No. 90-574 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

MICHELLE CHAPMAN, 

Claimant and Appellant, 

v. 

RESEARCH COTTRELL, 

Employer and Respondent, 

and 

NATIONAL UNION FIRE LOSS 

OF PITTSBURGH, 

Defendant and Respondent. 

APPEAL FROM: The Workers1 compensation Court 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Edgar Burris, Billings, Montana 

For Respondent: 

William J. Mattix, Crowley, Haughey, Hanson, 

Toole & Dietrich, Billings, Montana 

Filed: 

Submitted on ~riefs: ~pril 18, 1991 

MAY 2 3 1991 Decided: May 23, 1991 

CLERK OF SUPFIElr::3 COURT 

STATE OF hlbi. CAIJA 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Michelle Chapman appeals the decision of the Workers1 

Compensation Court, holding that the claimant failed to obtain 

approval of the insurer prior to changing her physician. We reverse 

the lower court. 

The issue before the Court is whether the Workers' 

Compensation Court properly concluded that the claimant changed 

treating physicians without first getting permission from the 

insurer, in violation of Administrative Rule of Montana 24.29.1403. 

Michelle Chapman was injured on May 16, 1989, while in the 

course and scope of her employment with Research Cottrell in 

Colstrip, Montana. The claimant sustained her injuries when she 

fell approximately 12 feet and landed on her side. The claimant 

reported her injury, and was instructed to rest for the remainder 

of her work shift. 

After returning home, claimant's friends noticed her 

discomfort and drove her to a chiropractor, Dr. Howard Norris, in 

Forsyth. A brief examination, including x-ray film, was performed, 

and the claimant was released to return to work. On the following 

day, claimant reported for work although she continued to be in 

pain. She was told to discontinue work and was taken to the 

Colstrip Medical Clinic by a supervisor. There, the claimant was 

examined by Dr. William Anderson, who, after examining her, 

prescribed some medication and said she could return to work. 

Instead, she traveled to Billings to her father's home to 
recuperate. She has not returned to Dr. Anderson and he has not 

treated her, other than with the prescription previously mentioned. 

The claimant made two visits to the St. Vincent Hospital 

Emergency Room on May 18, where she saw Dr. George Angelos and Dr. 

Gary Mundy. Both doctors noted several contusions, but found no 

further injury. The claimant states that Dr. Mundy suggested she 

see a neurologist, Dr. Richard Nelson. On May 22, claimant 

returned to the St. Vincent Emergency Room, where she was examined 

by Dr. Kathi Hart, who prescribed changes in her medication and 

told her to return within a few days if her condition had not 

improved. 

On June 12, the claimant saw Dr. Richard Nelson, who diagnosed 

cervical and lumbosacral sprain and possible disc herniation. A 

Magnetic Resonance Imaging scan was ordered, and was conducted by 

Dr. John Anderson. The MRI showed evidence of disc degeneration 

and a slight herniation in the lumbar region. Dr. Nelson 

thereafter reported that the claimant was disabled. 

A few days prior to her initial consultation with Dr. Nelson, 

a letter was mailed to the claimant from the insurer informing her 

that she had the right to select her initial treating physician but 

that any change in physicians had to be authorized by the insurer. 

The claimant did not seek nor obtain authorization for Dr. Nelson's 

services. 

By letter dated July 18, 1989, claimant was notified that the 

insurer did not and would not authorize treatment by Dr. Nelson. 
Claimant was informed that treatment would be authorized with any 

orthopedic physician in Yellowstone County or any physician in the 

Billings Clinic. The letter further indicated that wage loss 

benefits would not be paid because the reports of Dr. Anderson, Dr. 

Norris, and the emergency room physicians all indicated no 

disability. The insurer likewise notified Dr. Nelson, Dr. John 

Anderson, Physical Therapist Mary Mistal, and the Billings MRI 

Center that their services were not authorized, and that the 

insurer was not responsible for payment. Nevertheless, payment was 

made by the insurer for medical services rendered prior to July 18, 

1989. 

