FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on February 16, 1994, in
Helena, Montana. The Honorable Mike McCarter, Judge of the
Workers' Compensation Court, presiding. Petitioner,
Mischelle Schelske (claimant), was present and represented by
Mr. John C. Doubek. Respondent, Liberty Northwest Insurance
Corporation (Liberty), was represented by Mr. Michael C.
her husband (Rick Schelske) and Harry Etter, M.D., testified.
The testimony of Dana Headapohl, M.D., was presented by
deposition. Exhibit Nos. 1 through No. 3 were admitted into
evidence by agreement of the parties.
considered the Pretrial Order, the testimony presented at
trial, the demeanor of the witnesses, the deposition
testimony of Dr. Headapohl and the exhibits, the Court makes
Claimant is 30 years old and married to Rick Schelske. She is
extremely intelligent, articulate and medically literate.
September of 1984 to December of 1992, claimant was employed
at the J.C. Penney Beauty Salon in Helena, Montana. Claimant
started her employment as a cosmetologist and was promoted to
the position of manager.
the years claimant was exposed to numerous chemicals at her
place of work.
During the past several years claimant has suffered from
multiple medical problems and seen numerous physicians. Her
problems are genuine but have been difficult to diagnose and
treat. Understandably, she has experienced frustration and
anxiety over her health.
Although claimant has seen numerous physician specialists
over the years, Dr. Loretta Meske, a Helena internist, was
claimant's primary treating physician from 1984 or 1985
until January 1993.
January 1992, claimant began experiencing cough, nasal and
sinus congestion and sore throat. (Ex. No. 3 at 343.)
According to medical records, she had been suffering
recurrent sore throats since as early as August 1991. (Ex.
No. 3 at 187.) Over the next few months her nasal and sinus
congestion and sore throat continued, and she was examined
and treated by several physicians.
or about October 5, 1992, claimant filed a claim for
compensation stating that she was suffering an occupational
disease caused by her exposure to chemicals at her workplace.
(Ex. No. 2.)
claim was accepted by claimant's employer, which is
self-insured under Plan I of the Workers' Compensation
Act. While Liberty Northwest Insurance Corporation is listed
in the caption as the insurer, Liberty Northwest is
apparently a third-party administrator for the employer, J.C.
Penney Company. Therefore, reference to "insurer"
throughout these findings shall mean either or both Liberty
Northwest and J.C. Penney.
Although not agreeing that all of claimant's
medical conditions are related to her occupational disease,
the insurer has expressly stipulated that claimant suffers
from an occupational disease resulting from her employment.
(Respondent's Proposed Findings of Fact, No. 3.)
present controversy relates to certain medical expenses which
were incurred by the claimant without authorization of the
insurer. The largest expense was for evaluation at the
Environmental Health Center in Dallas, Texas (Dallas Clinic),
where claimant underwent testing for sensitivity to various
chemicals. Claimant also seeks reimbursement for an air
purifier, a respirator, oxygen, chiropractic visits,
medications, and fees paid to four different medical
practitioners, along with interest charges she has incurred
by charging the expenses to her credit cards. The following
is an itemized list of expenses for which claimant seeks
Long distance telephone
Respirator and exchanger
(Tr. at 34-36; Ex. No. 1.) The expenses for travel, long
distance telephone charges, blood tests, prescriptions, and
Dr. Johnson's services all relate to the claimant's
evaluation at the Dallas Clinic. (Tr. at 34-35.)
or about September 9, 1992, claimant was examined by Dr. Dana
Headapohl, a physician practicing in Missoula, Montana. Dr.
Headapohl specializes in occupational and environmental
medicine and is board certified in that field. In addition to
her medical training, she has a masters degree in public
health, specifically relating to occupational and
environmental disease, and a masters of science degree in
environmental engineering. She is a member of the Montana
Occupational Disease Panel and is the medical director of the
Occupational Health Center at St. Patrick Hospital. She
spends approximately half of her professional time dealing
with persons with occupational illnesses.
