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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2001 MTWCC 14
WCC No. 2000-0041
LIBERTY NORTHWEST INSURANCE CORPORATION
JOEL BOS, d/b/a BOS TOP DAIRY
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary of Case: Claimant allegedly injured his neck, left arm, and head in a fall from a ladder which was attached to a large milk tank. The insurer initially accepted liability and paid medical and temporary total disability benefits. It ceased paying TTD benefits when claimant dropped out of a work-hardening program after one day and an IME physician reported him at MMI. The Department and the Court then entered an order requiring the insurer to pay 49 days of benefits pursuant to section 39-71-610, MCA. Meanwhile, the insurer alleged that the claim was fraudulent in that the accident was staged.
Held: Claimant is not credible and has a long history of what he claims to be debilitating headaches. At the time of the alleged accident he had been fired by a previous employer a month previous, allegedly on account of loss of work due to headaches, and was actively attempting to get a prescription for narcotic drugs from his physician. He had also been told that his employment at the dairy was not likely to last. He has a previous history of drug abuse, and following the alleged accident obtained additional narcotic and barbiturate drugs by telling his physician that one narcotic was not working, that his drugs had been stolen or flushed down the toilet, that the pharmacy never filled his prescription, and other similar stories. Coworkers' testimony about conversations with claimant on the day of the alleged accident, as well as the accident scene itself, raise significant questions as to whether the accident in fact occurred. Except for a superficial cut on his hand, there was no objective evidence of any injury. The Court finds that the accident did not occur and further finds that even if it did happen, he reached MMI by the time his benefits were cut off. Recommendations by the treating physician of further physical therapy are unpersuasive as claimant's medical records demonstrate he has been non-compliant in previous PT attempts. Other recommendations for treatment are either refuted by the IME doctor, who testified, or have been tried and provided little relief.
¶1 The trial in this matter was held on September 6, 2000, in Bozeman, Montana. Petitioner, Aubrey Schneider, (claimant), was present and represented by Mr. Geoffrey C. Angel. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. A trial transcript has not been prepared.
¶2 Exhibits: Exhibits 1 through 3, 5, and 15 were admitted without objection. Pages 156 and 157 of Exhibit 1 are missing in the exhibit notebook, however the intended pages are found in Exhibit 1 to Dr. Ross' deposition. Exhibit 4 was withdrawn. Exhibit 6 was admitted for impeachment purposes only and over Mr. Angel's confidentiality objection. Exhibits 9 (page 1, lines 22-26, page 2, lines 1and 2) and 14 (page 6, lines 8 through 23 only) were admitted over objections but were admitted only for impeachment purposes. Exhibits 7, 8, and 10 through 13 were refused. Proposed Exhibit 16, which was to be prepared by Mr. Angel, was never submitted.
¶3 Mr. Angel objected to respondent's contentions in the Final Pretrial Order which concern prior criminal convictions and bad acts. The Court will disregard those contentions in accordance with its ruling on the motion in limine.
¶4 Witnesses and Depositions: The parties agreed that the depositions of Scott K. Ross, M.D., Robert A. Jackson, M.D., and Aubrey Schneider of May 10, 2000, (Schneider Dep. I,) and June 13, 2000, (Schneider Dep. II,) shall be considered by the Court. Claimant, Merle Joseph Ferrier and Scott VanDyke were sworn and testified.
¶5 Issues Presented: The issues, as stated in the Final Pretrial Order, are as follows:
¶6 Having considered the Final Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
¶7 At the time of trial, claimant was 43 years old. In the 25 years since graduating from high school he has worked in a number of jobs, including work in the oil fields and on power lines, farming, and guitar manufacturing.
¶8 Over the years, claimant has suffered a number of injuries, including numerous work-related injuries, nine of which are documented. He has undergone back and neck surgeries. The latest surgery was 1996, when he underwent a C6-7 anterior cervical diskectomy and fusion. (Ex. 1 at 181.)
Medical History and Preexisting Medical Conditions
¶9 I begin these findings of fact with an overview of the claimant's prior medical history and preexisting medical conditions. The overview is limited to claimant's back, neck, and headaches. The overview is important in evaluating claimant's complaints following his alleged injury and in evaluating his credibility.
¶10 In 1989 claimant was injured in an automobile accident and underwent a diskectomy, apparently at the lumbar level, which left him with a 10% impairment rating. (Ross Dep. Ex. 3 at 2.)
