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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: A 22-year-old laborer was guiding a 260 pound welded tubing being moved by a crane when the tubing slipped, struck his right arm on the biceps, then yanked his arm into extension. He suffered serious bruising, swelling, and pain throughout his arm. While most of the pain improved, claimant was left after several months with a subluxing ulnar nerve condition, which he testified caused numbness, tingling, and extreme pain on exertion. The insurer argued the condition, if it existed at all, was congenital and not caused by the accident. A petition was filed asking the Court to find the condition compensable and to order the insurer to pay an 8% impairment award rendered by one physician.
Held: The ulnar nerve condition was caused by the industrial accident and the insurer is liable for it. The insurer is also liable for an 8% impairment award.
¶1 The trial in this matter was held on July 1, 2002, in Billings, Montana. Petitioner, Michael Churchill (claimant), was present and represented by Mr. R. Russell Plath. Respondent, Zurich American Insurance Company (Zurich), was represented by Mr. Joe C. Maynard.
¶2 Exhibits: Exhibits 1 through 10 were admitted without objection. At the close of trial, the parties agreed it was not necessary for the Court to view the videotape offered as part of Exhibit 9.
¶3 Witness and Depositions: Claimant testified at trial. The parties submitted the depositions of claimant and Dr. Bill Shawn Rosen for the Court's consideration.
¶4 Issues Presented: The issues as set forth in the Pretrial Order are:
(Pretrial Order at 3.)
¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
¶6 Claimant is 22 years old. He is a high school graduate with work experience as a mechanic. He also worked in restaurants and as a laborer.
¶7 On March 26, 2001, claimant was injured while working as a laborer for Roscoe Steel & Culvert Company (Roscoe Steel) in Billings. (Ex. 10; Uncontested Fact 1.) Welded tubing, weighing 260 pounds, slipped from a crane and struck his right arm. (Uncontested Fact 1.) The tubing struck claimant's upper biceps. As the tubing continued falling, it forced his arm straight down and into extension. (Churchill Dep. at 4-5; Trial Test.)
¶8 At the time of the accident, Roscoe Steel was insured by Zurich. Zurich accepted liability for the injury and has paid medical and temporary total disability benefits, but it contests claimant's allegations that he is entitled to coverage and an impairment award with respect to an ulnar nerve condition. Therefore, the focus of the following findings of fact is on that dispute.
¶9 Immediately after the injury, claimant had "[p]ain at the back of the elbow and of the bicep[s] area." (Churchill Dep. at 5.) While he did not initially feel numbness or tingling down his arm, his arm was "painful from about six inches up from [above] the wrist to the upper bicep[s]." (Id.)
¶10 Later in the day of March 26th, claimant sought treatment at the Same Day Care Unit of the Deaconess Billings Clinic. (Ex. 1 at 75.) He was examined by Dr. Michael D. Monday and x-rayed. While finding "[n]o real bruising" and "[n]o swelling," Dr. Monday believed claimant's grip strength was impacted. (Id.) Claimant reported pain "around the elbow to supination and pronation" and "around the biceps." (Id.) X-rays were negative. (Id.)
¶11 By the next day claimant's biceps had swelled and he was experiencing some tingling in his fingers. He returned to the Billings Clinic on March 27, 2001, and was examined by Ronald K. Handlos (Handlos), a physician's assistant. (Ex. 1 at 73.) Handlos noted:
Pain is getting worse. He has some tingling in the 4th and 5th fingers and the swelling is quite significant over the biceps. There is some discoloration. This patient states he can flex and extend and rotate his shoulder but it hurts a great deal.
(Id., emphasis added.) The swelling was substantial:
(Id. at 73-74.) Handlos diagnosed sprain of the right shoulder and biceps "with possible tear of both long head and short head. Contusion of forearm and elbow." (Id.) He referred claimant to Dr. Steven Fischer, an orthopedist, who examined claimant the same day.
