KEVIN L. HOLLAR, Employee/Appellant, v. FORD MOTOR CO., SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 14, 2002

                                                                             

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where a particular treatment modality is necessary to treat a work-related injury, payment for that treatment may not be denied on grounds that another provider could have rendered the service more cheaply.  Nothing in the law gives an employer and insurer the right to mandate that an employee receive care from the lowest cost provider; cost concerns are amply addressed by the medical fee schedule.

 

PENALTIES.  No penalty was warranted for the employer=s failure to pay treatment expenses where the employer made a legitimate argument on an issue of first impression.

 

Affirmed in part and reversed in part.

 

Determined by Wilson, J., Johnson, C.J., and Pederson, J.

Compensation Judge:  Jennifer Patterson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of physical therapy treatment expenses and penalties.  We reverse the judge=s decision as to treatment expenses but affirm the denial of penalties.

 

BACKGROUND

 

The employee sustained a work-related injury to his low back on January 31, 2000.  Ford Motor Company [the employer], self-insured, admitted liability for the injury and paid certain benefits.  The employee=s treating physician eventually referred the employee for physical therapy.  The employer maintains that, before this treatment began, the employee was told that the employer would not pay for offsite physical therapy because the employer had an onsite physical therapy department, run by Thera Matrix, that could provide the prescribed care.

 

According to the evidence submitted at hearing, the employer has a contract with Thera Matrix for onsite physical therapy at the employer=s St. Paul assembly plant.  The therapy is available to the employer=s employees for both work-related and nonwork-related conditions, but employees with work-related conditions are given priority and may schedule physical therapy during work hours.  The employer pays Thera Matrix a flat annual fee and is not billed per client or per service rendered.

 

The employee elected to receive the prescribed physical therapy at MultiCenter Physical Therapy, in Roseville, rather than at the physical therapy facility in the employer=s plant.  The employer subsequently refused to pay the physical therapy bills, and the matter eventually came on for hearing before a compensation judge at the Office of Administrative Hearings.  At issue was the compensability of the physical therapy bills and a claim by the employee for penalties based on the employer=s refusal to pay those bills.

 

At the time of the hearing, the employer conceded that the physical therapy received by the employee was Anecessary@ and causally related to the employee=s admitted work injury.  They maintained, however, that the employee=s treatment at MultiCenter Physical Therapy was not reasonable in view of the fact that the employee could have received the same treatment, with less expense to the employer, at the employer=s onsite physical therapy facility.

 

In a decision issued on November 15, 2001, the compensation judge ruled in the employer=s favor, reasoning that the employee had no right to insist on any particular physical therapy provider in view of the routine nature of the treatment and the availability of more economical care, both in terms of treatment cost and lost time from work, at the employer=s onsite physical therapy department.  In so concluding, the judge noted that, while the employee had received physical therapy at MultiCenter for other conditions in the past, he had not sought the services of any particular therapist and had not shown the need to have a therapist with any unusual expertise.  For these reasons, the judge denied the treatment expense claim and also the claim for penalties.  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

1.  Compensability of Physical Therapy Expenses

 

Minn. Stat. ' 176.135, subd. 1, provides as follows:

 

Subdivision 1.  Medical, psychological, chiropractic, podiatric, surgical, hospital.  (a) The employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, or, at the option of the employee, if the employer has not filed notice as hereinafter provided, Christian Science treatment in lieu of medical treatment, chiropractic medicine and medical supplies, as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.  This treatment shall include treatments necessary to physical rehabilitation.

 

With regard to choice of physician, the statute specifies,

 

Subd. 2.  Change of physicians, podiatrists, or chiropractors.  The commissioner shall adopt rules establishing standards and criteria to be used when a dispute arises over a change of physicians, podiatrists, or chiropractors in the case that either the employee or the employer desire a change.  If a change is agreed upon or ordered, the medical expenses shall be borne by the employer upon the same terms and conditions as provided in subdivision 1.^[1]

 

As a general rule, employees in Minnesota have been afforded great latitude both in choosing, and changing, physicians.  See Maronde v. Robert Carr Constr. Co., 306 Minn. 529, 235 N.W.2d 207, 28 W.C.D. 129 (1975).  As the Minnesota Supreme Court has stated, AWith respect to the original treating physician the employee >should have the option or unquestioned right to choose his medical attendant.=@  Id. at 532, 235 N.W.2d at 209, 28 W.C.D. at 132, quoting Lading v. City of Duluth, 153 Minn. 464, 467, 190 N.W.2d 981, 982, 1 W.C.D. 206, 209 (1922).  However, we have not found any cases dealing with the employee=s right to choose the provider of ancillary medical services, such as physical therapy.  The issue appears to be one of first impression.

 

The compensation judge explained that, because nothing in the statute or rules expressly entitles the employee to choose any particular physical therapist, the issue should be decided using the kind of analysis typically applied when considering issues of reasonableness and necessity of disputed medical care.  In essence, the judge denied the claim on grounds that the employee did not establish entitlement to the more expensive care at MultiCenter when the same treatment was available at the employer=s onsite facility; in the end, cost was the determining factor.  We are not persuaded by the compensation judge=s reasoning.

 

Certainly cost may be a factor in determining whether a particular kind of treatment is reasonable and necessary to cure and relieve an employee from the effects of a work injury.  See, e.g., Ostrowski v. Majestic Elec. Co., 47 W.C.D. 218, 224 (W.C.C.A. 1992).  However, we see no indication that the legislature intended to give employers the authority to force injured workers to seek treatment from the lowest cost provider when the particular treatment modality at issue is reasonably required to treat a work-related condition.^[2]  The expense of otherwise reasonable treatment is limited by the medical fee schedule, Minn. R. ch. 5221.0100, which was promulgated to Aprohibit healthcare providers . . . from receiving excessive reimbursement for their services.@  Minn. R. 5221.0300.  The fee schedule by definition sets a Areasonable@ reimbursement rate.  Employers and insurers are further protected from liability for unnecessary services by the medical treatment parameters, Minn. R. 5221.6010, et seq., which were developed to Aprevent excessive services@ under Minn. Stat. '' 176.135 and 176.136, subd. 2.  Minn. R. 5221.6020, subp. 1.  As such, the system as it exists contains adequate cost containment safeguards without the need to further infringe on choices traditionally made by injured employees and their doctors.

 

Employers and their insurers may defend against treatment claims based on the treatment parameters and traditional case law factors bearing on reasonableness and necessity.  See, e.g., Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990); Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991).  However, if a particular treatment is otherwise required to cure and relieve an employee from the effects of a work injury, the claim may not be denied on grounds that some other provider could have rendered the service in question more cheaply.  That is, if the health care service is reasonable and necessary, the employer and insurer are liable for payment, subject to the fee schedule.  In the present case, the employer admitted that the physical therapy provided by MultiCenter was necessary and causally related to the employee=s work injury.  As such, the employer is liable for payment for those services, and the judge=s decision to the contrary is reversed.

 

2.  Penalties

 

The compensation judge concluded that, even if the employee had prevailed on the issue of the compensability of the physical therapy expenses, he would not be entitled to penalties under Minn. Stat. ' 176.225 based on the employer=s failure to pay.  We agree.  The employer made a legitimate and good faith argument on an issue of first impression, actually winning at the trial level.  There is no basis for penalties here.  The judge=s decision on this issue is therefore affirmed.