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Schelske v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

April 21, 1994

MISCHELLE SCHELSKE Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for J.C. PENNEY COMPANY, INCORPORATED Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         The 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. Prezeau.

         Claimant, 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.

         Having 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 the following:

         FINDINGS OF FACT

         1. Claimant is 30 years old and married to Rick Schelske. She is extremely intelligent, articulate and medically literate.

         2. From 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.

         3. Over the years claimant was exposed to numerous chemicals at her place of work.

         4. 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.

         5. 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.

         6. In 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.

         7. On 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.)

         8. The 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.

         9. 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.)

         10. The 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 reimbursement:

Expense Amount

Dallas Clinic

$3, 325.49

Travel expenses

1, 110.23

Air purifier

620.00

Long distance telephone

797.00

Respirator and exchanger

75.00

Oxygen

301.00

Chiropractor

475.00

Blood tests

525.00

Prescriptions

173.00

Dr. Martin

1, 491.00

Dr. Nelson

1, 055.00

Dr. Kurtz

80.00

Dr. Johnson

45.00

$10, 072.72

(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.)

         11.On 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.

         12. Claimant, rather than the insurer, selected Dr. Headapohl.

         13. Dr. 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 at 281.)

         14. Dr. Headapohl did not assume claimant's regular care. Dr. Meske continued to be claimant's primary treating physician.

         15. In 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.)

         16. Claimant attempted to return to work but her symptoms did not improve. She was unable to continue working at the beauty salon.

         17. In 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.)

         Dallas Clinic Evaluation

         18. In 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.)

         19. The 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.)

         20. Claimant began her own inquiries regarding facilities which test for sensitivity for chemicals. She learned of the Dallas Clinic.

         21. 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, 26.)

         22. Dr. 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. Headapohl:

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 ...


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