2004 MTWCC 51

WCC No. 2003-0858

Summary: The claimant brought a petition seeking benefits. All of his claims were resolved by agreement with the insurer except his claim that a kidney stone for which he was treated in May 2003 was attributable to his industrial accident.

Held: The claimant has failed to produce any evidence rebutting medical opinion evidence produced by respondent showing that his kidney stone was not attributable to his industrial accident, therefore there is no material issue of fact which would entitle the claimant to a trial. Summary judgment is granted.

Topics:

Summary Judgment: Disputed Facts. Where the issue is one of medical causation and the insurer presents uncontradicted medical opinion that the medical condition in question was not caused by the industrial accident, the insurer is entitled to summary judgment.

Summary Judgment: Disputed Facts. Where one party presents medical opinion that a particular medical condition was not caused by the claimant's industrial accident, the other party can avoid summary judgment only by presenting contrary medical opinion or evidence which raises a factual issue regarding causation.

Summary Judgment: Motion for Summary Judgment. Where one party presents medical opinion that a particular medical condition was not caused by the claimant's industrial accident, the other party can avoid summary judgment only by presenting contrary medical opinion or evidence which raises a factual issue regarding causation.

Proof: Burden of Proof. The claimant has the burden of proving a causal connection between the industrial accident and the medical condition for which compensation is sought.

¶1 This matter is before the Court on the motion for summary judgment filed by respondent Vanliner Insurance Company (Vanliner). The claimant filed no opposition to the motion. For the reasons noted below, the motion is granted.

Uncontroverted Facts

¶2 The facts are set out in the affidavits and documents attached to the respondent's motion for summary judgment. Procedural facts are taken from the Court file. The claimant has not replied to the motion for summary judgment.

¶2a On or about July 27, 1999, James T. Cuellar (claimant) suffered an industrial injury during employment with Seaton Van Lines, Incorporated, in Billings, Montana. (Response to Petition, ¶ IA; Affidavit of Kelly M. Wills at Ex. A.)

¶2b At the time of the accident, the employer was insured by Vanliner. (Response to Petition, ¶ IB.)

¶2c Respondent accepted liability for the industrial accident. On March 10, 2000, the Department of Labor and Industry approved a settlement between the parties resolving disability and rehabilitation benefits, reserving medical benefits to the claimant. (Response to Petition, ¶ IC; Affidavit of Kelly M. Wills at Ex. A.)

¶2d The parties disputed the compensability of a number of medical bills submitted by claimant for back problems, bowel obstruction, and kidney stones. On September 26, 2003, Dr. Douglas W. Beard performed an independent medical examination (IME) of the claimant to address issues raised. (Response to Petition, ¶ II A; Affidavit of Kelly M. Wills at Ex. B.)

¶2e Following receipt of Dr. Beard's report, the respondent accepted liability for the claimant's back condition and bowel obstruction. It continued to deny liability for medical treatment related to a kidney stone suffered by the claimant. (Affidavit of Kelly M. Wills at Ex. E; Minute Entry No. 3403 dated January 14, 2004.)

¶2f On November 11, 2003, Dr. Beard supplemented his written report to address the causation issue surrounding the claimant's kidney stone. Dr. Beard opined:

In my opinion, while the low back pain present at the time of his emergency room visit on May 26, 2003 may have been due to a kidney stone, this question would best be left to the diagnosis obtained on that date, that being that of the kidney stone. I do not believe that the kidney stone was ultimately caused by his industrial low back injury. It would seem that if the diagnosis made at the time of the emergency room visit on May 26, 2003 was that of kidney stone, that this ultimately was the cause and the basis for his need for medical attention on that date, and not due to his 1999 industrial low back injury.

(Affidavit of Kelly M. Wills at Ex. C.)

¶2g On December 14, 2003, the claimant wrote to the Court. His letter included the following statement:

May 6, 2003 I went back to Rose Medical Center Room for kidney pain which was caused by the bowel obstruction and being bedridden for a long length of time.

