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Hiett v. Montana Schools Group Insurance Authority9/6/2001
a herniated disk, not need surgery, and thereafter get as good as she is going to get with conservative treatment, i.e., reach MMI. Later on, however, her condition may deteriorate to the point that surgery is necessary to improve her condition. At that point, she will no longer be at MMI since there is now treatment which will materially improve her condition. Thus, the surgery will be a "primary medical service."
Analogous to the foregoing case is a situation where a claimant reaches MMI through drug therapy but the drug therapy must be continued to maintain her in a medically stable condition. A clear example is hypothyroidism, which is treatable with natural or synthetic thyroxine or triiodothyronine; withdraw the drug and the individual returns to hypothyroidism, which causes physical complications. At that point the claimant (assuming the hypothyroidism is a work-related condition) is no longer at MMI. With the return to non-MMI status, the drug again becomes a primary medical service. The example given here could very well apply to the claimant's treatment for depression.
The treatment of pain with drug therapy is further removed, but still may be analogous; withdraw pain medication and not only may the individual's suffering increase but she may also suffer physical regression when compensating for her increased pain. The increased pain may also cause increased disability. Pain control is a component of the "healing process" and reintroduction of pain medications may therefore materially improve the individual's condition and once more constitute primary medical services.
Does the primary-secondary services distinction require that claimant terminate drug therapy and relapse before the insurer is once again liable for the therapy? Applying the primary services provision as written, it appears so, unless some other provision requires payment of medications once the worker has reached MMI.
One possible source of authority for payment of medications prescribed after MMI is the secondary services provision set forth in section 39-71-704(1)(b), MCA (1995), which provides:
(b) The insurer shall furnish secondary medical services only upon a clear demonstration of cost-effectiveness of the services in returning the injured worker to actual employment.
On its face, the subsection requires secondary medical services where cost-effective to return an injured worker to actual employment. It has no application to the present facts since claimant has failed to demonstrate her medications will enable her to return to actual employment. Similarly, it has no application to permanently totally disabled claimants, or to permanently partially disabled claimants where cost-effectiveness is unproven.
Another possible source is found within definition of secondary services. Section 39-71-116(29), MCA (1995), provides in relevant part:
(29) (a) "Secondary medical services" means those medical services or appliances that are considered not medically necessary for medical stability. The services and appliances include but are not limited to spas or hot tubs, work hardening, physical restoration programs and other restoration programs designed to address disability and not impairment, or equipment offered by individuals, clinics, groups, hospitals, or rehabilitation facilities. [Emphasis added.
The bolded language does not contain the word "achieve," as does the primary services provision in section 39-71-704(1)(a), MCA (1995). "Medically necessary for medical stability" can reasonably be read as meaning not only medically necessary for "achieving" but also for "maintaining" medical stability. If that read
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