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Messitte v. Liberty Mutual Fire Insurance Company8/31/2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary:
During the summer of 1991, claimant worked as a waitress in the coffee shop at Lake McDonald Lodge in Glacier Park. She developed pain in her upper and middle back, from carrying heavy tubs and trays. Her claim was accepted as an occupational disease. Over the years she has continued to have the same back complaints as during the summer of 1991 and, with some lapses, has received treatment continually since then, primarily in the form of massage and exercise. The insurer paid until 1998 then denied liability, but has since paid for treatment to date. Thus, any future treatment is at issue. Claimant has been diagnosed with fibromyalgia and her current physician has prescribed a gym membership and massage. The insurer disputes the diagnosis and cites an IME physician's opinion that claimant does not need further treatment.
Held:
Whether or not claimant's condition is properly ascribed to fibromyalgia, she continues to suffer from a medical condition which began during employment at Lake McDonald Lodge. Under section 39-72-704, MCA (1989), claimant is entitled, "without limitation as to length of time or dollar amount, reasonable medical services, hospitalization, medicines, and other treatment approved by the department [of labor]." The insurer is obligated to continue covering reasonable periodic treatment by the treating physician and prescribed medications. The recommendations for massage and health club membership present a different situation. Because these are not provided or supervised by medical personnel, they fall under the phrase "other treatment approved by the department." The Department of Labor and Industry (Department) promulgated regulations to implement the statutory language. The regulations allow treatment necessary to return the patient to preclinical status or establish a stationary status, but disallow a "maintenance" regime or "procedures necessary to prevent the development of clinical status." ARM 24.29.2003 and .2004. The treating physician's testimony squarely places massage and exercise in the "maintenance" category; thus, it is not compensable.
Topics:
Constitutions, Statutes, Regulations and Rules: Administrative Regulations (non-Workers' Compensation Court): ARM 24.29.2003 and .2004.
Claimant suffering from muscle ailment beginning with lifting heavy items during waitressing work ten years prior was not entitled to massage and health club membership under treating physician's recommendations. Under treating physician's testimony, the massage and exercise would constitute maintenance which is not compensable under the regulations. ARM 24.29.2003 and .2004.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-704, MCA (1989).
Claimant suffering from muscle ailment beginning with lifting heavy items during waitressing work ten years prior was entitled to continued medical services from her treating physician, and prescribed medicines, but not to massage and health club membership. The physician's recommenda-tions for massage and health club membership must be judged under the language of section 39-72-704, MCA (1989), allowing "other treatment approved by the department." ARM 24.29.2003 and .2004 set out the Department's standards in implementation of the statute. Under treating physician's testimony, the massage and exercise would constitute maintenance which is not compensable under the regulations.
Benefits: Medical Benefits: Liability.
Claimant suffering from muscle ailment beginning with lifting heavy items during waitressing work ten years pr
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