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Summary: Claimant was injured in a work-related automobile accident and suffered a broken shoulder and a brief period of unconsciousness. The insurer accepted liability and paid benefits. However, following independent medical examinations (IME) it denied payment for further physical therapy and refused to authorize a neuropsychological examination to determine if claimant suffered brain damage. She petitioned the Court from those denials. At trial the insurer agreed to pay the outstanding physical therapy bills and agreed that current ongoing physical therapy treatment is compensable. However, it maintained that a neuropsych exam is premature since claimant's depression has not adequately been treated.
Held: Unrefuted testimony of the IME neurologist establishes that claimant's depression should be more aggressively treated before any neuropsych exam is authorized or done since claimant's inability to concentrate and memory difficulties may be caused by depression and because depression may make neuropsych testing unreliable. Therefore, neuropsych testing is not reasonable at this time. However, it will become reasonable if treatment of claimant's depression does not alleviate her problems.
¶1 The trial in this matter was held on February 20, 2002, in Helena, Montana. Petitioner, P.J. (Patricia) Emineth (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, Travelers Insurance (Travelers), was represented by Mr. Kelly M. Wills.
¶2 Exhibits: Exhibits 1 through 29 were admitted by agreement of the parties.
¶3 Witnesses: Claimant testified in person at trial. Dr. Lennard S. Wilson was scheduled to testify by video conference, however, the video was not working. With the agreement of the parties, his testimony was therefore taken by telephone.
¶4 Issues presented: The issues as set forth in the Pretrial Order are:
(Pretrial Order at 2.)
¶5 Resolution of Physical Therapy Issue: At the commencement of trial, the Court engaged counsel in discussion of the physical therapy issue. The claimant has recently undergone surgery and the insurer agrees that she is presently in need of physical therapy. The dispute is over past physical therapy. After discussion with counsel, the Court ascertained that there are approximately three physical therapy sessions which the insurer has not paid. After further discussion, Travelers, through its counsel, agreed to pay for those sessions and claimant agreed to waive her claim for a penalty and attorney fees with respect to that issue.
¶6 The remaining issue is claimant's request for an order directing Travelers to pay for neuropsychological testing, as well as her request for attendant attorney fees, a penalty, and costs respecting that testing. I have limited my findings of fact and conclusions of law to those issues and have not addressed other issues or medical disputes.
¶7 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
¶8 In 1986 claimant obtained a degree in nursing and was licensed as a Licensed Practical Nurse. She worked steadily in nursing after that time and went on to obtain a further nursing degree. She was certified as a registered nurse (RN) in 1996. She had a stable job history and no history of psychiatric treatment prior to the industrial accident at issue in this case.
¶9 On January 25, 2000, claimant was working as a registered nurse case manager for Concentra Managed Care (Concentra). (Ex. 6). While driving to Kalispell to meet with a workers' compensation claimant and physician, she hit a patch of black ice and lost control of her vehicle, which rolled over, landing on its wheels. The claimant was thrown about in the accident. She hit her shoulder, breaking her collar bone (clavicle), and hit her head, losing consciousness.
¶10 At the time of the injury, Concentra was insured by Travelers, which accepted liability for the claim and paid various compensation and medical benefits. (Uncontested Fact 2.)
¶11 Since the accident, claimant has undergone two surgeries on her clavicle, the first on October 4, 2000, and the second very recently. Because the remaining issue does not involve medical treatment or liability for claimant's shoulder injury, I omit recitation of her medical history in this regard.
¶12 In addition to her shoulder injury, claimant experienced headaches after the accident. The first mention of headaches in medical records was made one month after the accident by Dr. Brooke M. Hunter, who is an orthopedic surgeon. Dr. Hunter has treated claimant for her shoulder injury and performed both shoulder surgeries. In his office note of February 25, 2000, he recorded that claimant reported, "She is having headaches at night. She has had these before but the car wreck and possible head bump has made these a problem again." (Ex. 1 at 2.)
¶13 On June 21, 2000, Dr. Hunter noted, "She is having a fair amount of what sounds to be cervical spasm headaches. They start in her neck around her collar bone area and work up towards [her] head and the headaches start." (Ex. 1 at 4.)
