Krause v. Indiana University

866 N.E.2d 846

Susan KRAUSE, Appellant-Plaintiff, v. INDIANA UNIVERSITY — PURDUE UNIVERSITY AT INDIANAPOLIS, Appellee-Defendant.

No. 93A02-0606-EX-488.

Court of Appeals of Indiana.

May 24, 2007.

Randal M. Klezmer, Klezmer & Associates, Scott M. Dillon, Scott M. Dillon, L.L.C., Indianapolis, IN, Attorneys for Appellant.

Kathleen K. Shortridge, Ann H. Stewart, Germaine Winnick Willett, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Susan Krause appeals the order of the Worker's Compensation Board ("the Board") as to its holding that Indiana University — Purdue University at Indianapolis (IUPUI) was not required to pay for Krause's medical treatment by and prescription drugs from unauthorized providers; and IUPUI cross-appeals the Board's order that it provide further medical care and treatment to Krause.¹

We reverse in part, affirm in part, and remand for further consideration.

ISSUES

Krause's Issue: Whether IUPUI illegally discontinued its provision of medical services to Krause in mid-1998.

IUPUI's Issue: Whether the Board erred when it ordered IUPUI to provide further medical care and treatment to Krause.

FACTS

Krause was hired by IUPUI in 1990 and worked as a bookkeeper in Parking Services. On June 14, 1991, Krause was moving a cylinder of change and injured her lower back. Krause's claim for worker's compensation was accepted by IUPUI.

Between May of 1992 and June of 1994, Krause underwent four lumbosacral surgeries for the work-related injury to her back. Her surgeon, Dr. Terry Trammel, referred Krause to Dr. Robert Gregori² for pain management treatment related to her injury. IUPUI paid for all the medical expenses associated with Krause's surgeries and for her care by Dr. Gregori. On July 24, 1995, Dr. Gregori gave Krause a 24% permanent partial impairment rating to the whole person.

In his pain management care of Krause for her low back pain, Dr. Gregori prescribed Vicodin. In September of 1993, Krause was taking 9 to 12 pills per day; but under Dr. Gregori's care, her Vicodin consumption was reduced to 2 or 3 pills per day. In 1994, she was taking from 3 to 5 pills per day. In January of 1995, Dr Gregori prescribed "four Vicodin per day." (Ex. C., p. 124). In January of 1996, Krause reported to Dr. Gregori "that the Vicodin d[id] not help as much"; he suggested "discontinuing [the Vicodin] and trying Ultram," gave her a sample of the latter, and instructed her to continue the Vicodin "if that is ineffective." Id. at 128.

In May of 1996, Krause phoned Dr. Gregori's office and asked for additional Vicodin; Krause was advised that she had been provided with written prescriptions to last until August of 1996. On May 24, 1996, Dr. Gregori wrote to Krause advising that he would "no longer provide professional services to [her]" because she had "violated [their] pain medication contract." Id. at 136. On July 3, 1996, Jamie Pheifer — "Legal Assistant to [a named attorney] and Susan Krause's son" — wrote to Lynn Sinn, the worker's compensation claims adjuster for IUPUI, regarding "client" Krause. (App.109.) Pheifer indicated that the medication matter had been one of confusion, and he further requested that Krause "be assigned a new workman's [sic] compensation doctor . . . so her disability is not terminated." (App.109). Sinn contacted Dr. Gregori and asked that he reconsider his decision to terminate treatment of Krause. Dr. Gregori agreed to continue providing services to Krause, and he saw her on August 5, 1996. Krause signed "a pain contract," agreeing to take no more than 4 Vicodin per day. Id. at 138. When Dr. Gregori saw Krause on February 12, 1997, she accused him of lacking "compassion relative to her pain complaints with the primary intention of her discussion being request for increasing her narcotics." Id. at 142. Dr. Gregori recorded that Krause "continue[d] to be seeking increasing doses of narcotics" despite doing "fairly well on her scheduled Vicodin" four times a day. Id.

When Krause saw Dr. Gregori on August 4, 1997, she reported "getting along relatively well" on "her scheduled Vicodin four times a day." Id. at 145. On January 28, 1998, she reported her pain as "fairly stable." Id. at 146. However, six months later, on June 10, 1998, Krause reported that the Vicodin was "less effective than it had been." Id. at 147. Dr. Gregori "suggested possibly alternating the Vicodin" with Darvocet and gave her a prescription for Darvocet. Id.

On June 26, 1998, Krause called Sinn and advised that she "c[ouldn't] take it with Dr. Gregori any more"; they did "not see eye to eye"; and she "d[idn't] want him to be [her] doctor." (App.118). On June 29, 1998, Krause called Sinn and advised that she could not "get along" with Dr. Gregori and "need[ed] to be referred to another doctor." (App.119).

