RAYMOND M. CUNNINGTON Petitioner
UNINSURED EMPLOYERS' FUND Respondent and MIKE GAUB, d/b/a ZEBRA CONSTRUCTION Respondent/Employer.
Submitted: August 18, 2004
DECISION AND JUDGMENT
Unhappy with the recommendations of his treating physician
and the second opinion of another physician, the claimant
seeks yet a third opinion.
Neither an insurer nor the Uninsured Employers' Fund are
required to pay for a third medical evaluation and opinion
merely because a claimant is unhappy with the first two
opinions. To obtain a further opinion paid for by the insurer
or UEF, the claimant must demonstrate the medical necessity
and reasonableness of such opinion and must do so with
Benefits: Medical. A claimant is not entitled to payment for
endless medical evaluations and opinions merely because he is
unhappy with the opinions of his treating physician.
Benefits: Medical. Where a claimant seeks payment for a third
evaluation, he must present medical evidence demonstrating
that such evaluation is medically necessary and reasonable.
This case is submitted for decision based on the Petition for
Emergency Hearing, the Response to Petition, and copies of
documents and depositions attached to the response. The sole
issue is whether the Uninsured Employers' Fund (UEF) must
pay for a third medical opinion requested by the claimant.
The pleadings establish that the claimant injured his ankle
while working for Mike Gaub (Gaub), who was doing business as
Zebra Construction. The injury occurred on September 12,
2002. Gaub was uninsured at that time and the claimant
submitted his claim for compensation to the UEF, which
accepted liability under a reservation of rights. The UEF has
been paying medical and indemnity benefits with respect to
The claimant's ankle injury was serious. It involved both
a fracture and dislocation and he underwent an open reduction
internal fixation of the ankle immediately after the injury.
(Ex. A to Response to Petition.)
On July 10, 2003, the claimant was declared at maximum
medical improvement (MMI) by Dr. Donald P. Ericksen, a
Kalispell physician who performed the original surgery and
treated the claimant thereafter. At the time of MMI, Dr.
Ericksen noted that the claimant still had significant pain.
He further opined that "some further surgery will need
to be done in the future to try to improve his
situation" and recommended an ankle fusion as a better
surgical alternative to an ankle replacement. (Id.
The claimant sought a second opinion from Dr. G.J. Jarrett, a
Missoula surgeon. Dr. Jarrett offered the claimant
conservative options including doing nothing to trying a
special brace. (Ex. B to Response to Petition.) Beyond the
conservative options, he agreed with Dr. Ericksen that fusion
surgery (an arthrodesis) was preferable to an ankle
replacement (arthroplasty). (Id.)
The claimant, however, is unhappy with both opinions and
"has identified orthopedic surgeons in San Francisco,
California, Portland, Oregon and Salt Lake City, Utah that
are practiced in and offer cartilage replacements as an
alternative to [the] more radical surgeries [recommended by
Drs. Ericksen and Jarrett]." (Petition for Emergency
Hearing at 2.) The claimant demands ...