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Hiett v. Montana Schools Group Insurance Authority9/6/2001
ing is a correct one, then medications and other services necessary for maintaining or keeping a claimant at medical stability, and without which the claimant would revert to non-MMI status, would not be secondary medical services at all. The problem is with the next step, to wit, finding authority for payment of this other type of medical service. I am unable to find that authority in section 39-71-704, MCA (1995), or any other section.
A third source is the palliative and maintenance care provisions found in subsections (1)(f) and (1)(g) of section 39-71-704, MCA (1995). Palliative care, as noted before, is "treatment designed to reduce or ease symptoms without curing the underlying cause of the symptoms." § 39-71-116(20), MCA (1995). Maintenance care is "treatment designed to provide the optimum state of health while minimizing recurrence of the clinical status." § 39-71-116(16), MCA (1995). On-going pain medication and anti-depressants could be characterized as both.
Neither of the palliative/maintenance care subsections apply. Subsection (1)(g) of section 39-71-704, MCA (1995), does not apply since it requires a showing that the treatment will enable the claimant to continue or return to employment. Subsection (1)(f) does not apply since claimant is not permanently totally disabled (subsection (1)(f)(i)) and a prosthetic (subsection (1)(f)(ii)) is not involved.
Some of the language in subsection (1)(f), however, is confusing. The subsection begins, "Notwithstanding subsection (1)(a), the insurer may not be required to furnish, after the worker has achieved medical stability, palliative or maintenance care . . ." (Emphasis added.) The language is confusing because subsection (1)(a), to which the bolded language refers, requires the furnishing of medical services only until the worker achieves medical stability. It does not require furnishing services after the worker reaches medical stability. Thus, the "notwithstanding" language of subsection (1)(f) is either meaningless, or the legislature intended the primary services provision to encompass the furnishing of some medical services even after the claimant has reached MMI. If indeed it did so intend, it failed to specify those services.
And that is not the end of the confusion within the subsection. Subsection (1)(f)(i) provides for payment of maintenance and palliative care for permanently totally disabled workers which "is medically necessary to monitor administration of prescription medication to maintain the worker in a medically stationary condition." The drug monitoring exception applies only to permanently totally disabled workers, who by definition have reached MMI. Where is the requirement that the insurer pay for the drug therapy itself as opposed to the monitoring of the therapy? It is not in subsection (1)(a) since the claimant has achieved MMI, and I cannot find it anywhere else. It is, of course, absurd to require an insurer to pay for monitoring of drug therapy but not the drugs themselves, and the provision strongly suggests that the legislature intended insurers to pay for post-MMI prescription drugs for at least permanently totally disabled claimants.
Absurd construction of a statute is, of course, to be avoided if at all possible. "It is a well-established rule of statutory construction that a statute is to be read as a whole and construed so as to avoid absurd results." Clover Leaf Dairy v. State, 285 Mont. 380, 388-89, 948 P.2d 1164, 1169 (1997). But the Court is also constrained by the prohibition against inserting additional terms and requirements that are not in the statute. Russette v. Chippewa Cree Housing Authority, 265 Mont. 90, 93, 874 P.2d 1217, 1219 (1994). I rea
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