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Simms v. State Compensation Insurance Fund7/12/2005
Submitted on Briefs: October 6, 2004
Randall Simms (Simms) appeals from a judgment entered by the Workers' Compensation Court (WCC) on March 15, 2004, dismissing, without prejudice, Simms' petition to require the Montana State Fund (State Fund) to furnish him a handicapped accessible van. We affirm.
We address the following issue:
Did the WCC err by denying the claimant's petition for provision of a handicapped accessible van?
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 1999, while working as a glazier for Bozeman Glass, Simms suffered a laceration to the radial artery of his right forearm. Immediately following his injury, Simms was treated at the Bozeman Deaconess Hospital emergency room where the laceration was repaired. The following day, May 4, 1999, Simms developed volar compartment syndrome, which was treated with a fasciotomy, arterial repair and secondary closure. Subsequently, Simms developed complex regional pain syndrome (CRPS), also known as reflex sympathetic dystrophy (RSD). At the time of the injury, Bozeman Glass was insured by State Fund, who has accepted liability for Simms' industrial injury.
RSD is a malfunction of the central nervous system which involves the sending of abnormal pain signals from non-painful stimulae. RSD initially affected Simms' arms and was treated by the implantation of a spinal cord stimulator in his cervical area, but the condition thereafter progressed to his legs and a second spinal cord stimulator was implanted near his lumbar spine. Although Simms is primarily confined to a wheelchair, Dr. John C. Oakley (Dr. Oakley) testified that Simms is able to make some standing transfers. Dr. Oakley, who testified by deposition, is a board certified specialist in neurosurgery and pain management and has treated Simms since 1999.
In late January 2002, at the request of State Fund, Simms was examined at Progressive Rehabilitation Associates (PRA) in Portland, Oregon. Simms went through a four-week out-patient multi-disciplinary pain management program to determine an appropriate treatment plan to help him function. PRA diagnosed Simms' whole person impairment to be 71 percent, but determined that he was capable of performing full-time sedentary work. PRA also indicated a vehicle with a wheelchair lift would be very helpful in assisting Simms with his transportation needs, and would give him the opportunity to get out of the house more often. Dr. Oakley concurred with Simms' diagnosis, but disagreed with PRA's determination that Simms was employable, deeming him permanently totally disabled.
On July 30, 2002, Dr. Oakley wrote a prescription for a handicapped accessible van, noting Simms' need for physical therapy in Bozeman and follow-up visits in Billings every one to three months. Dr. Oakley testified that a van would help Simms obtain psychiatric counseling, if an appropriate psychological resource was found, and further stated a van would enable Simms to get out more, thereby improving his mental health.
Simms is now deemed permanently totally disabled with no reasonable prospect of performing gainful employment. Although Simms suffered a vertebral compression fracture in the summer of 2003, Dr. Oakley testified that Simms remains at maximum medical improvement (MMI) and there is no curative treatment for RSD on the horizon. Simms' compression fracture was due to bone density loss, a result of his immobility, and, as a result, he needs physical therapy three times a week to minimize bone density loss. Bozeman is the nearest appropriate physical therapy facility, because in-home therapy and treatment in Livingston are unavailable, due to the
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