¶11 On September 27, 1995, claimant injured his neck and upper shoulder girdle when attempting to lift a heavy steel cabinet while working for Gibson Guitar. (Ex. 1 at 58, 64, 110.) He subsequently returned to work with no restrictions (id. at 55), however, he re-injured himself on February 19, 1996, while moving a fully-loaded guitar rack (Id. at 64, 111). An MRI of the cervical spine was remarkable for a C6-7 protrusion. (Id. at 110.) After a protracted course of physical therapy and multiple medications, including narcotic analgesics, in May 1996 he underwent a C6-7 anterior cervical diskectomy with fusion and a decompression of the left C7 nerve root. (Id. at 110, 181.) He was subsequently found to also have a stress fracture of the spinous process of C7. (Id. at 181.)
¶12 Although he continued to have residual chronic headaches, Dr. Robert Jackson, who is claimant's family physician, placed claimant at maximum medical improvement (MMI) as of February 12, 1997. (Id. at 130, 182.) On March 10, 1997, Dr. Eugene J. Dolan, the neurosurgeon who operated on claimant, placed him at MMI in relation to his neck injury and restricted him to intermittent lifting of 20-40 pounds. (Id. at 177-78.) Dr. John Vallin, a physiatrist, conducted an independent medical examination (IME) on November 12, 1996, and placed him at MMI at that time. (Id. at 110-11.) Dr. Vallin rated claimant with a 5% whole person impairment pertaining to his cervical disk fusion and subsequent diskectomy and a 5% whole person impairment regarding his upper extremities. (Id. 110-12.) On March 10, 1997, Dr. Thomas L. Schumann evaluated claimant at Dr. Dolan's request and assigned him a 15% whole person impairment per the AMA guides. (Id. at 182.)
¶13 After recovering from his 1997 cervical diskectomy and fusion, claimant continued to experience severe headaches. Dr. Jackson testified that the history of headaches went back to at least 1994. (Jackson Dep. at 6.)
¶14 Dr. Jackson's record documents severe headaches during the six months preceding the alleged accident at issue in this case.
(Id. at 26.)
History of the Present Claim
¶16 On or about March 9, 1999, claimant went to work as a probationary employee at Bos Top Dairy ("Bos"), which is a dairy farm.
¶17 Claimant alleges that on March 14, 1999, while working at Bos, he fell off a ladder attached to a milk tank and injured his neck, shoulder, back, and left hand. His primary complaints since the alleged accident are severe headaches and pain in his neck, shoulders, arm, and back.
¶18 At the time of the alleged accident, Bos was insured by Liberty, which accepted liability for the claim. Liberty thereafter paid temporary total and medical benefits.
¶19 In July of 1999, Liberty referred claimant to Dr. Scott Ross, a physician specializing in occupational medicine. Dr. Ross prescribed a work-hardening program. Claimant began the program on September 20, 1999, but after one day of the program he declined to continue. Dr. Ross then found him at MMI. Based on that finding, on December 22, 1999, Liberty terminated claimant's temporary total disability (TTD) benefits.
¶20 Claimant did not return to work at Bos. He did not become employed again until three or four weeks prior to trial, when he took a job with Metra RV in Billings. He works at Metra RV 25 to 30 hours a week.
¶21 This action followed the December 22, 1999 cutoff of benefits. The petition, docketed March 3, 2000, seeks payment of further compensation and medical benefits.
¶22 Shortly after the filing of the petition, Liberty appealed a decision of the Department of Labor and Industry (Department) ordering it to pay claimant 49 days of TTD benefits under section 39-71-610, MCA (§ 610). That appeal was made a part of this action. Initially, the Court ruled in Liberty's favor, however, upon reconsideration and after receipt of a further medical report supporting claimant's allegation that he has not reached MMI, the Court affirmed the Department's decision and ordered Liberty to pay the section 610 benefits. (Further Order Regarding Section 39-71-610, MCA, Benefits (June 7, 2000).)
¶23 Liberty contends that claimant has reached MMI and is not entitled to further benefits. While not raised in its initial Response To Petition For Hearing, in subsequent notices regarding its contentions in this case, Liberty alleged that the claim in this case is fraudulent. In its second notice, Liberty affirmatively alleged, inter alia:
(Respondent's Second Notice of Additional Contentions, Witnesses and Exhibits at 1 (docketed July 7, 2000).) In a fourth notice, Liberty made its fraud allegations more specific. It alleged:
(Respondent's Fourth Notice of Additional Contentions, Witnesses and Exhibits at 3 (docketed July 10, 2000).) It went on to allege that the accident was faked so that claimant could obtain narcotic drugs:
(Id. at 2.)
