handiwheelvan

2005-11-08T15:36:00.000-08:00

disabled transportation grants

Many Americans suffer from a physical disability that requires
frequent access to restroom facilities. These physical disabilities
include ulcers, a nervous stomach, enlarged prostate, plus various
other kidney, bladder and internal disorders. In addition, most
Americans will temporarily have a similar need from time to time
because of flu, diarrhea or a stressful situation. Some of the major
problem areas are as follows:

2005-11-08T09:36:00.000-08:00

vehicles for handicap person

However, all of the implementation guidelines I have seen to date
appear to be directed solely towards Americans in wheelchairs. This
may
well be the discrimination the ADA was expected to eliminate since it
ignores other Americans who are denied both access and mobility
because of other physical handicaps. In particular, I refer to those
Americans who have been denied both access and mobility because
of a physical handicap that requires frequent access to restroom
facilities.

2005-11-06T09:36:00.000-08:00

roll x wheel chair lifts

�49 The claimant also has not provided evidence showing that he
cannot arrange for other transportation when needed. Indeed, he has
never contacted his claims adjuster to request transportation. He
chose instead to demand a van.

2005-11-05T15:36:00.000-08:00

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�46 In this case, the claimant already has a means of transportation
available to him and is able to use it. He and his wife own a car. He is
able to transfer into and out of the car and to take his portable
wheelchair with him. Certainly, a handicap accessible van would
make the transfer more convenient, but it would do nothing to
alleviate his need for a driver.

2005-11-05T09:38:00.000-08:00

wheelchair vans in california

�45 Medical necessity also encompasses a requirement that the
treatment be reasonable. In the context of transportation, a Chevy
may serve the same purpose at a much lower cost than a Rolls
Royce. I find nothing in the statutes which require a Rolls Royce
where the Chevy(1) would be adequate.

2005-11-04T15:36:00.000-08:00

used van with wheelchair lift

�42 However, there are obstacles even under the primary medical
services rule. First, as already noted, the claimant must prove that a
van is necessary for reasons other than transportation to and from
medical appointments. Second, he must demonstrate that the van is
necessary for him to "sustain" MMI. Third, he must show it is in fact
medically necessary. He has satisfied none of these requirements.

2005-11-03T15:36:00.000-08:00

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�38 Assuming that a van constitutes a "medical appliance," the
claimant's request in this case faces several, insurmountable obstacles.
�39 The first obstacle is the clear language of section 39-71-704(1)
(d), MCA (1997). As discussed above, that subsection specifically
speaks to payment for travel to medical appointments, providing that
the insurer is not liable for such travel except where it schedules the
appointment. Interpreting either the primary or secondary medical
services provision as requiring payment for a van based on the need
to travel to and from medical appointments would derogate the plain
language of section 39-71-704(1)(d), MCA, and is contrary to two
principles of statutory interpretation.

2005-11-02T15:36:00.000-08:00

wheelchair accessibility vans

Primary and secondary medical services are defined in section
39-71-116, MCA (1997), as follows:
(26) "Primary medical services" means treatment prescribed by a
treating physician, for conditions resulting from the injury, necessary
for achieving medical stability.

2005-11-01T03:45:00.000-08:00

handicap ceiling lifts

�36 In examining Montana's workers' compensation laws, I first note
that there is no provision authorizing or requiring an insurer to furnish
the claimant with a vehicle or even with transportation to and from
medical appointments. Indeed, Montana provisions at the time of the
claimant's injury specifically provide that insurers are not liable for a
claimant's transportation to and from medical appointments except for
medical appointments requested by the insurer. Section
39-71-704(1)(d), MCA (1997), provides:

2005-10-31T09:36:00.000-08:00

wheelchair vans & tampa

While I have not counted decisions, it appears that the number of
decisions denying van requests approximately equals the number of
decisions granting requests. The decisions typically turn on the
particular state statutes and the courts' interpretation of those statutes.
Some courts have held that vans are compensable under state statutes
which provide for purchase of medical apparatus or medical
transportation, while other courts have held "either that a personal
vehicle was a personal expense that was not intended to be covered
under the compensation statute, or that the language of the statute did
not permit reimbursement for equipment that did not contribute to
treating an injury or illness.