(Cueller letter filed 12/17/03, bold in original.) Attached to that letter was a printout of "Patient's Data" from the Rose Medical Center, relating to treatment received by claimant. (Id., original in caps.) The "reason for visit" on May 6, 2003, was termed "lower right side pain." (Id., original in caps.) The treating physician was referenced as "SUMCR." (Id.)

¶2h In a conference call with the claimant and insurance counsel on January 14, 2004, this Court explained to the claimant that "in the first instance he bears the burden of presenting medical evidence showing a causal relationship between his kidney stones and back injury." (Minute Entry No. 3403 dated January 14, 2004.) The claimant indicated he was attempting to obtain medical opinions showing the relationship and expected to obtain the medical opinions later in the week. The Court asked the claimant to forward any opinions immediately to Mr. Wills and invited him to forward said opinions to the Court for inclusion in the Court file. (Id.)

¶2i The claimant produced an "Addendum" authored by Dr. Craig N. Summer relating to medical services provided on May 6, 2003. The Addendum states:

The dictation is in regards to a visit on the 6^th of May.

I was contacted by the patient on January 13^th, 2004. He discussed with me his emergency room visit on the 6^th of May, 2003.

I reviewed my record. I had seen the patient at that time for flank and back pain, and the patient apparently by CT scan had evidence of a kidney stone on the right side. The patient is concerned today about this because his Workers' Compensation is not covering this actual visit to the emergency department. He is wondering whether [sic] is any relation to his previous hospitalizations and if this could be related to his visit for a kidney stone.

I reviewed the patient's medical records. The patient was seen on April 24^th, 2003 by Dr. David Moon for back pain and apparently was treated for back pain at that time. He has a history of a previous lumbar disck [sic] injury 2 1/2 years ago. The patient subsequently was admitted to the hospital for apparent abdominal pain, nausea, vomiting, and apparently had a bowel obstruction secondary to analgesic use he used for hiw [sic] back pain.

The patient was subsequently seen by myself on May 6^th, when he was seen for a kidney stone.

The patient questions me whether or not there could be relationship between his flank pain on his right side when I had seen him in May in relation to his previous back pain. I do not have a direct relationship between the patient's initial back injury to account for him having a kidney stone, for which I treated the patient for. It appears that the pain that I had treated the patient for upon on review of the records from a kidney stone on the right side. Theoretically, the patient states that would there be any relationship. The only way that I could see that the patient could have been placed at risk for a kidney stone is the fact that the patient had been hospitalized, was bedridden for a period of time, and may have been dehydrated. He was discharged from the hospital apparently from his bowel obstruction on May 4^th, returned two days later by my review of the records with the kidney stone.

Therefore, the patient has asked to consider making an addendum into the chart, and I have done this at this time for the patient.

(Affidavit of Kelly M. Wills, Exhibit D.)

¶2j On February 20, 2004, the Court's hearing examiner held a telephonic pretrial conference with the claimant and the respondent's counsel. The hearing examiner noted that the Court had received Dr. Summer's addendum and that he did not read the report as proving that the claimant's back condition caused his kidney stone. The claimant indicated he was trying to obtain an additional report, but needed additional time. The case was continued to April 19, 2004. (Dufrechou February 20, 2004 Memo to File.)

¶2k On March 25, 2004, the Court's hearing examiner held a further telephone conference with the claimant because he had not produced an additional medical report and the deadline for pre-trial disclosure was approaching. The claimant indicated the report he was seeking should issue in a week or two. The trial date was continued to June 28, 2004. (Dufrechou Memo to File, March 25, 2004.)

¶2l Respondent/Insurer's Motion for Summary Judgment Regarding Kidney Stone Issue, with Supporting Brief, was filed May 28, 2004. The claimant has filed no response to the motion. The time for responding to the motion has passed.