¶14 A month later, on July 21, 2000, Dr. Hunter again noted that claimant was continuing to have headaches but his note indicates his belief that her headaches were associated with her broken collar bone:
(Ex. 1 at 5.)
¶15 Claimant's shoulder difficulties were thereafter paramount and led to surgery on October 4, 2000. Following surgery the claimant continued to experience pain, as well as tingling in her shoulder and arm. Dr. Ronald K. Hull, a pain specialist who examined her on May 14, 2001, characterized her tingling as a "somewhat of a diffuse pattern of neurologic abnormalities in the left upper extremity and hand." (Ex. 2 at 4.) Among other things, a cervical radiculopathy was suspected but apparently ruled out by MRI. (Ex. 9 at 1-2.) A neurosurgical consultation was done by Dr. Dale Schaefer, a neurosurgeon in Great Falls (exs. 1 at 15 and 9 at 2), but his records have not been furnished to the Court. Dr. Schaefer concluded that claimant had suffered a "brachial plexus stretch injury," a diagnosis in which Dr. Hunter concurred. (Ex. 1 at 15.)
¶16 In any event the next mention of headaches was on April 25, 2001. Dr. Hunter's note for that date says:
¶17 Claimant was evaluated by Dr. Hull on May 14, 2001. During the history he took from claimant, she related that "she suffered some degree of closed head injury with loss of consciousness" in the auto accident and that "over time she noticed that she was having problems with the left-sided neck pain and headache, which she has had ever since the accident." (Ex. 2 at 1.) Listed among Dr. Hull's impressions was "[h]istory of chronic left-sided occipital headaches and neck pain," which he related "by history" to claimant's auto accident. (Id. at 4.)
¶18 Dr. Hull's report also contains other information relevant to claimant's mental status. He noted that claimant "does express some problems with fatigue and is not able to keep up the level of work that she did before her injury," although he noted she had "missed very little work . . . ." (Id. at 2.) He also noted that she had been "taking medication for depression and started on this about two months after the injury." (Id.) At trial the claimant testified that antidepressants were prescribed by Francis Guthridge, a nurse practitioner, who was claimant's primary medical provider.
¶19 Dr. Hull recommended a multidisciplinary approach for claimant's ongoing pain, including medications to treat "what seems to be in large part a neuropathic pain problem," a "chronic pain psychologic assessment," and "supportive psychotherapy." (Ex. 2 at 5.)
¶20 At least by late June 2001, the claimant was concerned with what she perceived as an inability to concentrate. At trial she described difficulty in completing multiple tasks and with memory. Following her accident she had returned to work with Concentra but after a few months she found the continued travel difficult on account of her continued shoulder pain. She then secured employment with VRI, and thereafter APS (apparently a successor company to VRI), again as a nurse case manager. (Ex. 5 at 2.) At trial she testified that while working for APS she had difficulty completing her work on time and in writing reports. Her employment was terminated by APS on November 29, 2001, for what claimant described as "unsatisfactory performance." (Id. at 3.)
¶21 Claimant was a credible witness. I find that the difficulties she described were real.
¶22 On July 3, 2001, Dr. Hunter recorded that claimant "is continuing to have mental lapses and spacey feeling status post concussion, loss of consciousness etc. at the time of the injury. She doesn't think that is getting any better. She is on Celexa and is receiving counseling." (Ex. 1 at 19.) He recommended that claimant "see Mary Kay Bougimill [a neuropsychologist] with thoughts toward a neuro psych evaluation to help see if there is any organic post concussion component to her mental status and psychological problems." (Id.) He noted: "This of course would be related to her head injury etc. as described above." (Id.)
¶23 Claimant followed up with Dr. Hull on July 19, 2001. In addition to continuing "neuropathic pain" in her neck, shoulder, and arm, claimant reported concern "about her ability to process things intellectually and having some trouble with forgetfulness." (Ex. 2 at 6.) Dr. Hull recommended trying "some neuromodulation therapy with medications, such as tricylcic antidepressants and/or anticonvulsants." (Id.) Given the "jabbing electric come and go sensations," he recommended first trying anticonvulsant medication. Before prescribing such medication, however, he wanted claimant to have "neuropsych testing because she may get some possible cognitive impairment from the anticonvulsant medications." (Id.)