2005-10-27T21:36:00.000-07:00

home wheelchair lifts

�21 The claimant's present transportation outside of his home is by
wheelchair and by car. In good weather he drives the wheelchair on
and across Livingston streets. A surveillance video (Ex. 4) shows him
going to and from a video store and a supermarket.

2005-10-27T15:36:00.000-07:00

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�18 The claimant is not able to drive a van or any other vehicle.
(Oakley Dep. at 20.)
�19 Dr. Oakley did not address any alternatives to the purchase of a
handicap accessible van.
�20 The claimant has demanded that the State Fund buy him a
handicap accessible van. It has refused and this action ensued.

2005-10-27T09:37:00.000-07:00

wheel chair tilt lift carrier

�17 Dr. Oakley wrote a prescription for a handicapped accessible
van. The prescription is on a prescription pad and is found at Exhibit
1 at page 27. It was written on July 30, 2002, and states, "Rx
Handicap accessible van." In his deposition, Dr. Oakley justified his
prescription on the claimant's need for physical therapy in Bozeman
and for follow-up visits in Billings every one to three months. (Oakley
Dep. at 19, 25-26.) Dr. Oakley also testified it would be helpful for
the claimant to obtain psychiatric counseling, however, such
counseling is not readily available due to a shortage of psychiatrists in
Montana. (Id. at 15.) Finally, he testified that a van would enable the
claimant to get out more and thereby improve his mental health. (Id. at
26.)

2005-10-27T03:36:00.000-07:00

hong kong wheelchair lifts

�15 The claimant's 2003 compression fracture is due to bone density
loss, which in turn is due to his immobility. Dr. Oakley recommends
physical therapy three times a week to minimize bone density loss.
(Id. at 24.) He testified that in-home therapy is inadequate because of
the type of exercise equipment needed. The necessary equipment is
not available in Livingston where the claimant resides. The nearest
appropriate physical therapy facility is in Bozeman.
�16 Dr. Oakley also testified as to his need to see the claimant every
one to three months to monitor his condition. (Id. at 19.)

2005-10-26T21:36:00.000-07:00

residential wheelchair lifts

�14 Dr. Oakley testified by deposition. He testified that the claimant
reached maximum medical improvement (MMI) in late 2002 or early
2003 and is permanently totally disabled from performing gainful
employment. (Id. at 17, 21.) Even though the claimant suffered a
vertebral compression fracture in the summer of 2003, that fracture
did not change his opinion. He testified that the claimant was still at
MMI and there is no curative treatment on the horizon. (Id. at
22-23.)

2005-10-26T15:36:00.000-07:00

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�12 As a result of his CRPS, the claimant is now confined to a
wheelchair although he is able to stand to move to and from his
wheelchair. (Trial Test.; Oakley Dep. at 5.)
�13 Dr. John C. Oakley, a board certified specialist in neurosurgery
and pain management, has been treating the claimant since 1999.
(Oakley Dep. at 4, 6.) He implanted both spinal cord stimulators.

2005-10-25T03:36:00.000-07:00

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�2 Exhibits: Exhibits 1 and 2 were admitted without objection. The
respondent objected to Exhibits 3 and 4 on relevancy grounds.
Exhibit 4 is a surveillance tape commissioned by the respondent.
Exhibit 3 is the investigator's notes of his surveillance. At the beginning
of the trial, the Court reserved ruling on the objections and asked Mr.
Angel to reoffer the exhibits if he deemed them helpful. He did so at
the end of trial but I did not rule on their admissibility at that time.
After further considering the matter, I am admitting and considering
the exhibits as relevant.

2005-10-24T09:37:00.000-07:00

van wheelchair lifts

Constitutions, Statutes, Rules, and Regulations: Montana Code
Annotated: 39-71-704(1)(d), MCA (1997). Under the 1997 version
of the Montana Workers' compensation Act, an insurer is not
required to provide a claimant with a handicap accessible van to
enable him to go to and from medical appointments. � 39-71-704(1)
(d), MCA (1997).

