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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
STATE COMPENSATION INSURANCE FUND
SEA TRUCKING COMPANY
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: 63-year old truck driver fell and hit his head, shoulder, and lower back. Insurer accepted liability, but terminated TTD benefits when a physician released claimant to return to work. Claimant alleged permanent total disability.
Held: No medical testimony was presented, but medical records indicate claimant exaggerated his symptoms and failed to cooperate with medical testing and examination. His in-court testimony about his pain and limitations was not credible. While claimant unquestionably suffers from osteoarthritis, there was no objective medical evidence that he could not return to work in identified jobs. While it is possible claimant suffers genuine neck and low-back pain, his invalid responses during IME and FCE testing, his questionable responses during other medical examinations, and his behavior in Court make it impossible for the WCC to determine the true nature of his pain and disability. TTD benefits properly terminated; claimant is not PTD.
¶1 The trial in this matter was held on May 10, 1999, in Helena, Montana. Petitioner, Eric Johnson (claimant), was present and represented by Mr. John C. Doubek. Respondent, State Compensation Insurance Fund (State Fund), was represented by Ms. Carrie L. Garber. A transcript of the proceedings was not prepared.
¶2 At the close of trial the Court provided both parties with an opportunity to file proposed findings of fact and conclusions of law. The last filing was received May 25, 1999, at which time the case was deemed submitted.
¶3 Witnesses and Depositions: Claimant and Pat Hunt testified. No depositions were submitted.
¶4 Exhibits: Exhibits 1 through 5 and 7 through 28 were admitted without objection. Exhibit 6 was withdrawn.
¶5 Issues: The issues, as set forth in the Pretrial Order, are as follows:
¶6 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the parties' proposed findings of fact and conclusions of law, the Court makes the following:
¶7 Claimant is presently 63 years old. He has an eighth grade education.
¶8 In his early working years, claimant worked odd jobs and repaired machinery. At approximately age 40 he began truck driving. He initially drove moving vans and then regular freight.
¶9 From 1976 to 1996 the claimant worked for Johnson Trucking, which is located in Washington. (Ex. 21 at 21.) In early 1996 he went to work for SEA Trucking Company (SEA) as a long-haul truck driver. (Id. and see Ex. 19 at 2.)
¶10 On May 4, 1996, claimant was injured while driving for SEA. He was putting water into the radiator of the truck when he fell and hit his head, shoulder, and lower back.
¶11 At the time of the accident, SEA was insured by the State Fund. A claim was submitted and the State Fund accepted liability and paid medical and temporary total disability (TTD) benefits for a time. The TTD benefits were terminated with a 14-day notice issued October 8, 1996, after Dr. Matthew J. Gambee released the claimant to return to work. (Ex. 20 at 15; Ex. 24 at 2.)
¶12 In this proceeding the claimant alleges that his TTD benefits were wrongfully terminated and should be reinstated retroactively. He also asks that the Court determine that he is now permanently totally disabled.
¶13 No medical testimony has been presented by either party and the Court is left to sift through medical records and determine medical issues based on what appears in the records. However, in light of the subjectivity of claimant's complaints, and the relative lack of objective medical evidence consistent with the claimant's complaints, the Court must also consider the credibility of claimant's reports concerning his symptoms. Throughout his medical records there are indications that he has exaggerated symptoms and failed to cooperate in medical testing and examination.
¶14 Claimant was initially seen at the emergency room of St. Patrick Hospital in Missoula, Montana, on the afternoon of May 4, 1996. He was diagnosed as suffering cervical spine strain and mild lumbar strain, discharged and told to return to work. (Ex. 18 and Ex. 22 at 7.)
¶15 At time of the accident, claimant was living in Husum, Washington, not Missoula, Montana. Following the ER visit at St. Patrick Hospital in Missoula, he returned home to Husum, went to the local ER and was referred to Dr. Kimberly K. Stutzman (ex. 22 at 7), who thereafter treated him (exs. 3, 8, 9, 11, 13, and 22).
¶16 Dr. Stutzman is a family practitioner. (See Exs. 9 and 11.) Other information concerning her medical credentials has not been provided to the Court.
