and entered judgment on December 24, 1992. It determined that Chapman was not entitled to medical payments for the YMCA membership prescribed by Dr. Nelson in November 1991, and that she was not entitled to statutory penalties or to costs and attorney's fees. Chapman appealed.

The issues raised by Chapman on appeal are the same as those addressed by the Workers' Compensation Court in May 1992. We have restated them as follows:

1. Whether Chapman's proposed exercise at the health club in Florida and at the Billings YMCA constituted reasonable physical therapy, compensable as a reasonable and necessary medical expense under § 39-71-704, MCA (1987).

2. Whether the Workers' Compensation Court erred in denying Chapman a 20 percent penalty under § 39-71-2907, MCA (1987).

3. Whether the Workers' Compensation Court erred in denying Chapman costs and attorney's fees.

Two standards of review govern our decision in this case. First, we will not overturn factual findings of the Workers' Compensation Court if they are supported by substantial, credible evidence in the record. Field v. Sears, Roebuck & Co. (1993), --- Mont. ----, ----, 847 P.2d 306, 310. Second, we will uphold the court's conclusions of law if its interpretation of the law is correct. Plooster v. Pierce Packing Co. (1993), --- Mont. ----, ----, 846 P.2d 976, 978; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

I

Did Chapman's proposed exercise at the health club in Florida and at the Billings YMCA constitute reasonable physical therapy, compensable as a...