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2002 MTWCC 65
WCC No. 2002-0536
PAMELA ANN HAND
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
APPEAL DISMISSED WITH PREJUDICE 12/2/03
Summary: 43-year old claimant with preexisting degenerative arthritis and stenosis of the cervical spine stepped backwards from garage to ground approximately one foot lower, jarring herself. She felt pain in her mid-back, followed by other symptoms she attributed to the injury. Approximately two months later, she underwent neck surgery. Her doctor opined that the work incident may have slightly increased her pain, but that her symptoms and the need for surgery pre-existed the injury. Appearing pro se, claimant sought unspecified benefits, evidently including medical and wage loss benefits.
Held: The uncontradicted medical evidence and medical opinion demonstrates that claimant's condition and need for surgery preexisted the jarring she suffered when stepping off the garage and caused both the surgery and any disability.
¶1 The trial in this matter was held on June 28, 2002, in Helena, Montana. Petitioner, Pamela Ann Hand (claimant), was present and represented herself. Respondent, Royal Insurance Company of America (Royal Insurance), was represented by Mr. Robert E. Sheridan.
¶2 Exhibits: Petitioner's exhibits 1 through 3, 6, 9,13, and 15 were admitted over respondent's objections. Petitioner's exhibits 4, 5, 7, 8, 10 through 12, 14, and 16 through 21 were admitted without objections. Petitioner was queried regarding exhibit 18, and she then supplied various documents for that exhibit. The documents were admitted without objection except as to a patient brochure regarding neck surgery, which appears to be interesting but irrelevant to the issues in the case. Respondent's exhibits 1 through 4, 6 through 10, 12, 20, and 22 were admitted over objections of the petitioner. Exhibit 5 was determined not to be the medical records of the petitioner and were ordered by the Court to be removed from the Court's exhibit notebook and destroyed. Each party was also directed to do the same. Respondent's exhibits 11, 13 through 19, 21, 23, and 24 were admitted without objections. After reviewing the exhibits, I have determined that petitioner's exhibits 1 through 3 are documents pertaining to procedural matters in this Court. As such they are irrelevant to the merits of the petition.
¶3 Witnesses and Depositions: Claimant, her mother (Virginia Hand), and Sandy Scholl testified at trial. In addition, the parties submitted the depositions of claimant and Dr. Allen M. Weinert to the Court for its consideration.
¶4 Issues Presented: The issues as set forth in the Pretrial Order are:
(Pretrial Order at 2.)
¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
¶6 Claimant is presently 43 years of age and is a high school graduate.
¶7 In December 1999 claimant went to work for Washington Inventory Services (Washington) as an inventory specialist. (Hand Dep. at 14-15.)
¶8 On July 2, 2001, claimant was working in Lewistown, Montana on an inventory job for Washington. (Id. at 15.) While working that day, and while in the course of her employment for Washington, she stepped backwards from a garage where she was conducting an inventory onto an area of an unfinished driveway approximately one foot lower than the garage. (Uncontested Fact 1; Hand Dep. at 18-19.) She landed on her feet and did not fall. (Id. at 19.) As she put it, "I just kind of went "clunk."' (Hand Dep. at 19.) She continued working after the incident but felt pain in her mid-back. (Id. at 19-20.) Later on that day, claimant felt tightness in her back and experienced difficulty breathing. (Id. at 20-2; Ex. 7 at 18.)
¶9 Upon finishing work that day, claimant drove home to Helena. (Hand Dep. at 23.) She never returned to work.
¶10 Upon her return to Helena, claimant went to the emergency room of St. Peter's Hospital, where she was seen by Dr. Mark Ibsen. (Ex. 18 at 8.) Dr. Ibsen's note indicates that she reported she had stepped backwards and down about a foot. (Id.) Her complaints were of "some pain in her mid back and right lower chest area." (Id.) X-rays were taken but were negative. (Id.) His impression was vague: "Back pain from fall." (Id.)
¶11 At the time of the incident, Washington was insured by Royal Insurance. Washington reported the July 2nd incident to Royal Insurance (Ex. 5 and Ex. 6 at 34) and on August 3, 2001, Royal Insurance agreed to pay claimant temporary total disability benefits under a reservation of rights pending its completion of an investigation into the claim. (Ex. 6 at 6). It thereafter paid benefits retroactive to July 10, 2001, and commenced paying biweekly benefits. (Ex. 6 at 5, 32.)