¶17 Dr. Stutzman first examined claimant on May 9, 1996. At that time, claimant was complaining of pain in his neck and limited ability to turn his head, tingling in his upper thighs when driving, a "somewhat numb sensation in the back of his legs," lumbar back pain, and pain in both achilles tendon areas. (Ex. 22 at 7.) Upon examination, she found reduced range of motion both in the low back and neck. She diagnosed "[c]ervical strain/lumbar strain." (Id.)
¶18 Dr. Stutzman continued treating claimant over the next two months. Her office notes record his primary complaints as continuing neck pain, some headaches, and difficulty sleeping. Her physical examinations disclosed paracervical muscle spasm, primarily on the left. (Ex. 22 at 3-6.)
¶19 Noting claimant's minimal improvement, on June 27, 1996, Dr. Stutzman decided that claimant should be referred to a specialist and that an MRI might be appropriate. (Ex. 22 at 3.) She referred him to Dr. Matthew J. Gambee, a physiatrist (physical and rehabilitation medicine). [Listed as "Dr. Gandy" in FAX note.] (Ex. 22 at 2.) Dr. Stutzman sought the aid of the State Fund in lining up the consultation. (Id.)
¶20 Dr. Gambee initially saw claimant in mid-July 1996 (see exs. 10, 23 and ex. 24), but the Court has not been furnished with the records of that visit. Dr. Gambee thereafter saw claimant on August 20, 1996, on which date he reported:
(Ex. 24 at 3.) He diagnosed chronic neck and low-back pain and ordered an MRI scan of the neck. (Id.)
¶21 Meanwhile, in July and August the claimant was seen in office visits by Drs. Thomas Heston and Joseph Sofianek. (He was also seen in the emergency room with respect to a foot injury.) He saw Dr. Heston on July 23, 1996. (Ex. 23.) Other information about Dr. Heston and his medical association is lacking as the Court has been furnished with just his bare office note. The note is for "[b]ack pain followup" and records that claimant "has been doing about the same since his last visit," so it may be that Dr. Heston was associated with Dr. Stutzman's medical group of family practitioners even though his name does not appear on the group letterhead stationary. (See Exs. 9 and 11.) In any event Dr. Heston noted bilateral paracervical muscle spasm, along with thoracic muscle pain. (Ex. 23.)
¶22 Dr. Sofianek saw claimant on August 26, 1996. (Ex. 10.) A handwritten notation on his office note indicates that he was a medical resident working under the supervision of Dr. Raymond J. Fitzsimmons. Dr. Fitzsimmons is part of Dr. Stutzman's family practice group. (See Exs. 9 and 11.)
¶23 Dr. Sofianek recorded that claimant was complaining of vague pain in his right arm and occasional headaches in addition to his back and neck pain. He noted that cervical and lumbar x-rays disclosed osteoarthritis and that a recent lumbar MRI was essentially normal. (Ex. 10.) He found cervical muscle spasm. Also of interest, he reported:
(Id.) Dr. Sofianek found no indications of cervical radiculopathy and his assessment of claimant's condition was cervical pain due to an exacerbation of his underlying osteo-arthritis and mechanical low-back pain also related to osteoarthritis. (Id.)
¶24 On September 17, 1996, Dr. Stutzman again saw claimant. Her office note reports that claimant's cervical pain "[n]ow seems to be almost more of muscular pain" and that he was "no longer having difficulty with his lumbar back and really did not feel that this was his major problem." (Ex. 22 at 1.)
¶25 On September 26, 1996, Dr. Gambee examined claimant a final time and reviewed MRIs of the neck and lumbar spine. (Ex. 24 at 5-6.) The lumbar MRI was normal. The cervical MRI disclosed the degenerative changes (osteoarthritis) seen on plain x-rays and a moderate bulging C3-4 disk but no disk herniation or cord compression. (Id.) Dr. Gambee noted that claimant demonstrated significant limitation of motion in both his neck and low back but went on to say that he also exhibited "pain behavior" and had positive Waddell's tests. (Id.) He diagnosed cervical spondylosis and chronic neck and low-back strain. (Id.) He then recommended that claimant return to work:
(Id.) The return-to-work suggestion brought an angry response. Dr. Gambee noted: "He was angry and resistant to the idea of returning to work." (Id.)
¶26 On October 9, 1996, Crawford and Company, which the State Fund had employed to perform a vocational analysis, forwarded Dr. Gambee three job analysis for his review. (Ex. 21 at 62-63.) They were for motor vehicle dispatcher, parts clerk, and flatbed truck driver. (Id. at 62-81.) Dr. Gambee approved all three in October 1996. (Ex. 21 at 34-35.)