An independent medical examination was arranged by the insurer 

to determine the nature of claimant's injury and the extent of her 

disability. Dr. William Shaw diagnosed significant decrease in the 

range of motion of the right shoulder and radicular pain, coupled 

with degenerative disc disease. He found that further treatment 

was warranted and that the claimant had not reached maximum 

healing. Upon receipt of Dr. Shawls report, the insurer began 

payment of temporary total disability benefits retroactive to 

May 25, 1989. The insurer continued to refuse authorization for 

claimant to be treated by Dr. Nelson, asserting that Dr. William 

Anderson of ~olstrip was the initial treating physician, even 

though Dr. Anderson was now 124 miles from where she resided. 

Claimant filed a petition with the Workerst compensation Court 

to resolve the dispute regarding the treating physician. The court 
held that the insurer was liable for all medical bills up to 

July 18, 1989, when proper notification was given to the claimant 

that treatment by Dr. Nelson would not be authorized, but that all 

medical services provided by Dr. Nelson after that date were not 

the responsibility of the insurer. The court held that the insurer 

was required to specify its reasons for refusing to authorize a 

change of treating physician, and that the claimant could further 

petition the court if not satisfied with the insurer's reasoning 

for the refusal. Those reasons have never been provided. This 

appeal followed. 

On appeal, the claimant asserts that Dr. Nelson was the first 

physician that she selected to treat her, and that she is entitled 

to a 20 percent penalty and attorney fees and costs. The 

chronology of her medical visits is: 

1. Dr. Norris (Forsyth) . 2. Dr. William Anderson (Colstrip). 

3. St. Vincent Hospital ER Doctors Angelos, 

Mundy, and Hart (Billings) . 4. Dr. Nelson (Billings) . 

The lower court did not find that Dr. Norris was the 

claimant's treating physician, butthat !'the insurer considered Dr. 

Anderson to be the treating physician.'' The insurer does not 

appeal this finding of fact. Therefore, this Court will not 

consider any contentions on the part of the insurer that Dr. Norris 

was the claimant's treating physician. Neither of the parties nor 

the court concluded that any of the emergency room physicians were 

the claimant's choice as treating physician. The issue then is 
whether the claimant chose Dr. William Anderson as her treating 

physician or Dr. Richard Nelson. 

The administrative rule in question, A.R.M. 24.29.1403, 

states: "The injured worker may select the physician to provide the 

initial treatment. Authorization is required to change treating 

physicians. l1 

The claimant in this case did not actively choose Dr. Anderson 

as her treating physician. That choice of a physician was made by 

a supervisor who drove the claimant to Dr. Anderson. Claimant 

maintains, and we concur, that Dr. Anderson was not the physician 

selected as her initial treating physician. 

The Workers1 Compensation Court relied upon this Court's 

decision in Garland v. Anaconda Company, 177 Mont. 240, 244, 581 

P.2d 431, 433 (1978), in determining that the claimant had made an 

unauthorized switch of treating physicians. The Court stated that 

the proper result when the claimant fails to comply with the rule 

is that the employer cannot be charged for the services of the 

unauthorized second doctor. However, Garland is factually 

distinguishable. In Garland, the claimant saw a chiropractor on 

his own initiative on four separate occasions. The chiropractor 

treated him, at his request, on a number of occasions. In the 

instant case, Dr. Anderson was not selected by the claimant, and 

the only treatment he performed was to prescribe medication, which 

was later discontinued by other physicians. 
The claimant in this case continued to see several physicians 

until she found one who accurately diagnosed her injury. That was 

Dr. Richard Nelson. That diagnosis was borne out by an MRI scan 

and the injuries diagnosed to her lower back were later verified 

by the insurer's chosen physician, Dr. Shaw. It is clear that the 

diagnosis by Dr. Nelson was the first correct diagnosis. It was 

only after that diagnosis that claimant began a proper course of 

treatment for her work-related injury. 

Dr. Anderson did not correctly diagnose claimant's injury. 

Therefore he could not have treated her for it. We find that the 

claimant's choice of physicians was proper in this instance, and 

accordingly reverse the lower court. 

Under 5 39-71-611, MCA, as amended in 1987, it was necessary 

for the Workers1 Compensation Court to find that the insurer acted 

unreasonably before awarding attorney fees. Pursuant to 5 39-71- 

2907, MCA, the same requirement is a prerequisite for an award of 

the statutory penalty. We conclude that there was evidence offered 

from which the trial court could find that the insurer acted 

reasonably, and therefore affirm the court's decision to deny 

attorney fees and penalty. 

f Justice 
We Concur: 

Chief Justice 

Justices