Discussion

¶3 "Summary judgment is an extreme remedy and should never be substituted for trial if a material factual controversy exists." Spinler v. Allen, 1999 MT 160, ¶ 16, 295 Mont. 139, ¶ 16, 983 P.2d 348 (1999). On the other hand, if the facts material to the motion are undisputed and entitle a party to summary judgment, then summary judgment is proper. Morgan v. Cargill, Inc., 259 Mont. 400, 403, 856 P.2d 973, 975 (1993).

¶4 While the Workers' Compensation Court will accommodate, when possible, a pro sé claimant's difficulties in complying with the formalities of litigation, cases filed by pro sé litigants are determined under the same legal principles applicable to all cases. Pro sé litigants are also required to comply with Court rules regarding filings and deadlines. American Interstate Ins. Co. v. Kurth, 2003 MTWCC 71, ¶ 2.

¶5 An insurer is liable only for those medical conditions caused or materially aggravated by an industrial accident. "Causation is an essential element to benefit entitlement. The claimant has the burden to prove a causal connection by a preponderance of the evidence." Hash v. Montana Silversmith, 256 Mont. 252, 257, 846 P.2d 981, 983 (1993); McCauley v. Liberty Northwest, 2004 MTWCC 43, ¶ 47.

¶6 The question on summary judgment is whether there is an issue of fact as to whether the claimant's kidney stone was caused by his industrial injury. The insurer has proffered the opinion of its IME physician that the claimant's kidney stone was not caused by his industrial accident. In light of that evidence, the claimant was required to provide medical opinion evidence to the contrary which would raise a factual issue concerning causation. ARM 24.5.329. "Representations concerning prospective evidence are insufficient to raise an issue of material fact and are therefore disregarded. 'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial.'" Darrah v. Asarco, Inc., 2001 MTWCC 20, ¶ 3, quoting ARM 24.5.329(7).

¶7 The claimant has not filed a response to the motion for summary judgment. However, the Court has considered the "Addendum" apparently drafted by Dr. Summer, the emergency room physician who treated the claimant on the May 6^th emergency room visit at issue. The Addendum is attached to the Affidavit of Kelly M. Wills as Exhibit D.

¶8 Dr. Summer states: "I do not have a direct relationship between the patient's initial back injury to account for him having a kidney stone, for which I treated the patient for." (Affidavit of Kelly M. Wills, Exhibit D.) Dr. Summer goes on to note that "theoretically, the patient states that would there be any relationship . . . ." (Id., emphasis added.) This apparently reflects the question that claimant asked him to address. Dr. Summer responds to the question, stating, "The only way that I could see that the patient could have been placed at risk for a kidney stone is the fact that the patient had been hospitalized, was bedridden for a period of time, and may have been dehydrated." (Id.) The doctor notes that claimant was discharged from a hospital stay two days prior to his emergency room treatment for a kidney stone, however, no evidence has been brought to the Court's attention indicating that during the hospital stay in question the claimant was dehydrated.

¶9 Moreover, even viewing Dr. Summer's statements in a light most favorable to the claimant, they do not constitute a medical opinion on a more-probable-than-not basis that the claimant's kidney stone resulted from his industrial injury. At best the opinion merely states that it is posible there could be a relationship. The claimant has therefore failed to proffer evidence raising a disputed issue of material fact concerning the causation issue. Accordingly, the respondent is entitled to summary judgment on the issue.

SUMMARY JUDGMENT

¶10 All other issues having been resolved, leaving only the issue of the kidney stone for resolution by the Court, judgment is hereby entered finding and determining that the claimant's kidney stone is not causally related to his industrial injury and that he is not entitled to benefits with respect to the kidney stone. The petition is dismissed with prejudice.

DATED in Helena, Montana, this 24^th day of June, 2004.

(SEAL)

Mike McCarter
JUDGE

c: Mr. James T. Cuellar
Mr. Kelly M. Wills
Submitted: June 14, 2004