¶24 As set forth in the Final Pretrial Order, the fraud issue has been condensed by the parties into the broad question, "Whether Gene Schneider suffered an industrial accident on March 14, 1999?" (¶5.)
¶25 Other than the section 610 benefits, Liberty is not seeking reimbursement for benefits already paid; it only seeks to avoid payment of further benefits.
The Alleged Accident¶26 The alleged accident at Bos was unwitnessed. Claimant testified that at about 8:30 a.m., on March 14, 1999, he was standing on a ladder attached to one of the milk tanks and was attempting to hook up pipes when he fell. (Schneider Dep. I at 5-9. ) He testified in his first deposition that he was reaching for the pipes and leaning back when his foot gave out and slipped, and that there was nothing to catch onto to stop his fall. (Id.; Schneider Dep. II at 39; Ex. 1 at 154, emphasis added.) He testified he hurt his shoulder area, his head, his left hand, and the left side of his face.
¶27 In various statements to physicians, claimant maintained that he fell ten feet. Dr. Robert A. Jackson, who had been treating him prior to the alleged accident, recorded on March 15, 1999, the day after the alleged accident, that claimant called him and reported "he fell about ten feet off the back of a tank truck, landed on his left side." (Ex. 1 at 25, emphasis added.) Dr. Kofman's May 7, 1999 note states that claimant reported "he slipped and fell 10'." (Id. at 144.) Dr. Speth recorded on May 4, 2000, that claimant reported he "had fallen 10' from a ladder . . . ." (Ex. 2 at 1.) Dr. Vallin's note of May 30, 2000, states that claimant "fell 10 feet off a ladder." (Ex. 3 at 1.) Dr. Ross' note of July 30, 1999, states that claimant reported he "fell a distance of approximately 10 feet . . . ." (Ross Dep., Ex. 1 at 1.)
¶28 At his second deposition on June 13, 2000, the claimant was shown photos of the milk tanks and ladder where the accident allegedly occurred. (Schneider Dep. II at 21-24, 40.) Claimant, however, denied that the photos were of the accident site, asserting that "[s]omething doesn't look right about these pictures, and I don't know what it is." (Id. at 40.) Referring to the ladder which is shown in the photos, he further testified, "This is not the ladder I fell from, none of these I just seen here. There was more steps. I couldn't have reached from here. I'm too short." (Id. at 23, emphasis added.) He further testified that "the one [ladder] I was using I know had another step because I was almost to the ceiling." (Id. at 24.)
¶29 Upon cross-examination at trial, claimant conceded that the photos shown to him in his deposition were in fact of the tank and ladder from which he claims to have fallen. Presented with the physical measurements shown in the photos, he conceded that the step from which he allegedly fell was only 40 inches off the ground, which is a far cry from the 10 feet from which he initially claimed. When asked to explain his numerous statements that he "fell 10 feet" when he only actually fell only 3 ½ feet, claimant testified, "[I]f you take my height into consideration . . . I just figured I fell about 8 or 10 feet from the top of my head. The way I fell would be about 8 feet all the way down." (Trial Test.) I am unpersuaded by his explanation.
¶30 Claimant's description of his fall is also troublesome. He told some of his medical providers that when he fell he landed on the left side of his body. (Ex. 1 at 25, 154; Ross Dep., Ex. 1 at 1; Ex. 2 at 1; Ex. 3 at 1.) However, he also told at least one medical provider (Dr. Kofman) that he "fell backwards" (ex. 1 at 144) and testified at trial that he was "leaning back" on the ladder when he slipped and fell. Most significantly, claimant denied hitting the wall, any part of the ladder or anything else before hitting the floor. (Schneider Dep. I at 7; Trial Test.)
¶31 The photos of the alleged accident scene shows that the distance between the step on which claimant was standing and the wall was 30 ½ inches. (Schneider Dep. II, Dep. Exs. 1-4.) While I do not consider the physical measurement and characteristics of the accident scene absolutely incompatible with claimant's description of the accident, the constricted space where the alleged fall occurred, the existence of a side rail on the ladder, and claimant's statements that he was leaning "back" when he fell, make it difficult to envision that claimant could have fallen without any part of his body striking the wall behind him.