¶12 On August 23, 2001, claimant underwent surgery on her neck. (Uncontested Fact 2; Trial Test.) The surgery was done by Dr. Steven Rizzolo, a neurosurgeon practicing in Billings. (Uncontested Fact 2; Weinert Dep. at 22.) He performed an anterior discectomy and fusions at the C5 through C7 levels. (Weinert Dep. at 23-24.)
¶13 On September 4, 2001, Royal Insurance's adjuster queried Dr. Weinert about claimant's condition and surgery. (Id.) On September 6, 2001, Dr. Weinert wrote back that claimant's need for "[neck] surgery preexists her injury of 7-2-01, although that injury may have caused a slight aggravation." (Ex. 7 at 17.) After receiving Dr. Weinert's response, Royal Insurance notified claimant on September 10, 2001, that it was terminating her temporary total disability benefits because her need for surgery antedated her July 2, 2001 injury. (Ex. 6 at 23.) It also denied liability for the expense of her surgery. (Id. at 44.)
¶14 Claimant is seeking benefits. While she has not identified the specific benefits she is seeking, it is clear that she is alleging that her surgery and her disability during recovery are related to her July 2, 2001 injury, thus she is seeking at minimum temporary total disability and medical benefits related to her surgery.
¶15 The only opinions concerning causation are those of Dr. Weinert and Dr. Rizzolo. Dr. Weinert testified. Dr. Rizzolo did not but did express his opinion in writing.
¶16 As noted earlier, Dr. Weinert had been treating claimant prior to July 2, 2001. His treatment goes back at least to September 11, 1992, when he evaluated claimant and diagnosed fibromyalgia, TMJ dysfunction, lumbar strain, and anxiety neurosis. (Ex. 7 at 86-88.) He saw her numerous times over the next nine years, including six times in 2000 and five times between January 1, 2001 and July 2, 2001. (Ex. 7 at 20-43 and exhibits to Weinert Dep.)
¶17 Dr. Weinert saw claimant on June 26, 2001, just a week prior to the July 2nd incident. His office note for that date is found in the exhibits to his deposition but does not appear to have been included in the exhibit notebook proffered at trial. Insofar as the cervical spine, the note reflects his prior diagnosis of "C-5-6 and C6-7 disk disease" as demonstrated by x-ray. (Weinert Dep. Ex. 11, June 26, 2001 office note.) On June 26th claimant reported "arm numbness" and that "her neck and arm symptoms are getting worse." (Id.) His impression was "[i]ncreased neck pain and symptoms of arm numbness of uncertain etiology. Rule out cervical disk herniation." (Id.) He ordered an MRI of the neck. (Id.)
¶18 Dr. Weinert's records reflect prior reports of arm or hand numbness and pain. For example, in February 1999 she was complaining of bilateral hand numbness and an EMG was done to rule out carpel tunnel syndrome. (Ex. 7 at 73.) On August 30, 1999, she complained of right arm and hand numbness. (Ex. 7 at 52.) A comprehensive review of her arm and hand complaints is unnecessary and is not undertaken here.
¶19 In any event, claimant returned to Dr. Weinert on July 5, 2001, which was three days after the work-related incident. On that date the claimant complained of "right lower rib pain, which is worse with deep breathing," as well as left low back pain. (Id. at 18.) These complaints were consistent with what she reported to the ER physician on July 2nd. In addition, she complained of neck pain "with bilateral arm numbness and tingling digits four and five." (Id.) Dr. Weinert noted that he had already scheduled an MRI of her neck for the next day, July 6th. (Id.) Insofar as the July 2nd incident is concerned, he noted, "Exacerbation of preexistent fibromyalgia with cervical, thoracic and lumbar region myofascial region pain, secondary to work injury of 7-2-01." (Id. at 19.)
¶20 The MRI was done on July 6th as scheduled. It disclosed
(Id. at 14.)
¶21 On July 11, 2001, when claimant next saw Dr. Weinert, she was continuing to complain of arm numbness. (Id.) He noted the MRI results and ordered an EMG and nerve conduction studies. (Id. at 15.) He also referred her to Dr. Rizzolo "regarding her significant cervical spinal stenosis evidenced on MRI." (Id.)