¶27 On October 28, 1996, Dr. Stutzman also released claimant to return to work in a full light-duty job. (Ex. 11 and 13.) She restricted his lifting to no more than 20 pounds, his driving to "no more than 3 hours at a time" and his sitting to "no more than four hours at a time." (Id.) She was skeptical that claimant could return to his "previous job of driving a logging truck" (ex. 13), but that was not the job claimant held when injured.
¶28 None of the three jobs approved by Dr. Gambee were light duty or less. The dispatcher position was classified as medium, the other two jobs as heavy. (Ex. 21 at 41, 47, 53.)
¶29 On November 25, 1996, Dr. Stutzman recommended an independent medical examination (IME). In her office note, she wrote:
(Ex. 8.) She also wrote claimant's attorney, Mr. John C. Doubek, a letter, repeating her recommendation. (Ex. 9.) In apparent response to questions raised by Mr. Doubek concerning the appropriateness of a physiatrist treating claimant [Dr. Gambee is a physiatrist], she wrote:
¶30 The IME was set up by the State Fund and done on December 13, 1996, by Dr. Gerald R. Reimer, a neurologist, and Dr. Donald A. Peterson, an orthopedic surgeon. (Ex. 26 at 8.) At the time of the IME, claimant's chief complaints were as follows:
(Id. at 2.) The doctors performed a physical examination. In their report they noted:
(Id. at 5.) With respect to cervical motion, they noted:
(Id. at 6.) They further commented:
(Id. at 5.)
¶31 Drs. Reimer and Peterson reviewed claimant's x-rays and MRIs for both the neck and low back. (Id. at 6-7.) They found no evidence of disk herniation. They did find degenerative spondylosis of the neck. Spondylosis is a general term referring to "any of various degenerative diseases of the spine." (Mirriam-webster Medical Dictionary on line at www.medscape.com.) That finding is consistent with the prior finding of multi-level osteoarthritis of the spine. The doctors noted that the condition was preexisting and unrelated to claimant's injury.
¶32 The doctors addressed MMI, further treatment, physical restrictions, and return to work:
(Ex. 26 at 7-8.)
¶33 In January 1997, Dr. Reimer reviewed job descriptions and addressed permanent impairment. With regard to the latter he said:
(Ex. 27.) He approved job analysis for vehicle dispatcher, parts clerk, flatbed truck driver, and van driver. (Ex. 21 at 30.) Van driver was the title of claimant's time-of-injury job. (Ex. 21 at 84-92.)
¶34 Claimant saw Dr. Stutzman again on four occasions in 1997. In January the doctor recorded that he had improved and that it was safe for him to start back to work but noted she did not have the IME results. (Ex. 3 at 1.) In February, her comment was the same except she restricted him to light duty and four hours a day. She again indicated she did not have the IME results. In March she indicated that further improvement was unlikely and suggested closure of his claim. (Id. at 2.) In April she noted that further therapy was unlikely to benefit him. (Id. at 3.)
¶35 In October 1997 the claimant sought a further consultation with Dr. J. Bruce Bell. Dr. Bell noted that he had been released to return to work
(Ex. 5 at 1.) The doctor reviewed claimant's prior MRIs and noted "extensive degenerative disk disease with significant spinal stenosis" in the neck. (Id. at 2) His impression was that claimant had underlying disk disease of the neck and low back that was "fairly well compensated" until his accident. (Id.) Concerning a return to work, he noted:
¶36 Dr. Bell did not review job descriptions, therefore, he did not comment on clamant's ability to work as a dispatcher or parts clerk.
¶37 On September 24, 1998, claimant underwent a functional capacity evaluation (FCE). (Ex. 4.) The FCE report is replete with evidence that claimant did not fully cooperate in the evaluation. Ultimately the evaluator deemed the FCE results invalid. The following information is from the report:
(Id. at 1.)
(Id. at 2.)
(Id.) Regarding strength testing:
(Id. at 2-3.) Regarding functional abilities testing:
(Id. at 3.) Concerning grip strength:
(Id. at 4.) In his summary, the evaluator summarized his findings concerning the validity of the test:
(Id. at 1.)