¶32 The testimony of coworkers also raise questions concerning claimant's credibility and whether in fact he was injured in an industrial accident. Merle Ferrier (Ferrier) worked the night shift and was finishing up his work on the morning of claimant's alleged accident. Ferrier testified he saw claimant when returning from feeding calves. According to Ferrier, claimant was sitting down on a five-gallon bucket, holding his head, and moaning, however, Ferrier did not see any cuts, scrapes, or blood while standing less than three feet from claimant. When Ferrier asked claimant what had happened, claimant told him that he had fallen from the milk tank when trying to hookup the line above. Ferrier testified that at one point during this first conversation, claimant stated, "You don't believe me."
¶33 Ferrier left for about 15-20 minutes to complete some additional work and then returned to the milk tank area. There he saw claimant again and they talked. (Trial Test.) Ferrier testified that claimant then showed him his right hand with a couple of scrapes on the top of the hand, and that he told Ferrier he had broken his watch when he fell. He was certain that it was claimant's right hand that was bleeding slightly. (Id.) Ferrier saw the broken crystal on the ground, but did not remember seeing any broken watch. (Id.)
¶34 Claimant testified at trial that he did not recall talking to Ferrier at all and in fact did not even recall Ferrier working at Bos. After listening to Ferrier and claimant, I am unpersuaded by claimant's testimony. I found Ferrier the far more credible witness.
¶35 Scott VanDyke (VanDyke), claimant's supervisor at Bos, testified that on the morning of March 14th, Ferrier came out from the milk tank area and told him that "Gene says he fell off the tank and hurt his neck." VanDyke went into the barn and asked claimant if he was all right. Claimant replied that his "neck hurts pretty bad. I hope I didn't break it again." (Trial Test.) Claimant also told VanDyke that his arm was numb and he could not feel it. He then showed VanDyke "his arm which had a little blood on it and his broken watch." (Id.) VanDyke stated that claimant "had some superficial cuts on his right arm . . . or his right hand." (Id.) VanDyke also said that claimant kept asking him if he had a bruise on his face, but he saw only "a little red mark. . . which looked like he had been hit by an "elbow in the face" although the "skin was not broken." (Id.) He testified that this mark was on the right side of claimant's face.
¶36 VanDyke testified that claimant asked if Bos had Workers' Compensation. VanDyke suggested to claimant that he go see a doctor to find out how bad he was hurt first and that Bos would pay for it. Claimant's response was: "Let's do this by the book." (Id.) VanDyke testified that they then went upstairs to the office to get the workers' compensation phone number from the poster. They looked at the list of doctors approved to treat work-related injuries and Dr. Jackson, a physician already treating claimant, was on the approved list.
¶37 Testimony concerning claimant's prospect for continued employment at Bos was also conflicting. Claimant testified that VanDyke told him "he caught on fast" with his work. Claimant asserted that within a week he expected to move into a house on dairy property which the dairy provided to permanent workers. VanDyke contradicted the testimony. He testified that claimant was not catching on to the job and had poor performance. The day before the accident he told claimant that "this might not be the job for him." According to VanDyke, claimant acknowledged that he was kind of feeling the job was not right for him but asked for a chance to keep trying. Claimant said, "Let me try it tomorrow and I'll give 100%." (Trial Test.) "Tomorrow" was the day of the alleged accident.
Subsequent Medical Treatment
¶38 Claimant contacted Dr. Jackson, his family physician, on March 15, 1999, the day following his alleged accident. Claimant reported that he had fallen 10 feet, landing on his left side, and that "[h]e had an immediate, severe headache and remembers bumping his head." (Ex. 1 at 25.) Of interest to the Court in evaluating this case is the fact that claimant obtained a prescription for the narcotics (Tylenol #4) that Dr. Jackson had refused him five days previous. (See ¶14.)
¶39 Dr. Jackson examined claimant on March 17, 1999. Dr. Jackson's office note for that date states in relevant part:
(Id. at 22.) The only objective findings noted by Dr. Jackson were: "There is an abrasion and a small laceration that have dried spontaneously [on the back of the left hand]. There's some marginal erythema, slight swelling over the dorsum of the [left] hand . . . The arm has no obvious bruising." (Id.; Jackson Dep. at 13.) Dr. Jackson did not find any other bruises on claimant's body. (Id. at 14.) He did not detect any muscle spasm. (Id. at 13.)