¶12 Upon examination of claimant, Dr. Fischer noted pain as well as some "mild ecchymosis [bruising](1)" and "tenderness in the antecubital fossa anteriorly." (Ex. 1 at 71.) He ordered an MRI. (Id. at 71-72.)
¶13 The MRI was done on March 29, 2001. At that time claimant was experiencing increased pain, including elbow pain. (Trial Test.) No biceps tearing was disclosed by the MRI, however, it did show "quite a bit of edema and hemorrhage within the muscle of the biceps . . . ." (Ex. 1 at 70.) Dr. Fischer prescribed anti-inflammatories and physical therapy. (Id.)
¶14 Claimant began physical therapy on April 9, 2001. Initial treatment consisted of ultrasound as well as massage and stretching exercises. (Id.)
¶15 At the time he began physical therapy, claimant did not notice numbness or tingling in his arm or any popping out of his ulnar nerve. (Churchill Dep. at 9.) However, his arm was still painful and swollen.
¶16 Claimant participated in physical therapy two to three times a week. During that therapy he experienced elbow pain. On April 11, the therapist noted:
(Ex. 1 at 34, emphasis added.) In subsequent physical therapy sessions, claimant continued to complain of pain in the medial aspect of his right elbow, specifically in the area of his medial condyle(2).
¶17 On April 16, 2001, the therapist recorded claimant "continues to have medial epicondyle pain." (Ex. 1 at 33, emphasis added.) Physical therapy reports of April 23, 25, and 27, 2001, recorded continuing pain at the right medial epicondyle. (Id. at 28-30.)
¶18 On May 15, 2001, claimant was reexamined by Handlos. At that time claimant reported continued "pain on flexion and extension of the elbow, with short head of the biceps that is quite excruciating for him. Even passive flexion and extension are painful." (Id. at 60.) Handlos restricted him to lifting 5 to10 pounds with the right arm and avoidance of repetitive twisting of the right elbow. (Id.)
¶19 Claimant's arm pain and range of motion continued to improve. In June he still had some pain, particularly at full extension of his arm, but felt he had full range of motion. (Churchill Dep. at 12-13.) He did not recall experiencing numbness or tingling at that time but had begun to notice popping or cracking "[i]nside the elbow joint towards the back of the elbow." (Id.12-14)
¶20 On June 12, 2001, claimant returned to work with lifting restrictions of 22 pounds total and 15 pounds for repeated lifting. (Ex. 1 at 59.) His work required him to hold down beams with his right arm. He worked ten hours. By the end of the shift, his pain had increased significantly and his arm felt swollen.
¶21 Claimant returned to work the following day, June 13th, but only worked five hours. He left work and went to see Handlos. Handlos devised an ACE wrap to hold the arm in place and released claimant back to work. (Id. at 55.) However, claimant returned to Handlos on June 14th. Handlos recorded that the "pain has really escalated once again, and he is very uncomfortable. (Id. at 54.) Following examination, he noted: "Very tender at the head of the radius, supination/pronation very uncomfortable, as well as flexion and extension. There is some crepitus in the area." (Id.) Handlos prescribed new medication and instructed claimant to return to Dr. Fischer. (Id.)
¶22 Claimant did not thereafter return to work with Roscoe Steel.
¶23 Claimant was next examined by Dr. Fischer on June 19th. Claimant's chief complaint was "pain in the right elbow." (Ex. 1 at 51, emphasis added.) Dr. Fischer noted weakness to resisted elbow flexion, but a full range of motion with no swelling. (Id.) He recommended claimant continue arm exercises for a six- week period. (Id.)
¶24 Claimant returned to Dr. Fischer again on July 31, 2001, still reporting continued elbow pain. Dr. Fischer noted the "patient has pain that is reproduced with full active extension of the elbow" but did not complain of "pain or numbness radiating down to the fingers." (Id. at 45.) The doctor was unable to diagnose claimant's condition and referred him to Dr. Richard Lewallen for a second opinion (Id. at 45-46.)
