Boucher v. John F. Murphy Homes
Maine Employers' Mutual Insurance Company
March 9, 2015
Future Medical Expenses Slip & Fall Neck Shoulder Spine Vaillancourt v. Viner Brothers
Summary from the Troubh Heisler Attorneys
The Maine WCB Appellate Division recently issued a decision limiting a hearing officer’s discretion to order payment of future medical bills. In Boucher v. Murphy Holmes, Boucher slipped on stairs at work, injuring her neck, shoulder and spine. After surgery she had chronic myofascial pain requiring ongoing treatment including massage therapy, recommended by her primary care provider. Murphy controverted further massage therapy, and Boucher filed a petition seeking an order for payment of ongoing massage therapy.
Dr. Esponnette performed a §312 IME and found that her past therapy was reasonable and necessary and that future massage was reasonable but "strictly palliative.” Hearing Officer Goodnough initially ordered Murphy to pay up to $1000 per year for ongoing massage therapy; on further findings, he modified his decision to require Murphy to pay for 24 massages per year. Murphy appealed, and the Appellate Division modified H.O. Goodnough’s decision but otherwise affirmed it.
The Appellate Division panel cited a 1989 decision by the former Worker's Compensation Commission’s Appellate Division, Vaillancourt v. Viner Brothers, which recognized the commissioner’s (now hearing officer's) discretion to order future medical payments but established guidelines that limit that discretion. The "Vaillancourt guidelines" provided that hearing officer should not provide “blanket authorizations” for future treatment. Instead:
1. The employee must show:
a. the future cost of that treatment;
b. the need for ongoing treatment, and
2. The hearing officer must determine:
a. the necessary length of time or number of treatments, and
b. the maximum period and maximum cost of the treatment.
The panel affirmed the H.O. Goodnough's finding that “merely because a treatment is palliative does not make it non-compensable.” Because the treatment was palliative, without a predicted endpoint or expected recovery date, the panel also stated that “the reasonableness and necessity of such ongoing treatment should be assessed after periodic review, based on the actual results obtained, including the duration of relief and functional improvement.”
As H.O. Goodnough’s order to pay for massage therapy has been in effect since his 2/26/14 decision, the panel modified the decision to limit the pre-approval to 18 months from the date of the decision. The panel also stated that, before the expiration of that period, Boucher could file another petition requesting an extension of treatment, and Murphy could file a petition “seeking modification or relief from the present order based on a showing of changed circumstances.” This decision should help employees, employers and insurers come to agreements on funding limited future medical care for chronic conditions, thus avoiding litigation.