¶40 Dr. Jackson diagnosed: "1) cervical muscle strains secondary to trauma; 2) prior cervical diskectomy and fusion, apparently stable; 3) mild peripheral neuropathies in the left arm, suspect some nerve root impingement secondary to trauma; 4) muscle tension headaches and occipital neuralgia, chronic, now worse; 5) possible early wound infection on the back of his left hand." (Ex. 1 at 22.) He prescribed Oxycodone (id.), another narcotic drug. The prescription was for fifty tablets to be taken four times a day, in other words, a twelve-day supply.
¶41 Three days later, on March 20, 1999, claimant talked to Dr. Jackson by telephone and reported he had cramps and diarrhea, which he attributed to the Oxycodone. (Ex. 1 at 22.) Dr. Jackson prescribed fifty tablets of Tylenol #3, which is acetaminophen with codeine, two tablets three times a day, or an eight-day supply.
¶42 On March 29, 1999, Dr. Jackson examined claimant. (Id.) At that time, claimant reported a "bilateral headache." (Id.) He prescribed a refill of the Tylenol #3. (Id.)
¶43 During those months following the alleged accident, claimant's complaints were principally of headaches and neck pain.
¶44 On April 5, 1999, claimant called to request a prescription of Fioricet (id. at 22), which is a barbiturate drug with acetaminophen. Dr. Jackson recorded, "He's on Tylenol #3, says it's not working, has been taking up to six at a time. We are back to the same pattern as before." (Id.)
¶45 Claimant's drug history thereafter is noteworthy. Following his alleged accident, at least the following drugs were prescribed:
¶46 From April 1999 to late February 2000, claimant made numerous requests for additional narcotics and other drugs, claiming that medications were not working, had been lost, had been stolen, had not been provided by the pharmacy, or had been destroyed. The history is so suggestive of drug abuse that it cannot be ignored in considering claimant's motives and veracity in this matter.
¶47 Until February 25, 2000, Dr. Jackson did not question claimant's excuses, choosing to believe him. (Jackson Dep. at 52.) He did not even contact claimant's wife, who would have been able to verify or refute some of the excuses. (Id. at 19, 52.) In the face of the claimant's multiple excuses and his prior drug history, the doctor's failure to inquire into claimant's various excuses is astounding to the Court. It raises serious questions about the doctor's objectivity in diagnosing and treating the claimant.
¶48 On April 23, 1999, claimant reported to Dr. Jackson that he was "having worsening problems with pain in the head. He tried a few simple weightlifting techniques, but found that the neck became extremely painful with any movement. He has discontinued this at this time." (Id. at 21.) In making his assessment, Dr. Jackson's entry of May 6, 1999, noted that claimant is "doing some light physical exercise, mostly curls, and even that seems to worsen his headache somewhat. He also has an exercise bike, is trying to maintain his weight at around 185 pounds." (Id.) Dr. Jackson noted in claimant's file: "Chronic pain, little patience with medications which offer only partial relief of his pain. Incredible tolerance to medications of all sorts." (Id.)
¶49 On May 7, 1999, Dr. Joav Kofman, a neurologist with Billings Clinic, saw claimant. Dr. Kofman had also seen claimant on May 7, 1997, and June 18, 1997, for a 1996 neck injury. (Id. at 144, 183-87.) On May 7, 1997, he had opined that claimant's headaches were multifactorial with an element of left occipital neuralgia, common migraine, and muscle tension. (Id. at 186.)
¶50 On May 7, 1999, claimant reported to Dr. Kofman that he had been working out regularly and had lost 60 pounds. (Id. at 144.) Dr. Kofman noted that claimant had headaches on the left side before March 14, 1999, but that he now had bilateral headaches that radiated from the occipital region towards the top of the head and towards the eye. (Id.) Dr. Kofman attributed the bilateral headaches to muscular spasm and possibly occipital neuritis bilaterally, and the pain in the right medial scapular region as due to muscle spasm. He performed bilateral occipital nerve blocks and claimant reported significant improvement to the tenderness to palpitation around this region within ten minutes. (Id.) Dr. Kofman also injected claimant with 100 units of botulinum toxin into four different sites of the right medial scapular region. (Id. at 146.)
¶51 On June 17, 1999, Dr. Jackson prescribed physical therapy and noted he needed a work-hardening program and guidance with his home weight program. (Id. at 194; Ross Dep., Ex 1. at 6.) He noted that claimant was "now off of weightlifting, exercise of all forms." (Ex. 1 at 20.) On July 6, 1999, claimant began physical therapy. (Ex. 1 at 154.)