2005-10-23T15:36:00.000-07:00

transportation resources for disabled in virginia

(b) In addition to the penalty provided in subsection (a) of this
section, a person, firm, association, corporation, or other
organization, or the agent of a person, firm, association, corporation,
or other organization who violates the provisions of section 121.003
of this chapter is deemed to have deprived a handicapped person of
his or her civil liberties. The handicapped person deprived of his or
her civil liberties may maintain a cause of action for damages in a
court of competent jurisdiction, and there is a conclusive presumption
of damages in the amount of at least $100 to the handicapped person.

2005-10-22T21:36:00.000-07:00

handicapped vans for sale

(d) The discrimination prohibited by this section includes
discrimination through an open and obvious refusal to allow a
handicapped person to use or be admitted to any public facility, as
well as discrimination based on a ruse or subterfuge calculated to
prevent or discourage a handicapped person from using or being
admitted to a public facility. Regulations relating to the use of public
facilities by any designated class of persons from the general public
may not prohibit the use of particular public facilities by handicapped
persons who, except for their handicaps or use of support dogs or
other devices for assistance in travel, would fall within the designated
class. Lists containing the names of persons who desire to use
particular public facilities may not be composed or manipulated so as
to deny a handicapped person a fair and equal opportunity to use or
be admitted to any public facility. (Emphasis added).

2005-10-22T15:37:00.000-07:00

guam + van + wheelchair lift

(c) No person who is physically handicapped may be denied
admittance to any public facility in the state because of the
handicapped person's use of a white cane, support dog, wheelchair,
crutches, or other device of assistance in mobility, or because the
person is handicapped.

2005-10-22T09:36:00.000-07:00

used wheelchair vans

(b) No common carrier, airplane, railroad train, motor bus, streetcar,
boat, or other public conveyance or mode of transportation operating
within the state may refuse to accept as a passenger a person who is
physically handicapped solely because of the person's handicap, nor
may a handicapped person be required to pay an additional fare
because of his or her use of a support dog, wheelchair, crutches, or
other device used to assist the handicapped person in travel.

2005-10-22T03:36:00.000-07:00

handicap equipped vans

(a) Subject only to limitations and conditions established by law and
applicable alike to all persons, persons who are physically
handicapped have the same right as the able-bodied to the full use
and enjoyment of any public facility in the state.

2005-10-21T21:36:00.000-07:00

van transfer handicap seat

Your term "disabled persons" corresponds with the section 121.002
definition of "handicapped persons."
To ensure that the above-stated public policy is given effect, the
legislature prohibited discrimination against a physically handicapped
person because of the person's handicap. Section 121.003 of the
Human Resources Code provides, in pertinent part:

2005-10-21T15:36:00.000-07:00

michigan handicap vans

(4) 'Handicapped person' means a person who has a mental or
physical handicap, including mental retardation, hardness of hearing,
deafness, speech impairment, visual handicap, being crippled, or any
other health impairment which requires special ambulatory devices or
services. (Emphasis added).

2005-10-21T09:36:00.000-07:00

wheelchair van lift

Relevant definitions are found in section 121.002:
(3) 'Public facilities' includes streets, highways, sidewalks, walkways,
all common carriers, airplanes, motor vehicles, railroad trains, motor
buses, streetcars, boats, or any other public conveyances or modes of
transportation, hotels, motels, or other places of lodging, public
buildings maintained by any unit or subdivision of government,
buildings to which the general public is invited, college dormitories and
other educational facilities, restaurants or other places where food is
offered for sale to the public, and all other places of public
accommodation, amusement, convenience, or resort to which the
general public or any classification of persons from the general public
is regularly, normally, or customarily invited.

2005-10-21T03:36:00.000-07:00

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The state's policy regarding participation by the handicapped in social
and economic activities is codified in chapter 121 of the Human
Resources Code. Section 121.001 of the code provides:
The policy of the state is to encourage and enable physically
handicapped persons to participate fully in the social and economic
life of the state, to achieve maximum personal independence, to
become gainfully employed, and to otherwise fully enjoy and use all
public facilities available within the state.

2005-10-20T21:36:00.000-07:00

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As Commissioner of the Texas Rehabilitation Commission, you
request an Attorney General Opinion on whether the Human
Resources Code provides to all disabled persons the right of access
on transportation supported by public funds. In your request, you
define "transportation" to include buses, street cars, trolleys, light rail,
airlines, vehicles provided for governmental workers, and any other
mode of transportation supported with public funds.

