HESS V. PRAIRIE MEADOWS RACE TRACK

Page 1

before the iowa workers' compensation commissioner

______

:

JULIE G. HESS, :

:

Claimant, :

:

vs. :

: File No. 1238182

PRAIRIE MEADOWS RACE TRACK, :

: ALTERNATE MEDICAL

Employer, :

: CARE DECISION

and :

:

EMC INSURANCE COMPANIES, :

:

Insurance Carrier, :

Defendants. :

______

STATEMENT OF THE CASE

An original notice and petition seeking alternate medical care was filed by claimant on January 11, 2000, under Rule 876 IAC 4.48. A telephonic hearing on this petition was held on January 24, 2000. All parties were given proper notice and were aware that the undersigned has been delegated final agency decision authority in this proceeding.

This medical care dispute arose over care being given by defendants as a result of a work injury on or about December 15, 1998, liability for which is admitted by defendants. The entire hearing was recorded by audio tape. Any rights of appeal will run from the date of the decision.

FINDINGS OF FACT

Having reviewed the written evidence, having heard the testimony of the witness and the statements of counsel, this deputy worker's compensation commissioner makes the following findings of fact:

On or about December 15, 1998, claimant suffered an injury which arose out of and in the course of his employment with Prairie Meadows Race Track. The injury involved the claimant's left shoulder. As a result of the work injury, claimant was offered medical care and received treatment from several physicians, consisting of evaluation of her pain from a vascular standpoint, a thoracic outlet perspective, and an orthopedic perspective. None of the treatments found a clear cause of the claimant's pain or a solution.

In November 1999 the claimant saw Keith Riggins, M.D., for an independent medical examination. In his report Dr. Riggins suggested that the claimant be given a bone scan to determine if the claimant had a stress fracture in her upper ribs to confirm his impression that the claimant has thoracic outlet syndrome. The claimant requested that a bone scan be performed in accordance with Dr. Riggins’ suggestion by a prior treating physician, Alan Koslow, M.D. The defendants refused to provide the care requested by claimant. Dr. Koslow's report, Exhibit A, page 3, notes that if she has no relief that she should return and a scalenus anticus release may be considered. This indicates that Dr. Koslow may have further treatment available for the claimant.

It is found that the treatment offered by defendants is not reasonably suited to treat the injury without undue inconvenience to the claimant and that the alternate care should be granted, in that the claimant shall be allowed to return to Dr. Koslow for further evaluation and a bone scan as suggested by Dr. Riggins.

CONCLUSIONS OF LAW

This deputy worker's compensation commissioner makes the following conclusions of law:

This is a proceeding brought under Iowa Code section 85.27. This Code section provides in part that the employer is obligated to furnish reasonable medical services and supplies to treat an injured worker and the employer has the right to choose the care. However, the treatment must be provided promptly and the treatment must be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee is dissatisfied with the care offered by the employer, Iowa code section 85.27 provides that the employee must communicate the basis of such dissatisfaction to the employer and if the injured worker and the employer cannot agree on alternate care, the worker's compensation commissioner may allow and order such other care.

As claimant is seeking relief in this case, claimant bears the burden of proof to show by a preponderance of the evidence that the offered medical treatment is not reasonably suited to treat the injury without undue inconvenience to the employee. See Lawyer and Higgs, Iowa Workers’ Compensation-Law and Practice, Second Edition, section15-2, pages 159-161 and cases cited therein.

In the case before us, claimant carried her burden and it was found as a matter of fact that the offered care was not reasonably suited to treat the injury or was an undue inconvenience to claimant.

ORDER

THEREFORE, the following is ordered:

  1. Claimant’s petition for alternate care is granted. Defendants are specifically ordered to immediately provide at their expense the medical care of requested in the petition, namely returning authorized treatment to Dr. Koslow and authorize a bone scan.
  1. Defendants shall pay the costs of this alternate care proceeding pursuant to Division of Workers' Compensation Rule 876 IAC 4.33.

Signed and filed this ______day of January, 2000.

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KENT D. ENWRIGHT
DEPUTY WORKERS' COMPENSATION

COMMISSIONER

Copies to:

Mr. Thomas J. Reilly

Attorney at Law

4900 University STE 200

Des Moines IA 50311

Mr. David L. Jenkins

Attorney at Law

801 Grand Avenue STE 3700

Des Moines IA 50309