¶38 Claimant also claims that he has high blood pressure from his accident. His claim is based on his report that he did not suffer from hypertension prior to the accident but does so now. He has provided no medical support for his assertion or to show that his hypertension is disabling.
¶39 The only vocational evidence presented in this case was developed by Crawford and Company, which identified automotive parts clerk, motor vehicle dispatcher, flatbed truck driver, and claimant's time-of-injury truck driving job as jobs for which claimant is qualified. (Ex. 21.) Claimant presented no vocational evidence to the contrary nor did he show that he has no reasonable prospect of securing employment in any of the jobs.
¶40 Claimant testified that he cannot work on account of his ailments. His complaints include:
¶41 Claimant testified at trial that he used his best efforts during the FCE, and indeed during all medical examinations. His testimony was not credible.
¶42 During trial, claimant initially demonstrated very little movement of his head. When he turned to address the Court, he did so by rotating his entire upper torso without turning his head. However, during cross-examination he evidenced far greater movement. When counsel handed claimant documents from the side, claimant turned his head 90 degrees to address counsel, without any apparent pain or restriction.
¶43 Claimant has failed to persuade me that he cannot go back to his time-of-injury job or to one of the alternative occupations identified as within his job market. While he unquestionably suffers from osteoarthritis of the spine, there is no objective medical evidence indicating that his physical condition precludes him from returning to work as a truck driver, dispatcher, or parts clerk. His claimed disability rests on his subjective complaints. The medical records, as well as this Court's observation of him during trial, indicate that his reports are not credible. It is certainly possible, if not probable, that claimant suffers genuine neck and low-back pain and other symptoms on account of his industrial accident and underlying osteoarthritis, but based on his invalid responses during the IME and FCE testing, his questionable responses during other medical examinations, and his behavior in Court, I am unable to determine the true nature and degree of his pain and disability.
¶44 I am also unpersuaded that the claimant's TTD benefits were prematurely terminated. The State Fund based its termination on Dr. Gambee's evaluation. Dr. Stutzman, a family practitioner, referred claimant to Dr. Gambee because he specializes in "rehabilitation of injuries and problems including the gamut of musculoskeletal and neurologic injuries." (Ex. 9.) Her referral indicates that she believed Dr. Gambee to be better qualified to evaluate and treat claimant's condition. Dr. Gambee found that claimant would not benefit from further evaluation and treatment. That finding satisfies the definition of MMI, which is:
§ 39-71-116(17), MCA (1995). Dr. Gambee approved claimant's return to work in three jobs identified by a vocational consultant.
¶45 The State Fund did not act unreasonably in terminating claimant's TTD benefits or in refusing claimant's request for permanent total disability benefits.
CONCLUSIONS OF LAW
¶46 Claimant's entitlement to benefits is governed by the 1995 Workers' Compensation Act, which was the law in effect at the time of his industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶47 Claimant bears the burden of persuading me, by a preponderance of the evidence, that he is entitled to benefits. See Ricks v. Teslow Consolidated, 162 Mont. 469, 483-84, 512 P.2d 1304 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 201, 598 P.2d 1099 (1979). He has failed to carry his burden.
¶48 His PTD claim is governed by section 39-71-702, MCA (1995), which provides in relevant part:
Section 39-71-116(23), MCA (1995), defines permanent total disability:
Claimant bears the burden of persuading me that he meets the above definition. He has not carried his burden. His case for disability is ultimately based on his subjective reports of pain and other symptoms. I have found those reports not credible.
¶49 Claimant has similarly failed to carry his burden with respect to his claim for additional TTD benefits. Eligibility for TTD benefits is governed by section 39-71-701, MCA (1995), which provides in relevant part:
I have found as a matter of fact that claimant reached maximum healing on September 26, 1996, which is prior to the termination of his benefits.
¶50 Claimant is not entitled to attorney fees or a penalty. Both require proof that the insurer has unreasonably delayed or refused benefits. §§ 39-71-611, -612, 2907, MCA (1993). The insurer's conduct was reasonable.
¶51 Since he has not prevailed, claimant is not entitled to costs.
¶52 1. Claimant is not entitled to PTD benefits or to additional TTD benefits. His petition is dismissed with prejudice.
¶53 2. Claimant is not entitled to attorney fees, a penalty, nor costs.
¶54 3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶55 4. 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 20th day of August, 1999.
c: Mr. John C. Doubek
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