¶52 Claimant returned to Dr. Kofman on June 25, 1999, reporting that none of the May 7, 1999 injections that he received to the occipital nerve or to the parascapular muscles on the right side "helped at all." (Id. at 189; Ross Dep., Ex. 1 at 2; emphasis added.) Claimant complained his bilateral headaches continued daily. As in 1997, Dr. Kofman again attributed claimant's chronic headaches to occipital neuritis and muscular tension. (Ex. 1 at 190.)
¶53 As of July 29, 1999, claimant discontinued his physical therapy treatments. (Ross Dep., Ex. 1 at 4.) Claimant told Dr. Ross that the therapist stopped the therapy because he was concerned about the possibility of a cervical disk injury/herniation. (Id.) His statement has utterly no support in the medical record. I note that on July 24, 1999, Dr. Jackson wrote that he expected claimant to continue with physical therapy for another two months. (Ex. 1 at 150.) Moreover, claimant's statement is inconsistent with Dr. Jackson's recommendation on November 17, 1999, of additional physical therapy. (Id. at 162.)
¶54 On July 30, 1999, Dr. Scott K. Ross performed an IME at the request of Liberty for a second opinion. (Ross Dep. at 9.) At the time of Dr. Ross' examination, claimant denied any "history of headaches prior to the injury on 3/14/99" (Ross Dep., Ex. 1 at 4), which of course was not true. Claimant reported his 1996 cervical surgery but denied "any other significant or relevant past medical history" (id.), which also was not true.
¶55 Dr. Ross noted claimant's continued complaints of pain in his neck, right upper back and headache in spite of a large quantity of narcotic analgesics. (Id.) He also noted that no x-rays, CT scans, or MRIs have been performed, nor had nerve conduction studies been done. (Id. at 3.) Even though Dr. Ross found the claimant had subjective complaints of pain without objective correlation, he determined that claimant was not at MMI and recommended: 1) discontinuing claimant's narcotic analgesic medications; 2) cervical spine x-rays; 3) consideration of cervical spine MRI; and 4) a one to two week work-hardening program at the Deaconess Rehabilitation Facility in Billings, to include an entry and exit functional capacity evaluation (FCE). (Id. at 6.)
¶56 In Dr. Jackson's treatment notes from September 15, 1999, he noted that claimant "was okayed for the work-hardening program next week. He was to continue with home exercise, and, in fact, has started weightlifting again with up to 30 pounds, in a supine position only." (Ex. 1 at 13, emphasis added.)
¶57 Claimant underwent a "physical therapy work conditioning initial evaluation" on September 20, 1999. (Ross Dep., Ex. 2 at 1.) After his exam on September 20, 1999, claimant began the actual work-hardening program. (Ross Dep., Ex. 3 at 1.) After the first day of the work-hardening program, where claimant lifted weights of up 60 to 100 pounds, he began experiencing some low-back discomfort, pain in the latissimus dorsi region on the right, and headaches. (Id., Trial Test.)
¶58 On September 21, 1999, claimant called the Rehabilitation Department and stated he was in a great deal of pain, and was not coming in for the second day of work-hardening. (Ross Dep., Ex. 3 at 1). Dr. Ross contacted claimant and requested him to come in to be examined. Claimant complied. Upon examining claimant, Dr. Ross noted that his primary complaints were of pain at the base of the neck posteriorly which extended up and over the head, pain in the right latissimus dorsi region, and pain in the right hip accompanied by some numbness. (Id. at 1, 3.)
¶59 Dr. Ross noted inconsistencies in claimant's neck movements during his examination. Claimant sometimes moved his neck fluidly and at other times quite guardedly. (Id. at 3.) Dr. Ross noticed claimant was able to unlace and remove his shoes quite readily, as well as put them back on without any apparent difficulty, pain, or discomfort in the low back, upper back, or neck. (Id. at 4.) Dr. Ross testified there was no cervical paraspinous spasm upon examination, nor was there any palpable or visible abnormality in the cervical spine or cervical paraspinous region even though claimant reported pain of 8/10 intensity upon gentle palpation. No trigger points or spasms were noted in the cervical paraspinous musculature. (Id.) He noted claimant did not have any palpable or visible abnormalities of the latissimus dorsi muscles bilaterally; nor was there any pain with palpitation of the posterior spinous processes of the lumbar spine. (Id.)