¶25 Claimant saw Dr. Lewallen on August 14, 2001. (Id. at 5.) In the history taken by the doctor, he recorded that claimant reported "2 episodes of numbness in the ulnar nerve distribution of his right elbow. This occurred after someone palpated the ulnar nerve fairly hard and another time when he hit a door with his elbow." (Id.) At deposition and trial, claimant said the first incident occurred when his girlfriend grabbed his arm at the area where the ulnar nerve passes through the elbow. (Churchill Dep. at 18.) He felt "[i]mmediate numbness [in] I guess the third and fourth digits on my right hand and the palm of my hand and through the bottom of my forearm, followed by a very warm burning sensation." (Id. at 18.) In the second incident, claimant hit his arm on a door. Claimant testified that neither incident involved a sharp blow to the elbow. (Id.)
¶26 Upon physical examination of claimant, Dr. Lewallen found full range of motion and good strength, however, claimant reported discomfort with resisted flexion, primarily over the anterior aspect of his elbow. (Ex. 1 at 5.) Dr. Lewallen also noted "a little tenderness along the posterior aspect of his elbow both along the lateral and medial aspects of the olecranon and some tenderness over the ulnar nerve medially." (Id. at 6.) He did not detect "any subluxation of the ulnar nerve with flexion-extension of the elbow." (Id.) He concluded that claimant would not benefit from further treatment and should undergo a work-hardening program, followed by a functional capacities evaluation (FCE). (Id.)
¶27 After reviewing Dr. Lewallen's evaluation, Dr. Fischer, who was claimant's treating physician, prescribed six weeks of work hardening. (Ex. 1 at 44.)
¶28 On August 30, 2001, claimant reported to the Billings Clinic for a work-hardening program supervised by Chad Miller (Miller), a physical therapist. During the first session, claimant reported arm pain of 5 on a scale of 1 to 10 and also "some numbness from his wrist to his pinky finger and ulnar nerve area." (Id. at 25.) Miller also noted: "He also has some point to the ulnar groove at the elbow. This is also tender to palpation." (Id.) Miller planned a program with "a lot of stretches, a lot of strengthening exercises for biceps, triceps, brachial radialis, and overall conditioning program." (Id. at 26.)
¶29 On the second day of work hardening, Miller recorded: "Patient's elbow is a little sore from overworking. No swelling, no edema. No joint effusion today. Minimal complaints. States he feels like he just worked it a little bit." (Id. at 22.) Miller wrote:
¶30 On September 4, 2001, Miller recorded:
(Id. at 21.)
¶31 On September 5th, claimant continued the work-hardening program, working out, according to Miller's note, "for a full 6 hours today." (Id. at 20.)
¶32 The September 6th physical therapy report states claimant fulfilled his six hours of work hardening. In the assessment section, Miller wrote: "Tolerated treatment well. Complains of some soreness. Also states that it hurts worse with the colder weather." (Id. 1 at 19.)(3)
¶33 The physical therapy record dated September 7, 2001, states claimant called in sick, complaining of "flu-like symptoms." (Ex. 1 at 18.) Claimant testified at trial that he woke up that day feeling light-headed and throwing up. Claimant also testified that he had been using his best efforts in the work-hardening program and that his elbow was very painful, feeling worse and worse. His testimony was credible.
¶34 Miller's physical therapy record for September 10, 2001, states:
(Id. at 17, bolding and underlining added.)
¶35 The physical therapist's comment about "When he is here" implies that claimant was not diligently attending the work-hardening program. The record to this point does not support the comment, rather it shows that claimant was sick one day and late on another by a half hour, and attended the program on September 10th even though still feeling ill. The therapist's comments as quoted previously, reflect claimant's full participation in the program.
¶36 In the same vein, I also note an earlier comment made the first day by the therapist. It states that claimant would be doing much of his program in the gym and that "we will try to keep a PT or tech down here to keep him closely monitored for his work-conditioning program for full participation." This comment suggests that from the get-go the therapist was suspicious of claimant and did not expect claimant to fully cooperate in the program. Whether this distrust is a universal attitude of the therapist or specific to this claimant based on other communications with the therapist is unknown. In either event the attitude is significant in evaluating what occurred subsequently and in evaluating the insurer's aggressive attack on the claimant's credibility.
