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Millard v. ABCO Construction, Inc.

Supreme Court of Idaho

November 2, 2016

THOMAS C. MILLARD, Claimant-Appellant,
v.
ABCO CONSTRUCTION, INC., Employer; and WORKERS COMPENSATION FUND OF UTAH, Surety, Defendants-Respondents.

         2016 Opinion No. 122

         Appeal from the Industrial Commission.

         Industrial Commission ruling, affirmed.

          Ruchti & Beck Law, Pocatello, for appellant. James D. Ruchti argued.

          Bowen & Bailey, Boise, for respondents. R. Daniel Bowen argued.

          BURDICK, Justice

         Thomas C. Millard appeals the Idaho Industrial Commission's (Commission) ruling that certain medical payments made by the Workers Compensation Fund of Utah on behalf of Millard were payable at the statutorily scheduled fee amounts rather than the full invoiced amounts. Millard argues that the Commission incorrectly applied this Court's holding in Neel v. Western Construction, Inc., 147 Idaho 146, 206 P.3d 852 (2009), by ruling that a surety may deny a claim then still be allowed to pay the medical fee schedule rate so long as the surety makes payment before the Commission issues a decision on compensability. We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Millard, a resident of Preston, Idaho, was involved in an industrial accident in October 2006 while working for ABCO Construction, a Utah construction firm. The accident rendered Millard totally and permanently disabled. Millard continues to suffer from back and left lower extremity pain, neck and shoulder pain, and a traumatic brain injury. The Workers Compensation Fund of Utah originally handled Millard's industrial claim as a Utah case, however, once the case entered litigation, the case was transferred to Pinnacle Risk Management Services, a third-party administrator in Boise (ABCO, Workers Compensation Fund of Utah, and Pinnacle collectively "Surety"). Millard settled his original litigation with a lump sum agreement that left open medical care and related charges.

         Part of Millard's ongoing medical care included epidural steroid injections and physical therapy. Millard received epidural injections from Vikas Garg, M.D., between October 2012 and October 2014. He received physical therapy treatments from late August 2011 through December 2011.[1] From October 2012 until October 2013, Millard's visits with Dr. Garg were unauthorized by Surety and Surety refused to pay for those visits. Surety authorized treatment by Dr. Garg beginning in November 2013 and visits from that time up to November 2014 were paid for by Surety.[2]

         At the Commission hearing, Millard argued that he was entitled to payment for the October 2012 to November 2013 treatment with Dr. Garg. Millard also argued that he should be reimbursed for his medical expenses related to the epidural injections and physical therapy sessions at the full invoiced rate rather than the scheduled fee rate. Adopting the Referee's proposed findings of fact and conclusions of law as its own, the Commission ruled that pursuant to Idaho Code section 72-432(1) Surety had failed to provide reasonable medical care from October 2012 to November 2013. Accordingly, Surety was required to pay for Millard's treatment with Dr. Garg for the period of October 2012 through November 2013. Furthermore, the Commission ruled that under Neel, Millard was entitled to reimbursement at the full invoiced rate for the epidural injections completed between October 2012 and November 2013. The Commission found that the remaining epidural treatments and physical therapy sessions were not subject to Neel and payment at the fee schedule rates was appropriate. Millard timely appeals the Commission's ruling that Millard was not entitled to the full invoiced amounts for the epidural injections from November 2013 through October 2014 and the late August 2011 through December 2011 physical therapy sessions.

          II. STANDARD OF REVIEW

         "This Court exercises free review over the Commission's legal conclusions but does not disturb factual findings that are supported by substantial and competent evidence." Neel, 147 Idaho at 147, 206 P.3d at 853.

         III.ANAL ...


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