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Workers' Compensation and the Brain Injury


Blog Category:
5/2/2013
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Thomas Millenkamp v. Millenkamp Cattle, Inc. and Nationwide Mutual Ins. Co.

ISSUE: Whether the district court erred in denying the Petitioner, Thomas Millenkamp, the alternate medical care he requested in his petition.

HOLDING: No, the district did not err and the Court of Appeals affirms the decision to deny the Petitioner the alternate medical care he requested.

SUMMARY OF FACTS:  Millenkamp was injured at work, resulting in a traumatic brain injury.­­­ His employer, Millenkamp Cattle, Inc. and Nationwide Mutual accepted liability.  The issue arose after Millenkamp had been seeing Dr. Sterrett, a neurologist for several years, at which time Dr. Sterrett retired.  Millenkamp then sought to have his prescriptions refilled by his primary care physician.  When the treatment was no longer enough for Millenkamp’s neurologic issues, Millenkamp asked his primary doctor for a referral to a neurologist, Dr. Neiman.  Dr. Neiman was not authorized by Millenkamp’s employer and they informed Millenkamp that they would not pay for treatment through his care, and Millenkamp would instead have to see Dr. Rizzo for authorized care.  Millenkamp filed a petition for alternate medical care seeking to name Dr. Neiman as an authorized treating physician.  This petition was denied, and he then sought judicial review of that decision.  Millenkamp also filed a second petition at this time for alternate medical care.  The deputy ruled in favor of Millenkamp on this petition, but the employer then sought judicial review.  The district court remanded both rulings back to the agency for another hearing.  Millenkamp dismissed his first petition, so only the second was up for rehearing, and the agency denied the request for alternate medical care.  The denial was based on a finding that the employer has a statutory right to choose the medical care provider and it did so with a reasonable neurologist.  Millenkamp file for judicial review of that decision, and the court upheld the agency’s ruling denying alternate care.  This appeal then followed.

The Court of Appeals affirmed the lower court’s upholding of the agency ruling, thereby denying alternate medical care to Millenkamp. The Court cited that under Iowa Code § 85.27(4), an employee has the right to request alternate medical care if he is dissatisfied if the care originally offered by the employer.  However, the commission need only grant such care if the treatment provided by the employer is not prompt, not reasonably suited to treat the injury, or is severely inconvenient to the employee.  The Court found that the employer properly authorized a neurologist once they were informed the original doctor retired, and provided prompt attention to the Petitioner’s care.  Therefore, it ruled in favor of the employer by denying the Petitioner’s request for alternate medical care.

Attorney Lombardi's Opinion & Commentary: With all due respect the Court this injured worker has a permanent brain injury and his care is critical as is the choice. In my humble opinion it's not enough to just get by. It's important the employee have confidence in who is treating him, so that he can get as good as he's going to get. Rizzo is a doctor I'm familiar with and who I would not treating me if I had a brain injury. I could care less how much money Nationwide was saving using him, I'd want to choose my own neurologist. I respectfully disagree with the law and the Court's ruling.



Category: Workers' Compensation & Employee Rights


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