¶37 Miller's physical therapy note for September 11, 2001, states:
(Id. at 16, emphasis added.) Miller's note from September 11th flies in the face of his own note from the prior day. On the 10th, Miller himself recorded that claimant "[s]till complains of being sick, that he is still sick today, that he doesn't feel like he should be here." (Id. at 17.)
¶38 Moreover, on September 11th, claimant went to see Dr. Monday on account of his flu-like symptoms. (Id. at 44.) He obtained a note from Dr. Monday verifying he had been sick for four days. (Id. at 43.)
¶39 That same day, September 11th, after visiting the doctor, claimant received a letter from claims adjuster Carolyn M. Villa (Villa). The letter, dated September 10, 2001, read:
(Ex. 6 at 2.) There is no evidence indicating that the insurer possessed information indicating claimant was not ill on September 7th or 11th, or that in fact he was not ill.
¶40 Claimant called Villa after receiving the letter. He told her he had a note from his doctor regarding his illness. Villa was not interested in the note.
¶41 Claimant reported to work hardening the next day, September 12th. Miller's note reads:
(Ex. 1 at 15, emphasis added.)
¶42 What happened to the six-week work-hardening program originally prescribed which was to have taken place prior to any FCE? Suddenly, after less than two weeks of the program, the therapist is setting up the FCE despite Dr. Fischer's prescription for six weeks of work hardening. Something smells, and the smell gets worse with the next letter from the claims adjuster.
¶43 On September 12th, Villa wrote claimant a second letter, this time terminating his benefits: The letter is as follows:
(Ex. 6 at 3.)
¶44 There is no explanation in the record for Villa's decision to disbelieve claimant about his illness. There is nothing to contradict claimant's testimony that he had a doctor's excuse for his illness and that he told Villa he had a doctor's excuse. There is nothing to indicate that claimant was not in fact sick or that Villa had facts showing claimant was not sick on the 7th or 11th. The notice terminating benefits was unsupported and unreasonable.
¶45 Claimant reported to work hardening on September 13, 2001. Miller's note reads:
(Ex. 1 at 14.)
¶46 Claimant testified he was still not feeling well on September 13th, but went to work hardening anyway. When asked about Miller's reference to his failure to upgrade to other weights, claimant testified he had been told not to upgrade without a note of consent from a therapist and had been instructed not to move to higher weights if his elbow was still causing pain. He had also been instructed to stretch between exercises. As for waiting around machines, he testified the practice in the gym was to wait at a machine between sets of exercises. Miller was not called to testify at trial, leaving the Court with no reason to question claimant's explanation. Claimant's testimony itself on this point was entirely credible and it is significant that prior physical therapy notes indicate his cooperation in the program.
¶47 On September 14, 2001, claimant called Villa about her September 13th letter and was 40 minutes late to work hardening as a result. (Churchill Dep. at 27; Ex. 1 at 13.) He performed seven hours of work conditioning. (Id.) Miller also wrote:
(Ex. 1 at 13, emphasis added.)
¶48 By this time claimant was beginning to have numbness and tingling that was different from the pain he had been feeling within the joint. (Claimant's Trial Test.)
¶49 The FCE took place on September 20, 2001, and was administered by Miller. (Ex 1 at 8.) Miller's report indicates that the shortening of the work-hardening program and the acceleration of the FCE was not for medical reasons but in response to the claims adjuster's or case manager's request:
(Id., emphasis added.) There is no explanation for the comment that claimant was "inconsistent" in his participation, unless Miller was referring to the times claimant was absent, but these absences were excusable.