¶60 Dr. Ross determined that claimant exhibited exaggerated pain responses throughout the evaluation. (Ross Dep., Ex. 3 at 4.) He advised claimant to return to the work-hardening program but to avoid lifting anything greater than 25 pounds, and also relayed his advice to the staff of the program. (Ex. 1 at 172.) Dr. Ross testified that he clearly told claimant to continue with the work-hardening program. (Ross Dep. at 20.)
¶61 Claimant did not return to the work-hardening program. Although Dr. Jackson thought "to the best of his recollection" that he "probably" told claimant to discontinue the rehabilitation program (as evidenced by his deposition testimony on June 2, 2000), his September 22, 1999 treatment note generated during the actual time frame of claimant's participation in the work-hardening program states:
(Ex. 1 at 13; Jackson Dep. at 31, 47, 71.) Dr. Jackson's September 24, 1999 treatment note also underscores the fact that claimant left the work-hardening program on his own or based upon the advice of his attorney, not because of any medical advice he received. Under the subjective findings it states in relevant part:
(Ex. 1 at 12, emphasis added.) In addition, Dr. Ross' testimony reflects his understanding that claimant's refusal to continue his participation in the work-hardening program was based upon his attorney's advice. (Ross Dep. at 21.) In light of Dr. Jackson's contemporaneous notes, as well as the doctor's tendency to believe his patient without verifying his statements (¶47), I find that Dr. Jackson did not direct claimant to discontinue the work-hardening program and claimant quit either on his own or after talking to his attorney.
¶62 After examining claimant on September 24, 1999, Dr. Jackson felt claimant should attempt to return to the work-hardening program, however, he suggested waiting two to three weeks before doing so, to allow the patient's pain to subside. (Id.) Dr. Jackson recommended: "At that time he might return, but he'll need special coaching and so forth about his performance expectation in the work-hardening program." (Id.)
¶63 On September 25, 1999, Dr. Ross concluded that claimant had reached MMI regarding his March 14, 1999 injury as of September 21, 1999, the date he left the work-hardening program. (Ross Dep., Ex. 4 at 1.) He noted that any restrictions or limitations that he found as of September 25, 1999, were related to claimant's previous injuries, not the March 14, 1999 injury. (Ross Dep. at 22.; Ross Dep., Ex. 4 at 1.) Dr. Ross went on to state that claimant was permanently limited secondary to previous work-related injuries and surgeries (lumbar spine and cervical spine) where he received whole person impairment ratings for both injuries. (Ross Dep., Ex. 4 at 1.) Furthermore, he opined that claimant did not have any permanent physical limitations or impairment attributable to his March 14, 1999 injury at Bos.
¶64 On October 7, 1999, claimant saw Dr. Jackson who noted:
Rather than returning to the work hardening program in Billings, I will see if we can get him started in physical therapy again. Perhaps a therapist who knows him can start slowly with him, keep him within normal kinds of limits, as he's increasing his strength. He has yet to reach maximum medical improvement.
(Ex. 1 at 12.)
¶65 On October 28, 1999, Dr. Jackson saw claimant again and noted headache, neck, and low-back pain. (Id. at 11.) He noted that claimant was waiting to hear from workers' compensation regarding further physical therapy. (Id.) During October and early November, Dr. Jackson also recorded that claimant was depressed and had abdominal pain. (Id. at 10-11.) On November 10, 1999, Dr. Jackson noted "more of a headache recently, especially in the left orbital region," but also noted that claimant had "been doing 100 push-ups, 200 ‘crunches,' 50 sit-ups." (Id. at 10, emphasis added.) Of note, Dr. Jackson wrote that he planned to try and get claimant "hooked up with a physical therapist, "mostly to act as a ‘brake' to his exuberant use of weightlifting." (Id., emphasis added.)
¶66 Claimant resumed
physical therapy on November 29, 1999. Of significance, the therapist's
note states that claimant "has been lifting weights on his own
at home; however, has been lifting extremely heavy weights working mostly
on primary movers." (Id. at 166, emphasis added.) The therapist
provided a schedule of home exercises and planned gym sessions twice
a week for four weeks. (Id. at 167.) There are no follow-up notes for
¶68 On March 2, 2000,
Dr. Jackson permanently discharged claimant from his practice (ex. 1
at 2, 173) because he received a phone call from a pharmacy alerting
him to the fact that claimant had filled a prescription for Alprazolam
even though Dr. Jackson specifically told him he was limited to using
just one drug, Lorazepam. (Jackson Dep. at 5, 34-35, 41-42.) Dr. Jackson
thought this was a deliberate, surreptitious misuse of prescription
medications and a violation of his trust. (Ex. 1 at 3; Jackson Dep.