2005-10-20T15:36:00.000-07:00

wheelchair accessible vans

Going back to my original request, I am very much afraid that we
have been left out of the ADA. I would appreciate information on
time schedules for implementation procedures for handicapped
Americans other than wheelchairusers.

2005-10-20T09:36:00.000-07:00

used handicapped vans

Incidentally, I might mention that there are some organizations and
companies that have already made some effort to improve this
situation. For example, the Cracker Barrel restaurant chain has
several locations with specific parking allocated to RV's and similar
larger vehicles. Most of the Flying J service stations have special
fueling islands for RV-type vehiclesand even offer dump stations for
our toilets.

2005-10-20T03:36:00.000-07:00

threshold wheel chair ramps

Although I have not had a serious problem, there are complaints
aboutweight restrictions and residential parking restrictions that
permitautomobiles but discriminate against RVs and converted
coaches. There are times when I feel that we need special
license plates, justlike the wheelchair people. Admittedly, it might
be a little tacky to use atoilet symbol in place of the wheelchair
symbol on the license plate, but I presume that another
appropriate symbol or letter could be found.

2005-10-19T21:36:00.000-07:00

handicap accessible van

In many places, our converted coaches and RV's have parking
problems. Where wheelchairs have problems because buildings
are designed for the ambulatory, we have problems because
parking lots are designed forautomobiles. We need larger parking
spaces plus curves and turns designed for largervehicles that have
a larger turning radius. Unlike the wheelchair people, we do not
require premium space in the front and will settle for space along the
far edges of the parking lot.

2005-10-19T15:36:00.000-07:00

hydraulic vertical wheelchair lifts

Noteworthy is the fact that Illinois and Ohio allow automobiles to
travel at 65 miles per hour on the interstates but Illinois restricts
RV's to 55 miles per hour and Ohio restricts non-commercial buses
to 55 miles per hour. Clearly a discrimination against private vehicles
equipped with toilets.

2005-10-18T21:36:00.000-07:00

handicapped vans

A similar situation to Dallas exists on interstate routes through
many major cities because rest areas are almost never located
within major cities or on city bypass routes. One location that
comes particularly to mind is Interstate 75 through Atlanta since
rest areas in both directions are located quite some distance from
the city.

2005-10-18T15:36:00.000-07:00

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The next worst area I am aware of is on Interstate 30 on the east
side of Dallas, Texas. Any route through Dallas (such as from or
to Fort Worth or San Antonio) involving this segment of Interstate
30 may stretch out to two hours of driving without a rest area.
And, the situation gets worse if you are caught in rush hour traffic
getting through Dallas.

2005-10-18T09:36:00.000-07:00

handicap van conversions

The single biggest problem area I have found is a section of
interstate highway that I use regularly. I enter Interstate 39 just
east of Mendota,
Illinois at U.S. 34. From here I drive south to Bloomington, Illinois
And then east on Interstate 74 to the Indiana state line. There is no
rest area located south and east-bound on this route - a driving
distance of over three hours. West and northbound on this route
there is one rest area just west of Danville, which still leaves a driving
distance of approximately three hours without a rest area.

2005-10-18T03:36:00.000-07:00

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Like many people with a similar disability, I have long since given up
counting the number of times I have been unable to use public
municipal transportation because of the lack of restroom facilities. It
should be mentioned that providing restroom facilities at rapid transit
stations does not solve the problem. I once had a serious problem on
the rapid transit in Miami when I was unable to locate a transit
employee with a key to unlock the facilities at a station.
People with this type of disability find it difficult to use our
federal interstate highway system because of inadequate restroom
facilities.

2005-10-17T21:36:00.000-07:00

handicap accessible vans

In addition, there are
many smaller commercial airplanes with no restrooms at all.One of the
major problems in regard to access and mobility is city transit since
most city buses and rapid transit cars do not have restroom facilities.
While interstate buses and railroad trains have provided restroom
facilities for years, the city transit people have discriminated
against people who require these facilities.