¶50 During the FCE claimant complained of pain when working through exercises simulating heavy physical labor. (Id.) Miller doubted claimant's pain reports based largely on his observation that claimant's use of force through both arms was symmetrical. He was also suspicious of claimant's statement that he could not grip a bin with his full hand. (Id. at 10.) Miller believed there was "no objective data or tests that we have done or that the doctors have done that would support him not being able to use a grip through that hand to at least grab the box." (Id.) Miller believed claimant demonstrated symptom magnification due to his wincing and pain reports. However, Miller still concluded, that claimant did not qualify for heavy physical work. (Id.) He wrote:
(Id. at 10.)
¶51 On October 17, 2001, claimant was evaluated by Dr. Bill Shawn Rosen, a board certified specialist in physical medicine and rehabilitation. (Ex. 1 at 1; Rosen Dep. at 3.) Dr. Rosen now practices with the Deaconess Billings Clinic, which is the clinic where claimant received treatment, physical therapy, and work hardening. Dr. Rosen regularly renders impairment ratings using the JAMA Guide. (Id. at 4, 5.)
¶52 At the time of Dr. Rosen's evaluation, claimant said "that up to ten times a day he will have pain [that] radiates down the arm into the fourth and fifth digits of the right hand which last anywhere from 2 to 3 seconds to up to 30 seconds. . . . occasionally the pain will radiate from the medial aspect of the elbow into the armpit though this is quite rare." (Ex. 1 at 1.) On examination, Dr. Rosen noted hyperlaxity of claimant's right elbow.
(Id. at 2.) Claimant testified that when Dr. Rosen manipulated his arm he could feel the nerve "pop out" with "a sharp, mild numbness type pain you can feel in your fingers and the palm of your hand." (Churchill Dep. at 22.)
¶53 Dr. Rosen was deposed. He confirmed that claimant's right ulnar nerve sometimes pops out of the ulnar groove when he extends and flexes his right elbow. (Rosen Dep. at 8.) Dr. Rosen opined that claimant suffered three injuries in his industrial accident. "He had a biceps contusion, partial biceps tear, and both of those were identified by MRI. And then he had a subluxing ulnar nerve which caused pain." (Id. at 13-14.) Dr. Rosen rated claimant's impairment at 8% of the whole person impairment. (Id. at 16-17.)
¶54 While Dr. Rosen could not definitively identify the precise mechanism of the ulnar nerve injury, he said that
(Id. at 19-20.) He went on to say that while the blow was to the opposite side of the arm as the ulnar nerve
(Id. at 20.) He was impressed by
(Id. at 40-41.)
¶55 Despite the efforts of insurance counsel at deposition, Dr. Rosen could not be shaken from his opinion that claimant's condition was caused by the injury. He testified:
(Id. at 45.)
¶56 At the time of his examination of claimant, Dr. Rosen placed claimant at maximum medical improvement (MMI). (Ex. 1 at 2-3.) He also recommended physical therapy and counseling. The latter recommendation was based on his observation that claimant had "definite difficulties coping with his right upper extremities dysfunction." (Id. at 3.) He restricted claimant to sedentary to light work with the right arm, though he believed claimant could perform medium work with his left arm. (Id.)
¶57 When asked at deposition if he would change any of his conclusions after reviewing claimant's medical records, Dr. Rosen stated he would refer claimant for a surgical consultation, based on his understanding that other recent patients with similar conditions have had good results from surgery. (Id. at 18-19.)
¶58 Following receipt of Dr. Rosen's report, insurance counsel wrote to Dr. Lewallen, asking whether he had noted the recurrent ulnar nerve dislocation found by Dr. Rosen. On November 14, 2001, Dr. Lewallen responded:
(Ex. 1 at 4.)
¶59 Dr. Lewallen did not testify either at trial or by way of deposition.