¶24 On August 14, 2001, Drs. Lennard S. Wilson and Catherine C. Capps performed another IME, reviewing additional medical records and re-interviewing and re-examining claimant. (Ex. 9.) In addition to her shoulder pain and associated symptoms, in the history claimant gave the doctors she said she suffered frequent headaches. She reported her energy level at zero, and her sleep fitful and not restful. She also told them that she had little pleasure in the last several months and had "difficulty concentrating, rereading both pleasurable and technical material. She seems to work at a much slower level, not able to juggle as many facts as usual." (Id. at 3.)
¶25 With regard to claimant's mental status, Drs. Wilson and Capps noted:
(Id. at 5.) They went on to say:
(Id. at 7.)
¶26 On October 4, 2001, claimant returned to Dr. Hunter for follow-up. (Ex. 1 at 38.) He was aware of the IME report regarding neuropsych testing and noted:
¶27 The debate over neuropsych testing continued. On October 25, 2001, Dr. Wilson responded to additional questions from the insurer. He explained his general agreement with Dr. Hull's treatment of claimant, commenting "no objection to trying Neurontin for this type of pain, although have suggested that effective treatment of her depression is of primary importance in her recovery and treatment." (Ex. 10 at 1.) He reiterated that claimant's "depression may benefit from further therapy." (Id.)
¶28 On November 2, 2001, Dr. Hull also responded to an inquiry from the insurer. (Ex. 2 at 7.) He reiterated his "recommendation for the chronic pain psychologic assessment, with agreement with Dr. Hunter's assessment that she probably would also benefit from some neuropsychiatric testing since she did have a history of loss of consciousness signifying a closed head injury at the time of her accident." (Id.)
¶29 On December 20, 2001, at the request of the insurer, the claimant was evaluated by Dean Gregg, Ph.D., a clinical psychologist. (Ex. 5.) Dr. Gregg met with and interviewed claimant, reviewed employment materials, and administered two psychological assessments. (Id.) Dr. Gregg noted claimant "has a history of depression, and in July, 2001 began complaining of forgetfulness and poor concentration." (Id. at 1.) He noted her physician's recommendation of a neuropsychological evaluation, which was "denied on the grounds that her symptoms were most likely due to depression." (Id.)
¶30 Dr. Gregg reviewed treatment notes, beginning in March of 2000, of the nurse practitioner who was claimant's primary care provider. Those notes indicated that claimant had suffered serious depression and was treated with Effexor, an antidepressant. (Id. at 3.) He also reviewed the August 2001 IME exam and the finding that she was "clinically depressed." (Id. at 5-6.)
¶31 Dr. Gregg's own impression was that claimant was suffering from an "Adjustment Disorder with Mixed Anxiety and Depression...Coping Style Affecting Medical Condition." (Id. at 10.) Believing a more serious diagnosis (major depression) may have been appropriate for claimant several months earlier, he noted that her symptoms appeared to have improved. Dr. Gregg attributed claimant's adjustment disorder to her work injury. (Id.) He went on to discuss his diagnosis of Adjustment Disorder and its underlying significance and its causes:
(Id. at 10-12.) He went on to caution:
(Id. at 13.)
¶32 Dr. Gregg recommended interim psychological counseling, continued psychotropic medication in the interim, and aggressive treatment for insomnia. (Id. at 12.) Regarding neuropsychological testing, Dr. Gregg noted:
(Ex. 5 at 12-13.)
¶33 On January 11, 2002(1), Dr. Gregg responded to a letter from the insurer posing additional questions. He stated that he did not consider himself qualified to answer questions about whether the medical records reflected a brain injury or whether neuropsychological testing was appropriate. (Ex. 26 at 1.)