2005-10-17T15:36:00.000-07:00

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2. Public Transportation and Interstate Highways
Most rail transportation and interstate buses are equipped with
adequate restroom facilities. Commercial aviation is borderline at
best. Most airports provide adequate restroom facilities. However,
once on board the aircraft, passengers are excluded from the
restrooms for prolonged periods during takeoff and landing.

2005-10-17T09:37:00.000-07:00

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1. Public Buildings and Shopping
While most major public buildings, shopping centers and larger
department stores provide public toilets, there are other areas that do
not, or have inadequate signage pointing to such facilities. In
particular, supermarkets are notoriously bad about providing public
toilets. One of the worst situations is a tourist or shopping area
consisting primarily of smaller shops, stores or restaurants which feel
that each is too small to provide public restroom facilities. For
example, it is very difficult to find public restrooms in San
Francisco's Chinatown and in the French Quarter in New Orleans.
The downtown area in smaller communities frequently provides similar
problems.

2005-10-17T03:36:00.000-07:00

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2005-10-16T21:36:00.000-07:00

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2005-10-16T15:36:00.000-07:00

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It is my understanding that the basic intent of the Americans with
Disabilities Act was to end discrimination and to provide both access
and mobility that had been denied to Americans with physical
handicaps.

2005-10-16T09:36:00.000-07:00

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I am writing to request information on when implementation
procedures will be issued under the Americans with Disabilities Act
(ADA) for handicapped Americans other than wheelchair users.

2005-10-16T03:38:00.000-07:00

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2005-10-15T21:36:00.000-07:00

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JUDGMENT
�53 Under the facts presented in this case, the claimant is not entitled
to have the State Fund furnish him with a handicap accessible van. His
petition is therefore dismissed. Dismissal is without prejudice since
future circumstances could conceivably justify a renewed request.

2005-10-15T15:36:00.000-07:00

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�52 Finally, I note the claimant's motion to reconsider my order
quashing his subpoena for records of the Montana Health Systems
(MHS). I quashed the subpoena because the sought after documents
were not identified in timely fashion and the subpoena was served at
the 11th hour. The failure to identify the documents in a timely fashion
is conclusive. Moreover, the documents the claimant seeks would not
affect my decision in this case. Whether or not the MHS thought the
van was medically necessary, that determination would be entitled to
no more deference than Dr. Oakley's prescription. Even without the
subpoenaed records, the claimant had a full opportunity to provide a
factual basis for his request.

2005-10-15T09:37:00.000-07:00

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�51 The claimant has asked for penalties and attorney fees. They may
be awarded only if the claimant prevails, and he has not. Moreover,
they require a finding that the insurer unreasonably denied his request
for a van. � 39-71-611, MCA (1987-2003), � 39-71-2907, MCA
(1991-2003). Even if I am wrong in denying the claimant a van, I
have found that the insurer acted reasonably in denying the request.

2005-10-15T03:37:00.000-07:00

handicap van

�50 Thus, even if the medical benefits statutes would allow the Court
to order payment for a handicap accessible van, a handicap
accessible van appears to be a Rolls Royce and the Court declines to
order the State Fund to pay for one.

2005-10-14T21:36:00.000-07:00

handicap vans

2005-10-14T15:36:00.000-07:00

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�48 The claimant also testified that during winter months, the public
van will not go up his road. He has provided no further details as to
how often that occurs. Anyone living in Montana knows that snow
and bad roads are ordinarily a sporadic occurrence. I am
unpersuaded that the public van is unavailable during the entire winter,
or even for significant periods of time.

2005-10-14T09:36:00.000-07:00

�47 Moreover, the claimant has not shown that alternative
transportation is not available. There is a publically operated handicap
accessible van available to him. The fact that it is inconvenient
because it operates on a schedule is a Rolls Royce argument and is
unavailing.

2005-10-14T03:36:00.000-07:00

2005-10-13T21:36:00.000-07:00

2005-10-13T15:36:00.000-07:00

�44 Other than the claimant's need for transportation to and from
medical appointments, the only justification Dr. Oakley provided for a
van was for the claimant's convenience and to improve his general
mental health by allowing him to leave home more often. The fact that
Dr. Oakley wrote a prescription and recommended a van is not
conclusive as to medical necessity. If it were then insurers could be
required to pay for cruises and a host of other services and activities
which a physician "prescribes" to generally improve a claimant's
quality of life and general mental health. A prescription is not
sufficient. The physician must show that the prescription is for genuine
and necessary medical treatment.