Claimant, rather than the insurer, selected Dr. Headapohl.
Headapohl examined claimant and diagnosed upper respiratory
irritation and sensitization secondary to work exposures. On
a form dated October 16, 1992, Dr. Headapohl stated that
claimant should be able to return to work, provided adequate
ventilation was available. (Ex. No. 3 at 274, 280-281.) The
return to work authorization was on a trial basis. (Ex. No. 3
Headapohl did not assume claimant's regular care. Dr.
Meske continued to be claimant's primary treating
a letter dated October 14, 1992, Dr. Meske reported that
claimant had returned to work, but "[i]f recurrent
symptoms continue, she will be advised to discontinue work
unless some alternative can be arranged regarding the
chemical exposure." (Ex. No. 3 at 279, 282.)
Claimant attempted to return to work but her symptoms did not
improve. She was unable to continue working at the beauty
a report dated December 11, 1992, Dr. Meske stated that
claimant would have to work in some capacity that did not
involve exposure to hair salon chemicals. (Ex. No. 3 at 464.)
a letter dated January 21, 1993, Dr. Headapohl recommended to
the insurer that claimant be evaluated at the National Jewish
Occupational Health Clinic in Denver, Colorado. Dr. Headapohl
was familiar with National Jewish and had a positive opinion
of its program. (Ex. No. 3 at 668; Headapohl Dep. at 28.) She
recommended the evaluation "to see what chemicals seemed
to cause most of her problems so that we would know for job
placement purposes what jobs would most likely be safe."
(Headapohl Dep. at 28.)
insurer did not accept Dr. Headapohl's recommendation and
refused to authorize evaluation of claimant at National
Jewish. On her own, claimant also decided against testing at
National Jewish because she believed that the facility would
not test her for sensitivity to formaldehyde. (Tr. at 25-26.)
Dr. Headapohl, however, indicated her belief that National
Jewish does perform dermal (skin) testing for
formaldehyde, although it does not do respiratory testing for
formaldehyde. (Headapohl Dep. at 29.)
Claimant began her own inquiries regarding facilities which
test for sensitivity for chemicals. She learned of the Dallas
Claimant then sought medical approval for her attendance at
the Dallas Clinic. She made inquiries of Dr. Headapohl and
also sought the telephonic advice of Dr. Bob Harrison of the
University of California at San Francisco, who is an expert
on chemical sensitivity. According to claimant, both doctors
approved the Dallas Clinic as appropriate. According to
claimant, Dr. Harrison "said he felt that Dallas would
be the best thing for me with the kind of problems that I was
having" and Dr. Headapohl "gave me a verbal
recommendation to Dallas but [said] that it would have to
come through my treating physician. . . ." (Tr. at 29,
Headapohl disputed claimant's assertion that either she
(Dr. Headapohl) or Dr. Harrison had approved Dallas, and
testified that in fact both she and Dr. Harrison would not
recommend the Dallas Clinic and had serious reservations
about the clinic's testing methodology. According to Dr.
I have reservations about that particular clinic. Time may
show that the methods are valid but I can't, in good
conscience, recommend any treatment facility that doesn't
provide well-documented methodology. In my opinion, at that
time, Dr. Rea's clinic [the Dallas Clinic] did not
provide that to me.
(Headapohl Dep. at 30.) Dr. Headapohl went on to say:
I felt that Ms. Schelske should have a further workup. I do
not feel now, nor did I feel then, that Dr. Rea's clinic
was the diagnostic clinic of choice. In fact, I had told her
that I would not be making that referral,
that she was -- that I was advising her if she wanted to do
it, to have somebody else make that referral. I do not make
referrals lightly and I cannot make it to Dr. Rea's
clinic. [Emphasis added.]
(Headapohl Dep. 50-51.) Dr. Headapohl did suggest that
claimant talk with Dr. Harrison, and Dr. Headapohl herself