¶34 Travelers continued to refuse to authorize neuropsych testing, however, it did authorize claimant to seek psychiatric treatment for her depression and anxiety. At trial, claimant agreed to do so, however, she still contends that she should be allowed to proceed with neuropsych testing, at Travelers' expense, without further delay.
¶35 The only medical testimony in this case was provided by Dr. Wilson, who participated in the two IME examinations of claimant. Dr. Wilson is board certified in neurology. His training in neurology also involved some psychiatry. As part of his medical practice he treats head-injured patients.
¶36 Although he does not personally do neuropsychological testing, Dr. Wilson is familiar with the testing and relies upon neuropsych test results in treating patients. He testified that the claimant's psychological symptoms may be explained by her depression, but more importantly that depression interferes with neuropsych testing and makes the results unreliable. In his practice he defers neuropsychological testing of obviously brain injured patients until other medical and psychological issues are addressed and treated. Dr. Wilson said that treatment of claimant's depression by a nurse practitioner would be fine if the antidepressants she prescribed adequately controlled claimant's depression but that in fact claimant's depression was poorly controlled. He recommended she be evaluated and treated for depression by a psychiatrist.
¶37 Neither Dr. Hull's nor Dr. Hunter's office notes or records address whether claimant's depression or adjustment disorder would interfere with neuropsych testing, and neither physician testified. Dr. Gregg's report indicated his understanding that claimant's depression and adjustment disorder may render neuropsych results unreliable, although he indicated that he may not be current in his thinking. Claimant did not call a neuropsychologist to support her case for prompt testing. Thus, the Court is left with Dr. Wilson's unrebutted testimony and Dr. Gregg's reservations regarding the reliability of neuropsych testing.
¶38 Accordingly, I find that claimant should proceed with treatment for her depression and adjustment disorder, which she has agreed to do, and that neuropsych testing is premature. However, I further find that should her memory and concentration difficulties continue despite that treatment then neuropsych testing at that time is reasonable and appropriate.
¶39 Finally, I find that the insurer has not acted unreasonably in refusing to presently authorize neuropsych testing. Drs. Wilson's and Gregg's reports provided a substantial basis for its refusal, indeed I have found Dr. Wilson's testimony persuasive and sustained the insurer's position.
¶40 This case is governed by the 1999 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).
¶41 Claimant bears the burden of proving by a preponderance of the evidence that she is entitled to the benefits she 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).
¶42 Payment of medical benefits is governed by section 39-71-704, MCA (1999). That section provides in relevant part:
¶43 The more important question is whether a neuropsych exam is "reasonable" at this time. I have found as a matter of fact that it is not. Therefore, claimant's request that the Court order the insurer to approve the exam must be denied.
¶44 However, since the record evidences tension and disagreement between the insurer and claimant, I retain continuing jurisdiction in the event a further disagreement ensues as to the success of further psychological treatment or the need for or timing of neuropsych testing. I am persuaded by claimant's testimony and Dr. Gregg's report that the conflict with the insurer is adversely affecting claimant's mental health. By retaining continuing jurisdiction to carry out the ultimate findings set forth in this paragraph, claimant can be assured of speedy access to the Court and a prompt resolution if any further dispute arises concerning her need for neuropsych testing.
¶45 Since the claimant has failed to persuade the Court that a neuropsych evaluation is currently reasonable, her requests for attorney fees, a penalty, and costs must be denied. Moreover, attorney fees and the penalty require proof that the insurer has acted unreasonably in failing to approve the evaluation. §§ 39-71-611, -612, 2907, MCA (1999). As a matter of fact, I have found it did not act unreasonably.
¶46 Travelers shall abide by its agreement, made in open court, to pay claimant's outstanding physical therapy bills.
¶47 Claimant's request that the Court order Travelers to approve and pay for a neuropsychological examination is denied. However, the Court retains continuing jurisdiction in the event a further disagreement ensues as to the success of further psychological treatment or the need for and timing of neuropsych testing.
¶48 This JUDGMENT is certified as final for purposes of appeal.
¶49 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 day of 8th March, 2002.
c: Mr. Norman H. Grosfield
1. The letter (Ex. 26) is dated January 11, 2001, but from context it was written in 2002, not 2001
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