2005-10-13T09:36:00.000-07:00

�43 In his testimony, Dr. Oakley did not testify that a van is necessary
for the claimant to maintain his MMI status. Indeed, he did not
indicate how the lack of a van would cause the claimant's status to
deteriorate.

2005-10-13T03:36:00.000-07:00

2005-10-12T21:36:00.000-07:00

�41 In Hiett v. Missoula County Public Schools, 2003 MT 312, 317
Mont. 95, 75 P.3d 341, the Montana Supreme Court construed
"primary medical services" as also encompassing medical treatment
necessary to "sustain" maximum medical improvement. Thus, if a van
were to be shown as necessary to sustain MMI, the claimant would
not need to prove that it would enable him to return to work as
required in the secondary medical services provisions.

2005-10-12T15:36:00.000-07:00

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�40 A second obstacle is the limitation on secondary medical
services. Secondary medical services are those medical services "not
medically necessary for medical stability." � 39-71-116(30)(a), MCA
(1997) (quoted in full in � 37). The claimant has reached MMI and is
permanently totally disabled, therefore, further medical services come
under the secondary medical services provisions in section
39-71-704(1)(b), MCA (1997). Under those provisions, the insurer
is required to furnish the requested services "only upon a clear
demonstration of cost-effectiveness of the services in returning the
injured worker to actual employment." The claimant in this case has
been determined to be permanently totally disabled and has presented
no evidence which would demonstrate he could return to employment
if provided with a handicap accessible van. A van therefore does not
meet the requirements for secondary medical services.

2005-10-12T09:36:00.000-07:00

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The first principle of statutory interpretation which such construction
would violate is the "familiar rule of construction . . . that when a
general and particular provision of statute are inconsistent, the
particular provision will prevail." State ex rel. Needham v. Justice
Court, 119 Mont. 89, 97, 171 P.2d 351, 355 (1946); accord,
Montana Dept. of Revenue v. Kaiser Cement Corp., 245 Mont. 502,
507, 803 P.2d 1061, 1064 (1990). The second rule of statutory
interpretation that such interpretation would violate is the "rule of
statutory construction that the express mention of one matter excludes
other similar matters not mentioned." Helena Val. Irr. Dist. v. State
Highway Commission, 150 Mont. 192, 198, 433 P.2d 791, 794
(1967). I therefore hold that the purchase of a van cannot be justified
as either primary or secondary medical treatment based on the
claimant's need to travel to and from medical appointments. There
must be some other medical justification.

2005-10-12T03:36:00.000-07:00

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2005-10-11T21:36:00.000-07:00

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(ii) Disability does not mean a purely medical condition.
"Treatment" is not defined in subsection (26) in connection with
primary medical services, however, the definition of secondary
medical services found in subsection (30), shows that treatment
encompasses medically necessary "appliances."

2005-10-11T15:37:00.000-07:00

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(b)(i) As used in this subsection (30), "disability" means a condition in
which a worker's ability to engage in gainful employment is diminished
as a result of physical restrictions resulting from an injury. The
restrictions may be combined with factors, such as the worker's age,
education, work history, and other factors that affect the worker's
ability to engage in gainful employment.

2005-10-11T09:36:00.000-07:00

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(30)(a)"Secondary medical services" means those medical services or
appliances that are considered not medically necessary for medical
stability. The services and appliances include but are not limited to
spas or hot tubs, work hardening, physical restoration programs and
other restoration programs designed to address disability and not
impairment, or equipment offered by individuals, clinics, groups,
hospitals, or rehabilitation facilities.

2005-10-11T03:36:00.000-07:00

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2005-10-10T21:36:00.000-07:00

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(a) After the happening of a compensable injury and subject to other
provisions of this chapter, the insurer shall furnish reasonable primary
medical services for conditions resulting from the injury for those
periods as the nature of the injury or the process of recovery requires.
(b) The insurer shall furnish secondary medical services only upon a
clear demonstration of cost-effectiveness of the services in returning
the injured worker to actual employment.

