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 Workers1compensation 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

CLERKOF SUPFIElr::3COURT STATEOF hlbi.CAIJA ClerkJustice 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 insurerprior tochangingherphysician.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 ofAdministrativeRule ofMontana 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, includingx-ray film,was performed, and the claimantwas released to return towork. 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 torecuperate. She has not returned to Dr. Anderson and he has not treatedher, other thanwith theprescription previously mentioned. The claimant made two visits to the St. Vincent Hospital Emergency Room on May 18, where she sawDr. 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 EmergencyRoom, 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 sawDr. RichardNelson,who diagnosed cervical and lumbosacral sprain and possible disc herniation. A Magnetic Resonance Imaging scanwas 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 fewdaysprior toher initial consultation with Dr. Nelson,

a letterwasmailed to the claimant from the insurer informing her that shehad the right to selecther initial treating physician but that any change in physicians had tobe authorized by the insurer. The claimantdid not seeknor obtain authorization forDr. Nelson's services. By letterdated July 18, 1989,claimant was notified that the insurer did not and would not authorize treatment by Dr. Nelson.Claimant was informed that treatmentwould be authorized with any orthopedicphysician inYellowstone County or any physician in the Billings Clinic. The letter further indicated that wage loss benefitswould not bepaid because thereports 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 insurerwas notresponsibleforpayment. Nevertheless,payment was made by the insurer formedical services renderedprior to July 18, 1989. An independentmedical examinationwas arrangedby the insurer to determine the nature of claimant's injury and the extent of her disability. Dr.William Shawdiagnosed significantdecrease 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 ~olstripwas the initial treating physician, even though Dr. Anderson was now 124miles from where she resided. Claimant filedapetition with theWorkerstcompensationCourt to resolvethedisputeregarding the treatingphysician. The courtheld that the insurer was liable for all medical bills up to July 18, 1989, when proper notification was given to the claimant that treatmentby Dr. Nelsonwould notbe authorized, but that all medical services provided by Dr. Nelson after that date were not the responsibilityof the insurer. The courtheld 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 treatingphysician,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 contentionson thepart of the insurer that Dr. Norris was the claimant's treatingphysician. Neither of the parties nor the court concluded that any of the emergency room physicianswere the claimant's choice as treating physician. The issue then iswhether 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 injuredworkermay selectthephysician toprovide the initial treatment. Authorization is required to change treating physicians.l1 The claimant in this casedid not actively chooseDr. Anderson as her treatingphysician. 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 claimanthad made an unauthorized switch of treatingphysicians. 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 treatmentheperformed was toprescribe 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 chosenphysician, 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 theWorkers1Compensation 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 statutorypenalty. We concludethatthere 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 JusticeWeConcur:

Chief Justice

Justices