NO. 94-234

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

HERBERT SHELLEY,

Petitioner and Appellant,

v.

UNTIED STATES FIDELITY

AND GUARANTY COMPANY,

Respondent and Respondent.

APPEAL FROM: Workers' Compensation Court, State of Montana,

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Herbert Shelley, Bigfork, Montana, Pro Se

For Respondent:

Robert E. Sheridan; Garlington, Lohn & Robinson,

Missoula, Montana

Filed:

Submitted on Briefs: June 15, 1995

Decided: July 6, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Appellant Herbert Shelly appeals from the decision of the

Workers' Compensation Court denying him reimbursement for chiropractic treatment, mileage and filing fees. We affirm.

The issues on appeal are:

1 . Is appellant entitled to reimbursement for a bill received

from John V. Stephens, M.D. for a treatment on April 12, 1991?

2 . Did the Workers' Compensation Court err in denying

appellant's request for reimbursement for chiropractic treatments

by John Francis, D.C. and reimbursement for mileage expenses in

attending the treatments by Dr. Francis?

3 . Did the Workers' Compensation Court err in denying

reimbursement to the appellant for filing fees incurred by him in

his prior appeal to the Montana Supreme Court?

Appellant is 41 years of age and resides near Bigfork,

Montana. On June 18, 1986, he suffered an industrial injury while

employed with Eagle Bend Development, d/b/a Crop Hail Management,

in Bigfork, Montana. At the time of appellant's injury, Eagle Bend

was insured by United States Fidelity and Guaranty Company (USF&G)

under Plan II of the Workers' Compensation Act. The parties agreed

to settle appellant's claim and on November 7, 1989, the Insurance

Compliance Bureau approved a full and final compromise settlement

resolving all issues of compensation due the appellant. Future

medical benefits were reserved by the appellant in both the

petition and the order approving the settlement issued by the

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Insurance Compliance Bureau.

Issue One

Is appellant entitled to reimbursement for a bill

received from John V. Stephens, M.D. for a treatment on

April 12, 1991?

Dr. Stephens was appellant's treating physician. According to

Dr. Stephens, appellant reached maximum medical improvement (MMI)

in January, 1988. Although the appellant cites to other evidence

indicating that he continued to experience symptoms, that evidence

does not overrule Dr. Stephens' deposition testimony that appellant

reached MM1 in 1988. Dr. Stephens' office note for the April 12,

1991 visit which is at issue, indicates that appellant had

"aggravated or exacerbated" his condition as a result of recent

work at a recycling center. Appellant failed to carry his burden

of proof in establishing that the treatment at the April 12, 1991

visit was the direct result of his industrial injury. Rather,

there is substantial credible evidence to support the Workers'

Compensation Court's finding that the treatment on April 12, 1991,

was due to appellant's original injury, rather than to some new

aggravation. See Buckentin v. State Comp. Ins. Fund (1994), 265

Mont. 518, 520, 878 P.2d 262, 263. Accordingly, we affirm the

Workers' Compensation Court's denial of reimbursement with regard

to the April 12, 1991, treatment by Dr. Stephens.

Issue Two

Did the Workers' Compensation Court err in denying

appellant's request for reimbursement for chiropractic

treatments by John Francis, D.C. and reimbursement for

mileage expenses in attending the treatments by Dr.

Francis?

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Appellant alleges that Dr. Francis rendered chiropractic

treatments to the appellant from October 31, 1989 through May 22,

1991. At the time of appellant's treatment by Dr. Francis on

October 31, 1989, appellant had been receiving treatment from Dr.

Stephens for over two years. Appellant continued to receive

treatment from with Dr. Stephens during 1988 and 1989 and on

October 21, 1989, Dr. Stephens prescribed a series of two or three

chiropractic treatments a week for two weeks. It is apparent from

the record that Dr. Stephens was appellant's treating physician at

the time Dr. Francis began chiropractic treatments in late October

of 1989.

At the time of appellant's chiropractic treatments, the

Department of Labor's Chiropractic Service Rules provided:

(1) Treatment of an injured worker is permitted

without specific prior authorization for a period not to

exceed 30 days, provided the injured worker is not under

the care of another doctor.

Section 24.29.2001, ARM (repealed effective April 1, 1993).

The above-quoted administrative rule clearly requires

"specific prior authorization" for appellant's chiropractic

treatment. It is clear from the record that appellant did not

obtain any preauthorization from IJSF&G prior to the commencement of

the chiropractic treatments with Dr. Francis, even though USF&G did

pay for the initial four visits pursuant to the limited two-week

prescription given by Dr. Stephens.

We have previously held that where a claimant fails to comply

with the Administrative Rule requiring authorization to change

physicians or seek care from a chiropractor when he is already

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being treated by another physician, the insurer cannot be charged

for the services of the second physician or chiropractor. See

Weaver v. Buttrey Food and Drug (1992), 255 Mont. 90, 98, 841 P.2d

476, 481-82. Accordingly, we hold that the Workers' Compensation

Court was correct in concluding that appellant was not entitled to

reimbursement for treatment rendered by Dr. Francis. Having so

held, we likewise affirm the Workers' Compensation Court's denial

of travel expenses in connection with the chiropractic treatments

rendered by Dr. Francis.

Issue Three

Did the Workers' Compensation Court err in denying

reimbursement to the appellant for filing fees incurred

by him in his prior appeal to the Montana Supreme Court?

The Workers' Compensation Court denied appellant's request for

reimbursement of his filing fees incurred at the Montana Supreme

Court for the reason that the Workers' Compensation Court was

without jurisdiction to order repayment of costs incurred in

proceedings before the Montana Supreme Court. The Workers'

Compensation Court was correct in its conclusion and we affirm.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.
We concur: