Since 1992 and the publication of the decision in Grand Lodge Free & Accepted Masons v. Jones, 590 N.E.2d 653 (Ind.Ct. App. 1992), employers have struggled with the parameters of compensable ongoing palliative care once an employee reaches MMI from a work injury. The Court in the Grand Lodge case held that Grand Lodge must continue to pay for Susan Jones’s use of her TENS unit, even though her injury was quiescent and no further medical treatment was indicated, because her treating physician considered the ongoing use of the TENS unit in determining her PPI rating. The Court held that the employer’s financial obligation to provide the TENS unit “is to continue only so long as it is prescribed, not indefinitely.” Id. at 656.

Since the Grand Lodge case was published, employees and their attorneys have used that holding to argue the value of any Award or settlement must include the cost of “future ongoing palliative care” regardless of whether there is a specific recommendation for that care by a treating physician. Furthermore, since every physician views each patient differently, it is not unusual to have multiple inconsistent medical opinions as to the need for future medical treatment “to limit or reduce impairment.” We now have some clarification of the evidence needed to establish liability for future medical care, and the burden or producing that evidence, in the recently published decision of Reeves v. Citizens Financial Services, ___ N.E.2d ___ (Ind. Ct. App. 2012).

Mr. Reeves suffered a back injury in a motor vehicle accident in 2003 while working for Citizens Financial. Over the course of several years following the accident, Mr. Reeves was examined and treated by a number of physicians for his pain complaints – physicians authorized by the work comp carrier, personal physicians, and a Board appointed IME. Based on the lengthy summary of Mr. Reeves medical treatment by the Court of Appeals, it is evident that the doctors who examined Mr. Reeves varied in their recommendations and findings. None of the physicians recommended surgery, and all non-surgical treatment recommendations were authorized and provided. To the extent ongoing future palliative care was mentioned, it varied by physician. Furthermore, none of the treatment that was recommended and provided, including versions of what was alleged to be ongoing palliative care, improved Mr. Reeves’ symptoms or lessened his subjective complaints of pain.

Based on this evidence, both the original Hearing Member and the Full Board ruled that Mr. Reeves had a right to his PPI rating as a result of his injury but nothing more. On appeal, the Court of Appeals agreed, stating “Reeves has failed to specify what treatment he believes he needs. . . . Unlike Grand Lodge, the evidence in this case is conflicting as to whether palliative care – be it medicine, physical therapy, or some other measure – reduces the extent of the impairment.” Holding that Mr. Reeves had the burden of proving his need for palliative care and that he failed to carry that burden, the Court affirmed the Board’s decision unanimously.