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Fesler v. Industrial Commission

LEXSEE 700 p2d 1116

Pam FESLER, Plaintiff, v. The INDUSTRIAL COMMISSION of the
State of Utah; Robintino's and/or Transamerica Insurance,

No. 19876

Supreme Court of Utah

700 P.2d 1116; 1985 Utah LEXIS 820

May 15, 1985, Filed


James A. Boevers, Salt Lake City; Gordon Strachan, Salt Lake City, for

K. Allen Zabel, Salt Lake City; Robert J. Shanghnessy, Salt Lake City, for

Hall, Chief Justice, wrote the opinion. We concur: I. Daniel Stewart,
Justice, Michael D. Zimmerman, Justice, Leonard H. Russon, District Judge.
Howe, Justice, concurs in the result. Durham, Justice, having disqualified
herself, does not participate herein; Russon, District Judge, sat.



[*1116] Plaintiff challenges a decision of the Industrial Commission
denying her compensation coverage for future chiropractic treatment of an
industrial injury.

Fesler was employed as a waitress at Robintino's restaurant. In January
1983, she slipped on a wet floor while carrying a bucket of ice and wrenched her
back. Soon thereafter, she went to see Dr. Stephen F. Kesler, a chiropractor.
Dr. Kesler diagnosed her condition as a lumbosacral strain for which he treated
her with physical therapy and manipulation. To meet the requirements of Rule 31
of the Industrial Commission Rules and Regulations, Practitioners of the Healing
Arts, Workmen's Compensation Cases, n1 Dr. Kesler prepared [*1117] [**2] a
supplemental report of his treatment of Fesler after her sixteenth visit to him.
n2 In the report, Dr. Kesler estimated that twelve to fifteen further treatments
would be necessary.

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n1 Rule 31 provides:

It is recognized that there is a field of industrial accident injuries which is
within the scope of chiropractic and naturopathic treatment. It is also
700 P.2d 1116, *1117; 1985 Utah LEXIS 820, **2

recognized that there is a field of industrial accident injuries which is
outside the field of chiropractic treatment; for example, the chiropractic
physician shall not perform operative surgery or prescribe drugs or medicine as
defined elsewhere in the laws of the State of Utah. The chiropractic physician
or naturopathic physician shall comply with all rules and regulations of the
Industrial Commission of Utah.

In the event that fifteen (15) treatments are necessary and before further
treatments are given, the chiropractic or naturopathic physician shall mail to
the Industrial Commission, the patient, and the insurance carrier or
self-insurer a supplemental form which shall update the information in the
initial Form 123 Rev. The Supplemental Form shall contain a statement as to the
exact progress of the case and an estimate at the end of each succeeding fifteen
(15) treatments, additional forms shall likewise be timely filed [sic].

Failure to mail the supplemental form as required, in the event said failure
is determined by the Industrial Commission, State of Utah, shall absolve the
insurance carrier or self-insurer from any liability for payment of treatments
given after the time the supplemental form should properly have been mailed.


n2 The Commission found that the report was mailed in substantial compliance
with Rule 31. This finding is not challenged on appeal.

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Upon receiving its copy of Dr. Kesler's report, Transamerica Insurance
(Transamerica) advised both Fesler and Dr. Kesler that it refused to pay for
further chiropractic services. Transamerica also advised Fesler that "we are
willing to have you see Dr. A.F. Martin or Dr. Gary Larsen, both of which [sic]
are well-known orthopedic surgeons." Fesler attempted to see Dr. Larsen, but was
referred instead to Dr. J. Lynn Smith. She saw Dr. Smith three times while
continuing to see Dr. Kesler.

Dr. Smith also diagnosed Fesler's condition as a lumbosacral strain, for
which he prescribed an anti-inflammatory drug and exercises. Fesler testified
that on her third visit to Dr. Smith, he advised her that there was nothing more
he could do for her; that he was unable to prescribe an alternative method of
treatment; that she should continue to perform the exercises; and that her
condition was like a cold or flu, for which there was no cure, but that if the
problem persisted, [**4] she should obtain additional medical care. Dr. Smith
filed a report with the industrial commission, stating it was unknown whether
Fesler would have any permanent injury as a result of the industrial accident.
Fesler further testified she was dissatisfied with the treatment she had
received from Dr. Smith. On the other hand, the treatment she had received from
Dr. Kesler had relieved her pain from the injury. Dr. Kesler testified that
further chiropractic treatment was warranted.

After the hearing, the administrative law judge ordered Transamerica to pay
for all of the chiropractic care Fesler received before Transamerica's denial of
liability, finding that Dr. Kesler's services to that point "were neither
unwarranted nor patently extensive and therefore constitute reasonable
treatment." The administrative law judge further found:

700 P.2d 1116, *1117; 1985 Utah LEXIS 820, **4

As to the necessity for further medical or chiropractic treatment, there is no
apparent reason for such other than the fact that Mrs. Fesler continues to have
back problems of a nondisabling nature and Dr. Kesler believes that she would
benefit from additional chiropractic treatment. Although the Applicant might
well feel better as a result [**5] of further chiropractic treatment and
therapy, the Administrative Law Judge believes such would be more palliative
than curative and that time itself should resolve her problems, if indeed, her
problems consist of no more than lumbosacral strain as presently indicated.

Based on this reasoning, the administrative law judge denied worker's
compensation benefits to Fesler for further chiropractic treatment. The
commission adopted the findings of the administrative law judge and affirmed his
order which denied further treatment.

Plaintiff contends the order of the industrial commission is contrary to
uncontradicted evidence in the record that further chiropractic treatment was
necessary to treat her industrial injury. Plaintiff further contends the
commission improperly relied on the opinion of a nonchiropractic physician and
on judicial notice of matters outside the record.

[*1118] The material facts of this matter are not in dispute. The only
testimony offered at the hearing was that of Fesler and Dr. Kesler. Fesler
testified that it was Dr. Smith's medical opinion that her condition would not
necessarily resolve itself with time and that the need to continue with [**6]
his previously prescribed treatment might endure the rest of her life.

Dr. Kesler's undisputed testimony was that since Fesler's condition had not
resolved itself, further chiropractic treatment was indicated as a means of
ascertaining the degree of permanence associated with her injury:

I feel like the time since the accident and the time under care have not
adequately given her an opportunity to resolve her problems before a
determination of a permanent injury could be made. And so my conclusion is that
she certainly should be offered the opportunity to have conservative care.

Dr. Kesler was also of the opinion that Fesler's condition would continue to
improve with further chiropractic treatment.

It was, therefore, apparent that Fesler in fact continued to suffer from back
problems attributable to lumbosacral strain and that Dr. Smith and Dr. Kesler
simply differed in their views as to the method of treatment necessary to
resolve the problems.

The administrative law judge appropriately found that Fesler continued to
suffer as the result of the lumbosacral strain and that she might feel better
with further chiropractic treatment. Nevertheless, he denied further
chiropractic [**7] treatment by reason of his personal belief that such
treatment would be more palliative than curative and that time itself would
resolve her problems.

The conclusions reached by the administrative law judge, and adopted by the
Commission, are not supported by substantial evidence n3 and in fact are
contrary to the specific findings that Fesler continued to suffer back problems
attributable to the lumbosacral strain and that she "might" feel better with
further chiropractic treatment. Furthermore, they are contrary to the
700 P.2d 1116, *1118; 1985 Utah LEXIS 820, **7

uncontradicted, competent evidence of the need for continued chiropractic

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n3 Kincheloe v. Coca-Cola Bottling Co., Utah, 656 P.2d 440, 442-43 (1982).

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U.C.A., 1953, @ 35-1-81 (Supp. 1983) provides "in addition to the
compensation provided for in this title the employer or the insurance carrier
shall also be required to pay such reasonable sum for medical, nurse and
hospital services . . . . as may be necessary to treat the patient as in the
judgment of the industrial commission [**8] may be just." Thus, under the facts
of this case, Fesler was reasonably entitled to receive benefits for further
treatment of her industrial injury, and the decision of the commission to the
contrary was arbitrary and capricious and in excess of its authority. n4

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n4 Id.

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We reverse and remand for the purpose of entering an order authorizing
further treatment in accordance with U.C.A., 1953, @ 35-1-81 and this opinion.

WE CONCUR: I. Daniel Stewart, Justice, Michael D. Zimmerman, Justice, Leonard
H. Russon, District Judge.

Howe, Justice, concurs in the result.

Durham, Justice, having disqualified herself, does not participate herein;
Russon, District Judge, sat.


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