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Cunnington v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

September 24, 2004

RAYMOND M. CUNNINGTON Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent and MIKE GAUB, d/b/a ZEBRA CONSTRUCTION Respondent/Employer.

          Submitted: August 18, 2004

          DECISION AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: Unhappy with the recommendations of his treating physician and the second opinion of another physician, the claimant seeks yet a third opinion.

         Held: 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 medical evidence.

         Topics:

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.

         ¶1 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.

         Facts

         ¶2 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 injury.

         ¶3 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.)

         ¶4 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. at 1.)

         ¶5 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.)

         ¶6 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 ...


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