2005-10-10T15:36:00.000-07:00

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39-71-704. Payment of medical, hospital, and related services --
fee schedules and hospital rates -- fee limitation. (1) In addition to the
compensation provided under this chapter and as an additional benefit
separate and apart from compensation benefits actually provided, the
following must be furnished:

2005-10-10T09:36:00.000-07:00

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�37 The only other provisions under which the purchase of a van
might be authorized are the general provisions providing for payment
of necessary medical treatment. Those provisions, also found in
section 39-71-704, MCA (1997), are as follows:

2005-10-10T03:36:00.000-07:00

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No other exceptions are provided in the section and the Court is
prohibited from writing additional exceptions into the section. "In the
construction of a statute, the office of the judge is simply to ascertain
and declare what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been inserted." �
1-2-101, MCA. Under the section the insurer is not liable for travel
expenses except to appointments it requests. Purchase of a van for
travel to and from medical appointments stands on no better ground
than any other form of travel. Therefore, I conclude that the section
affirmatively excludes liability for a van based on the claimant's need
to travel to and from medical appointments.

2005-10-09T21:37:00.000-07:00

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(d) The insurer shall reimburse a worker for reasonable travel
expenses incurred in travel to a medical provider for treatment of an
injury only if the travel is incurred at the request of the insurer.
Reimbursement must be at the rates allowed for reimbursement of
travel by state employees. [Emphasis added.]

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�35 Ultimately, as can be seen by reading the summaries of cases in
the Annotation, the question of a claimant's entitlement to a handicap
accessible van is a matter of interpreting and applying each state's
unique law. I therefore address the claimant's request under
Montana's laws.

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Id. at � 4. Other courts have denied payment for vans based on a
lack of proof of medical need or upon a finding that alternative
transportation is available. Id. at � 6[b]. Still other courts have held
that the insurer is liable only for the special equipment necessary to
convert a van for handicap use and not for the cost of the vehicle
itself. Id. at � 8.

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�34 The claimant is seeking an order directing the State Fund to buy
him a handicap accessible van. Before turning to the specific
provisions of Montana law which apply in this case, I first note that
there are no Montana cases on point and that other jurisdictions have
reached different results concerning handicap accessible vans. The
cases are summarized in Annot: Compensability of Specially
Equipped Van or Vehicle Under Workers' Compensation Statutes,
63 A.L.R. 5th 163.

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�33 The claimant bears the burden of proving by a preponderance of
the evidence that he is entitled to the benefits he seeks. Ricks v.
Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973);
Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598
P.2d 1099 (1979).

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CONCLUSIONS OF LAW
�32 This case is governed by the1997 version of the Montana
Workers' Compensation Act since that was the law in effect at the
time of the claimant's industrial accident. Buckman v. Montana
Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382
(1986).

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Reasonableness of Insurer's Denial
�31 Whether or not I am correct in my determination that the claimant
is not entitled to a handicap accessible van, the State Fund's denial of
the request was reasonable. There are ample legal arguments against
the request. Moreover, the claimant never asked the State Fund to
provide specific transportation; he simply demanded that it buy him a
van. Finally, his own evidence establishes sound factual reasons for
denying his request.

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�29 As to his need for a van to go to medical appointments, the
claimant has not shown that alternative means of transportation to
medical appointments are unavailable. Indeed, he gets out several
times a month in the car with his wife. Other than to demand the
purchase of a van, he has not contacted his claims adjuster to request
help with transportation to medical appointments.
�30 Nor has the claimant provided the Court with any specific van
proposal. He simply requests the Court to enter an open-ended order
directing the State Fund to buy him a van.

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�28 Dr. Oakley also indicated that a handicap accessible van would
allow him to get away from his house and improve his mental health.
That opinion is the weakest sort of support for buying a van.
Certainly, a handicap accessible van would provide more convenient
transportation for the claimant. The question in this case is not what
might generally improve the claimant's mental health and happiness,
but what is medically necessary.

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�27 The claimant also has a car and a portable wheelchair which he
uses for transportation. He is able to do standing transfers, which
means he is able to stand up and move from his wheelchair to a car
seat and vice-versa. He is unable to drive, so his wife must drive: that
would not change if he had a handicap accessible van. He has not
provided persuasive evidence that a van would make a difference in
his going to physical therapy in Bozeman or to Billings for doctors'
appointments. Whether by van or by his current car, he would need a
driver.