Sinn wrote to Krause on June 29, 1998, and explained that Dr. Gregori was her "attending physician for [her] Worker's Compensation claim," that she "need[ed] to discuss medication issues with Dr. Gregori or [her] family physician," and that IUPUI would "not cover the cost of the visit to [her] family physician." (Ex. A, p. 63). Sinn also inquired on June 29, 1998, whether Krause had "legal counsel representing [her] on the Worker's Compensation issue," and Krause's written response was that she had "several legal counsels [sic]." Id. at 65. On July 8, 1998, Krause wrote to Sinn, stating that she "realized" that the "worker's compensation office recognize[d] Dr. Gregori as [her] attending physician"; she further stated that the Vicodin dosage was no longer easing her pain, and she believed she "require[d] a higher dosage." (App.120, 121). Krause wrote that she had "no faith and trust" in Dr. Gregori and "request[ed] a change in doctor[ ]." Id. at 121. On July 30, 1998, "per [her] legal council [sic]," Krause wrote to inform Sinn that she had an appointment on August 13th with Dr. Dennis Wagner at the Indiana University Pain Clinic. Id. at 122. Thereafter, Krause was treated by Dr. Wagner as well as family physicians Dr. Richard Kiovsky and Dr. Clayton Atkins; none of these physicians were authorized by IUPUI to treat Krause for her low back pain.

Based on Krause's work-related injury, IUPUI was to pay Krause 500 weeks of disability benefits. Further, based upon the date of the injury, her average weekly wage, and the 24% permanent partial impairment rating, Krause received a permanent partial impairment settlement of $14,400.00, which was paid to her on April 16, 2002. On May 23, 2002, a claim status report informed Krause that her 500 weeks of worker's compensation benefits would soon be fully paid and that she should inquire about possible benefits from the Second Injury Fund.

On July 3, 2002, Krause filed an application for adjustment of claim, seeking additional compensation due to the work place injury suffered on June 14, 1991. On August 5, 2002, the final disability payment to Krause was issued. On that same day, August 5, 2002, Krause filed a petition for entry into the Second Injury Fund. On August 20, 2002, an agreement between Krause and IUPUI provided for additional weeks of compensation based upon her average weekly wage and percentage of impairment. In an order dated September 24, 2002, the Board found that Krause was still permanently totally disabled and confirmed the additional compensation from the Second Injury Fund.

On April 14, 2003, Krause filed a motion to reinstate application for review, seeking resolution by the Board of unpaid medical expense issues. On December 1, 2005, an evidentiary hearing was held by the Board's Single Hearing Member G. Terrence Corriden ("Member") to consider several issues, two of which are argued on appeal: whether IUPUI should pay for Krause's treatment by Drs. Wagner, Kiovsky, and Atkins, and whether the Board should exercise its discretion to order that IUPUI provide a treating physician and ongoing services and supplies for Krause's ongoing complaints. Evidence of the above-recounted facts was introduced, including the records of Krause's treatment by Drs. Wagner, Kiovsky, and Atkins. The records reflect that all three doctors prescribed pain medications other than Vicodin for Krause, and that Dr. Wagner believed spinal cord stimulation would be "the best avenue to pursue in attempting to treat her pain." (App.131).

On January 31, 2006, the single Member issued his order, which included the following findings of fact:

• . . . the medical treatment of Dr. Gregori as provided by [IUPUI] was reasonable.

• . . . the medication of [Vicodin] prescribed by Dr. Gregori was presumptively reasonable medical treatment for [Krause]'s medical condition, especially in light of the fact that the record is void of any medical opinion or conclusion to the contrary, combined with the fact that the only complaints came from [Krause] who was seeking a wider assortment of medication in terms of types and amounts from her self-prescribed quest for additional narcotics.

• . . . [Krause] was not entitled to seek medical treatment of her choice because she unilaterally terminated her medical treatment with Dr. Gregori without any basis to do so.

• . . . [Krause]'s request for further medical treatment fails because there is no reasonable medical evidence upon which the Board may rely to find that further medical treatment can limit or reduce [Krause]'s present permanent partial impairment or her level of functioning.

(App.60-61). The single Member's order concluded that IUPUI was "not obligated to provide further medical treatment to [Krause] or to pay for any medical treatment received by [Krause] after the services provided by Dr. Gregori." Id.

Krause sought review by the full Board. The Board heard the matter on May 9, 2006. On May 24, 2006, the Board issued its order, which adopted verbatim the four findings above. However, the Board did not adopt the single Member's finding as to future medical...