¶60 In addition, the insurer referred claimant to Dr. Randall P. Graff, a specialist in occupational medicine, for evaluation. (Ex. 1 at 39.) Dr. Graff examined claimant on December 14, 2001, confirmed claimant's injury to the right biceps muscle, and also confirmed "[i]ntermittent mild subluxation of the ulnar nerve which is present on both elbows, but more symptomatic on the right." However, Dr. Graff did not feel that claimant's ulnar nerve condition was "clearly related to his accident, or certainly not entirely related to his accident since he has this on the opposite side, but is asymptomatic [on that opposite side]." (Id. at 40d, emphasis added.) Dr. Graff's report also indicates he read the work-hardening program notes, which he credited as showing claimant was "non-compliant" with the program (ex. 1 at 40a), a conclusion which I previously found was unsupported and unjustified. Ultimately Dr. Graff concluded that claimant had no residual impairment from his industrial accident and had reached MMI. (Id. at 39, 40d.)
¶61 Dr. Graff did not testify at either trial or by way of deposition.
¶62 The insurer has vigorously attacked claimant's credibility, going so far as to state in its pretrial contentions, "Petitioner is a fraud." (Respondent's Contention 8, Pretrial Order at 8.) The accusation made by the insurer is unfounded and beyond the bounds of legitimate advocacy. The insurer misreads records concerning claimant's cooperation in the work-hardening program. Its litigation posture is a continuation of the adversarial and unfounded position taken by its claims adjuster, who ignored claimant's illness and evidence which would have supported his claim that he was ill. Its reading of the work-hardening records has been selective and without regard to the apparent bias and misstatements of the physical therapist. It relies on insinuation and innuendo to suggest that post-injury claimant was "working up a storm." (Respondent's Contention 21, Pretrial Order at 6.) Contrary to respondent's claim that this is "frivolous litigation" (id.) for which respondent should be entitled to a penalty, the litigation is meritorious. It is the extreme statements of the insurer and its counsel that should warrant sanction.
¶63 I am persuaded that claimant's current elbow condition was caused by the March 26, 2001 industrial accident. This conclusion follows in part from my finding that he was a credible witness, but is also supported by the record as a whole. For instance, although the insurer suggested repeatedly that claimant's reports of numbness and tingling arose only long after the injury, the record from March 27, 2001, the day after the injury, documents "some tingling in the 4th and 5th fingers." (Ex. 1 at 73.) Claimant complained of pain at the medial condyle very early on. The medial condyle is where the ulnar groove is. From his own review of the medical record, Dr. Rosen cited the consistency of claimant's reports as one of the reasons he believed claimant had the pain he described and that it was caused by the accident. Also persuasive is Dr. Rosen's testimony that claimant's report of sensation followed the ulnar nerve distribution such that claimant was either having actual numbness and tingling relating to the ulnar nerve or had read an anatomy book. (Rosen Dep. at 41.)
¶64 Whether claimant has ulnar nerve laxity in both arms, as indicated by Dr. Graff, and whether that laxity is congenital, also as indicated by Dr. Graff, Montana law has long provided that a workers' compensation insurer takes a claimant as it finds him. Satterlee v. Lumbermen's Mutual Casualty Co., 280 Mont. 85, 929 P.2d 212 (1996). There is no evidence that claimant suffered the popping out of his right ulnar nerve before the accident or that he had pain and numbness in the right ulnar nerve distribution prior to his industrial injury.
¶65 Neither Dr. Lewallen nor Dr. Graff testified. Their reports are insufficient for me to disregard the testimony of Dr. Rosen, which was well reasoned and subjected to vigorous cross-examination. I therefore conclude that as a result of his March 26, 2001 industrial accident, the claimant suffers from a right ulnar nerve condition evidenced by the nerve popping out of its groove at the elbow, pain, and some numbness. I further adopt Dr. Rosen's impairment rating of 8%, his evaluation of claimant's condition, and his recommendations for further treatment.
¶66 Finally, I conclude that despite insurer's unreasonable conduct it was not unreasonable for it to litigate the issues raised in this case. The medical opinions were conflicting, and the opinions upon which the insurer relied were not so beyond the pale of legitimacy that the insurer was unreasonable in relying upon them.