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�26 However, the claimant has alternative means of transportation.
Within Livingston, he can use a public handicap accessible van. While
the van may not be able to go up the road to the claimant's house in
bad winter weather, the claimant has failed to persuade me that the
public van is unavailable during significant periods of time or that its
unavailability prevents him from going out in Livingston for any
significant periods of time. The fact that he has to adhere to the time
schedule of the public van is unfortunate but it is not a compelling
argument for my ordering the State Fund to purchase a van. I am
unpersuaded that the public handicap accessible van does not provide
him with reasonable, accessible transportation within Livingston.

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�25 Initially, the claimant's wheelchair does not provide a satisfactory
mode of transportation to medical appointments in Bozeman or
Billings. Indeed, it does not provide a satisfactory mode of
transportation anywhere in bad weather, and Montana has its share of
bad weather.

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Factual Resolution
�24 There are significant legal questions concerning the liability of
insurers for handicap accessible vans, and I will address those
questions in the Conclusions of Law section of this decision. There
are also factual questions concerning the claimant's need for a van,
and those questions I address here as a part of my findings of fact.

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�23 Livingston has a public wheelchair accessible van. The claimant
testified that the van has a set schedule, making it inconvenient for him
to use it. He also testified that in winter weather, the van will not come
up the road to his house. There was no evidence presented as to how
often that occurs.

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�22 The claimant also owns a car and uses it to go out from his home.
He has a portable wheelchair he uses when he goes out. Since he
cannot drive, his wife loads the wheelchair into the car and drives the
car. The claimant testified that he goes out in the car six to seven times
a month just for "a drive" or to shop.

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�10 Subsequently the claimant developed Complex Regional Pain
Syndrome (CRPS), also known as Reflex Sympathetic Dystrophy
(RSD). (Uncontested Fact 4; Oakley Dep. at 5.) The condition
involves abnormal pain responses to normal non-painful stimulae.
(Oakley Dep. at 9.)
�11 The claimant's condition initially affected his arms and was treated
by the implantation of a spinal cord stimulator in his cervical area. (Id.
at 7-8; Uncontested Fact 4.) The condition thereafter progressed to
his legs and a spinal cord stimulator was implanted in his lumbar spine.
(Oakley Dep. at 7-8.)

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�8 The claimant was treated at the Emergency Room of Bozeman
Deaconess Hospital immediately following his injury. (Uncontested
Fact 2.) While the Court does not have the records of the treatment,
apparently the laceration was repaired at that time.
�9 The next day, May 4, 1999, the claimant developed "volar
compartment syndrome which was treated with a fasciotomy, arterial
repair and secondary closure." (Uncontested Fact 3.)

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FINDINGS OF FACT
�6 The claimant was injured on May 3, 1999, while working as a
glazier for Bozeman Glass. He suffered a laceration to the radial
artery of his right forearm. (Uncontested Fact 1.)
�7 At the time of his injury, Bozeman Glass was insured by the State
Fund. The State Fund accepted liability for his industrial injury.
(Uncontested Fact 5.)

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�4b Whether Randall Simms is entitled to costs, attorney fees and
penalty?
(Final Pretrial Order at 2.)
�5 Having considered the Final Pretrial Order, the testimony
presented at trial, the demeanor and credibility of the witnesses, the
deposition and exhibits, and the arguments of the parties, the Court
makes the following:

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�3 Witnesses and Deposition: Claimant, Shauna Foley, and Lucinda
Dixon testified at trial. In addition, the deposition of Dr. John C.
Oakey was submitted to the Court for its consideration.
�4 Issues Presented: The issues as set forth in the Final Pretrial Order
are:
�4a Whether, under the Workers' Compensation Act, Randall Simms
is entitled to a handicapped accessible motor vehicle?

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�1 The trial in this matter was held on December 17, 2003, in Helena,
Montana. Petitioner, Randall Simms (claimant), was present and
represented by Mr. Geoffrey C. Angel. Respondent, Montana State
Fund (State Fund), was represented by Mr. Thomas E. Martello.