¶22 Dr. Rizzolo saw claimant on August 15, 2001. (Ex. 9.) The exhibit notebook contains his office note for that date (which appears incomplete), a note dated September 7, 2001, and his September 7 and September 31 [sic], 2001 letters to Royal Insurance's claims adjuster. (Id.) Lacking are Dr. Rizzolo's other medical records, including his operative report, although the operative report was available to Dr. Weinert during his deposition. (Weinert Dep. at 11.)
¶23 Dr. Rizzolo's assessment of claimant's neck condition on August 15th was "[c]ervical spinal stenosis with myelomalacia" and "[p]robably early myelopathy correlating with her stenosis." (Ex. 9 at 9.) "Myelomalcia is a condition where there's actual loss of neurologic elements; in other words, there is atrophy or thinning of the [spinal] cord." (Weinert Dep. at 24.) As noted earlier, Dr. Rizzolo thereafter (August 27, 2001) operated on claimant's neck.
¶24 Dr. Rizzolo was asked for his opinion of the relationship between claimant's cervical condition and surgery and her July 2nd accident. On September 7, 2001, he reviewed at least some of her medical records from Dr. Weinert. (Ex. 9 at 5.) Noting that claimant had been scheduled for an MRI prior to July 2nd he wrote, "The question that arises is whether or not the myelomalacia that was seen on her study of 7/6/01 was caused by her injury on 7/2 or whether it was a preexisting condition." (Id. at 6.) He demurred to Dr. Weinert for an opinion, writing:
¶25 As noted earlier, on September 6, 2001, Dr. Weinert wrote to Royal Insurance's claims adjuster, opining that claimant's condition and surgery were not related to the July 2nd incident and that the incident merely "caused a slight aggravation of her symptoms." (Ex. 7 at 17.) His full letter reads as follows:
¶26 Dr. Rizzolo reviewed Dr. Weinert's letter and concurred, writing:
(Ex. 9 at 4.)
¶27 In his deposition, Dr. Weinert testified that neck surgery would have been required absent the July 2nd incident. (Weinert Dep. at 28.) He noted that pre-July 2nd the claimant had significant stenosis which put her at risk for spinal cord injury. (Id. at 27.) He was asked whether the July 2nd incident aggravated her condition and indicated that she did suffer some increased pain following the incident. (Id. at 32.) When asked further about the aggravation, he testified as follows:
(Weinert Dep. at 27-28, 32-33.)
¶28 Dr. Weinert did take claimant off work following the July 2nd incident. He did so on account of her spinal stenosis. (Weinert Dep. at 30.) He was asked if the July 2nd incident "changed her fibromyalgia condition in any way?" He replied that it did not. (Id. at 29.)
¶29 Claimant presented no medical evidence showing that her July 2nd incident materially aggravated her underlying neck condition or caused or materially accelerated her need for surgery. She presented no medical evidence that she was taken off work, or needed to be taken off work, following the July 2nd incident for any reason other than her spinal stenosis.
¶30 This case is governed by the 2001 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).
¶31 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).
¶32 Claimant must show that her medical care and her disability are causally related to her July 2, 2001 incident. "Causation is an essential element to benefit entitlement." Hash v. Montana Silversmith, 256 Mont. 252, 257, 846 P.2d 981, 983 (1993); and see Caekaert v. State Compensation Mut. Ins. Fund, 268 Mont. 105, 112, 885 P.2d 495, 499 (1994). Section 39-71-704, MCA (2001), which governs medical benefits, provides in relevant part:
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:
Section 39-71-701, MCA (1997), which governs temporary total disability benefits, provides in relevant part:
¶33 In the present case the claimant has failed to show that her surgery or disability are consequences of her July 2, 2001 incident. The insurer has shown that her underlying, preexisting cervical stenosis caused both the surgery and her disability. Claimant was already on a downward slide symptomatically prior to the July 2nd incident, and her surgery was inevitable. Other than to somewhat increase her existing symptoms, Dr. Weinert was unable to say whether the July 2nd incident contributed to her condition and claimant has offered no medical evidence showing on a more probable than not basis that the incident materially altered the course of her care and disability. She has further failed to prove that the incident caused or aggravated any other condition which was disabling or requires additional medical treatment.
¶34 The claimant is not entitled to temporary total disability benefits on account of her July 2, 2001 industrial accident. She is also not entitled to further medical benefits. Her petition is dismissed with prejudice.
¶35 Claimant is not entitled to costs.
¶36 This JUDGMENT is certified as final for purposes of appeal.
¶37 Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
c: Ms. Pamela
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