CONCLUSIONS OF LAW
¶67 This case is governed by the 1999 Workers' Compensation Act since that was the law in effect at the time of claimant's March 16, 2001 injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶68 Under the 1999 Workers' Compensation Act, and, for that matter, under other versions of the Act, an insurer is liable for medical conditions which were caused or aggravated by the industrial injury. A condition made symptomatic by an industrial accident is compensable, even if it may not have arisen but for a congenital condition. Montana law has long provided that a workers' compensation insurer takes a claimant as it finds him. Satterlee v. Lumbermen's Mutual Casualty Co., 280 Mont. 85, 929 P.2d 212 (1996).
¶69 Based on the foregoing findings of fact, the claimant has proven that his current arm condition, in particular his ulnar nerve condition, is related to his industrial accident. The insurer is responsible for that condition, including the medical treatment recommended by Dr. Rosen and any and all other medical treatment that may be appropriate.
¶70 Claimant also seeks an impairment award. That award is governed by section 39-71-703, MCA (1999), which provides in pertinent part:
¶71 Section 39-71-711, MCA (1999), addresses impairment evaluations, providing in pertinent part:
¶72 Dr. Rosen rendered an 8% whole person impairment rating. The insurer argues against Dr. Rosen's impairment on two grounds. The first is factual -- that the claimant's condition is not related to his injury. The second is based on opinions of Drs. Lewallen and Graff that he suffered no impairment. I have found Dr. Rosen's opinions the more persuasive. He testified and was subjected to vigorous cross-examination. Drs. Lewallen and Graff did not testify and I have only their reports. Those reports, without more, provide an insufficient basis for me to reject Dr. Rosen's testimony.
¶73 Somewhat more troubling is the insurer's argument that Dr. Rosen's impairment rating is not properly based on the Guides. An impairment rating must be based upon the current edition of the Guides. But while the insurer questions Dr. Rosen's rating, it has not presented expert testimony that Dr. Rosen's reasoning is not permitted under the Guides. In contrast, Dr. Rosen testified at deposition that he has received training in interpretation of the Guides and believes that the impairment he rendered flows from the Guides and the training he has received. In this case, I am satisfied with that testimony.
¶74 As a final matter, claimant requests both attorney fees and a penalty. To award either or both, I must find that the insurer has acted unreasonably in denying liability for the benefits sought by the claimant. §§ 39-71-611, -612, and -2907, MCA (1999). Although the insurer has acted unreasonably in some matters, it was not unreasonable for it to dispute and litigate the specific issues raised in this case.
¶75 Claimant's right arm condition, in particular his right ulnar nerve condition is related to his March 26, 2001 industrial accident and is compensable. He is entitled to medical benefits for treatment of his right arm condition, including but not limited to the treatment recommended by Dr. Rosen.
¶76 Claimant is entitled an 8% impairment award rendered by Dr. Rosen, which respondent shall pay.
¶77 Claimant is not entitled to a penalty.
¶78 Claimant is not entitled to attorney fees but is entitled to costs. Claimant shall file his memoranda for costs in accordance with the rules of this Court.
¶79 This JUDGMENT is certified as final for purposes of appeal.
¶80 Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 22nd day of August, 2002.
c: Mr. R. Russell Plath
1. Ecchymosis is a "small, haemorrhagic spot...in the skin...forming a nonelevated, rounded or irregular, blue or purplish patch." 1998-2002 On-line Medical Dictionary. http://cancerweb.ncl.ac.uk/cgi-bin/omd?ecchymosis
2. The medial epicondyle is part of the distal (elbow end) knuckle of the humerus. As will be discussed later in this decision, the claimant's ulnar nerve pops out of the ulnar groove at the elbow. That groove is at the medial condyle. (Rosen Dep. at 10.)
3. The photocopied record provided to the Court (Ex. 1 at 19) contains in handwriting: "was hurt late March -- we have NOT had cold weather YET!" (Id.) The note appears written as a comment to the physical therapy report, suggesting it was a comment of the adjuster.
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