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Mellinger v. Montana State Fund

Court of Workers Compensation of Montana

August 8, 2018

TODD MELLINGER Petitioner
v.
MONTANA STATE FUND Respondent/Insurer

          Submitted: February 7, 2018

          ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

          DAVID SANDLER JUDGE

         Summary: Respondent moved for summary judgment, asserting that Petitioner's medical benefits terminated under the 60-month rule at § 39-71-704(1)(f), MCA (2005), and that it is not liable for a surgery to remove a bone spur, because Petitioner put off the surgery for more than 60 months and did not otherwise use his medical benefits during that time. Petitioner argues that Respondent is liable for the surgery because it falls under the prosthesis exception to the 60-month rule. Petitioner also argues he used his medical benefits and satisfied the 60-month rule because Respondent authorized the surgery while his medical benefits were open. Finally, Petitioner argues that Respondent's authorization of his surgery constitutes an enforceable contract.

         Held: This Court granted summary judgment for Respondent. First, the prosthesis exception does not apply because regardless of whether Petitioner's special shoes and boots, brace, and orthopedic screws are prostheses, the surgery to remove a bone spur is not a surgery to repair, replace, or monitor a prosthesis. Second, Petitioner's medical benefits terminated because he put off the surgery for more than 60 months and did not otherwise use his medical benefits. Finally, Respondent did not contractually agree that Petitioner could have the surgery beyond the 60-month limitation.

         ¶ 1 Respondent Montana State Fund (State Fund) moves for summary judgment, asserting that it is not liable for a surgery to remove a bone spur in Petitioner Todd Mellinger's ankle because his medical benefits terminated pursuant to § 39-71-704(1)(f), MCA (2005). Mellinger maintains that his medical benefits remain open and that State Fund is liable for the surgery. This Court grants State Fund's summary judgment motion.

         STATEMENT OF FACTS

         ¶ 2 Making all inferences in Mellinger's favor, the following are the facts for purposes of this ruling.

         ¶ 3 On November 2, 2006, Mellinger suffered a severe right-foot injury while working for Montana Merchandising, Inc.

         ¶ 4 State Fund accepted liability and paid medical and indemnity benefits. State Fund also sent Mellinger a letter, noting that "medical benefits terminate when they are not used for a period of sixty (60) months."

         ¶ 5 Mellinger underwent surgery with Patrick J. Thomas, MD, which included the placement of three orthopedic screws in his ankle.

         ¶ 6 Thereafter, State Fund paid for Mellinger to travel to Spokane to be fitted for specialized shoes and boots and paid for the shoes and boots. State Fund also paid for a custom ankle brace.

         ¶ 7 On June 21, 2007, Mellinger returned to Dr. Thomas, who noted:

Currently Todd is tolerating his injury reasonably well. He understands that the joints in the midfoot were severely destroyed by the injury and likely will require arthrodesis at some point in his life if pain becomes significant. Given his young age, I expect that this will likely occur in the next decade, and this would require arthrodesis of the talonavicular and calcaneocuboid joints. He is doing well at this time with his AFO and his special shoe. I have given him a prescription to have a boot fabricated to support his injured extremity. I believe he is at maximal improvement at this time . . . .

         ¶ 8 In 2008 and 2010, State Fund authorized Hanger Prosthetics & Orthotics to modify Mellinger's boot and shoe soles.

         ¶ 9 Mellinger saw Dr. Thomas on May 13, 2011, complaining of pain in his ankle and a catching sensation. A radiograph revealed a bone spur. Dr. Thomas recommended a "distal tibial ostectomy to remove the spur, improve range of motion, and pain." Mellinger told Dr. Thomas that he would have the surgery the following winter.

         ¶ 10 State Fund authorized the surgery. Mellinger "did not know that there was an expiration date for that surgery approval."

          ¶ 11 On February 7, 2012, the State Fund's claims examiner contacted Mellinger to determine the status of the surgery.[1] Mellinger stated that he had been unable to have the surgery yet due to his work schedule, but that it would likely happen in March. Mellinger informed the claims examiner that Dr. Thomas thought he would be off work for 6-8 weeks.

         ¶ 12 On May 2, 2012, State Fund contacted Mellinger, again inquiring on the surgery status. Mellinger stated a recent work promotion had caused him to delay the surgery.

         ¶ 13 On November 8, 2012, State Fund sent Mellinger a letter, conveying that his claim had been placed in "inactive status" because he was not receiving medical or wage loss benefits.

         ¶ 14 On May 9, 2017, Mellinger called State Fund and stated he wanted to proceed with the surgery. State Fund denied liability for the surgery on the grounds that Mellinger's medical benefits terminated under § 39-71-704(1)(f), MCA (2005), because Mellinger had not used them for 60 consecutive months.

         ¶ 15 Mellinger currently wears a Kenetrek EverStep Orthopedic Boot, which incorporates an ankle brace and has a rocker bottom sole.

         ¶ 16 In his Petition for Hearing, Mellinger seeks a general order that his medical benefits remain open and a specific order that State Fund is liable for the surgery to remove the bone spur.

         ¶ 17 In its Response to Petition for Hearing, State Fund asserts that Mellinger's medical benefits terminated under § 39-71-704(1)(f), MCA (2005), which provides that with an exception to repair or replace a prosthesis, medical benefits terminate if not used for a period of 60 consecutive months. State Fund asserts that Mellinger does not have a prosthesis.

         LAW ...


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