¶70 Claimant was then examined by Dr. John A. Vallin on May 30, 2000. (Ex. 3 at 1.) Dr. Vallin noted that "claimant was doing well until 3/14/99 when he fell 10 feet off a ladder, landing on his left side, hitting the left side of his head and neck." (Id.) Claimant's statement about doing well until March 14, 1999, was, of course, untrue. In any event, Dr. Vallin noted claimant was diffusely tender overlying the left cervical facets with no similar tenderness on the right. (Id.) Claimant was also tender in the midline over the C6 and C7 spinous processes. Dr. Vallin diagnosed cervical degenerative disk disease at C5/6, C7/T1. (Id.) In addition, Dr. Vallin stated that claimant's "mechanical neck pain" was more likely than not related to his industrial fall of March 14, 1999. Dr. Vallin recommended facet injections and physical therapy. In the event claimant did not elect this course of treatment, Dr. Vallin opined that claimant was most likely reaching MMI. (Id. at 2.)
¶71 Neither Dr. Vallin nor Dr. Speth testified in this matter.
Medical Evidence of Injury
¶72 Other than a small laceration on the left hand, there is no objective evidence of injury in this case. While some of the doctors identified muscle spasm and tenderness, those symptoms are not inconsistent with claimant's preexisting condition and complaints. Moreover, often there was no muscle spasm present in examinations of claimant.
¶73 Dr. Jackson noted that the left-sided headaches appeared to follow from the injury (ex. 1 at 22), however, Dr. Kofman reported on May 7, 1997, that "left posterior occipital pain which radiates to the top of the head and towards the left eye" and "also some pain which does occasionally radiate from the cervical region into the left upper extremity." (Id. at 183.) I am not persuaded that the left-sided aspect of claimant's headaches are new.
¶74 Dr. Jackson testified that it was not possible to objectively verify if claimant exacerbated the occipital neuralgia and back pain, but he thought "the clinical findings . . . were adequate to tell us whether he had a substantial worsening of the cervical fusion" and that the "worsening of his pain was consistent with some type of injury." (Id. at 60-61, 74, emphasis added.) However, Dr. Jackson admitted that he was essentially relying on claimant's subjective reports of pain when he made his medical conclusions.
(Id. at 49.)
Other Evidence of Claimant's Credibility
¶75 In prior findings, I have cited a number of instances which call claimant's veracity into question. There are additional examples, including the following instances.
¶76 At his May 10, 2000 deposition, the claimant was asked what he did after seeing Dr. Speth on May 4, 2000, only six days previous. He testified that he "went right home" because he had his family with him, arriving home at approximately 1:00 or 1:30 pm, and then spent the rest of the afternoon sitting in his chair at home. (Schneider Dep. I at 27-29.) However, a video surveillance film (ex. 5) shows that after he left Dr. Speth's office on May 4th claimant did a number of errands and did not arrive home until nearly 5:00 p.m. Given the fact that claimant's testimony was only six days after the events in question, I find it difficult to believe that claimant did not recollect what he did after the appointment. Indeed, I am persuaded that he lied during his deposition.
¶77 Claimant testified
that when he saw Dr. Ross on September 21, 1999, he believed that Dr.
Ross "said to go home." He further testified that he was unclear
as to what he was supposed to do. Dr. Ross' office note and testimony
flatly contradict claimant's testimony. (Ross Dep. at 20; Ross Dep.,
Ex. 3.) Moreover, Dr. Jackson's office note of September 22nd indicates
that claimant had contacted his lawyer about the matter and his note
of September 24th reports that claimant said that his lawyer had told
him to discontinue the work-hardening program and not return to Dr.
Ross. (Ex. 1 at 12-13.) I do not believe claimant's testimony that he
was told to go home by Dr. Ross and do not believe there was any misunderstanding
on his part.
(Ex. 6 at 4-5.) Claimant testified he did not recall making the statements, but admitted he might have. His attorney stipulated that the statements were made but that claimant denied that they were true. On redirect, claimant said that he may have made the statements to the police officers while on morphine and that he was scared of going to jail. In response to questions I put to him, he conceded that what he told Dr. Jackson may not always have been true and that he may have lied, but that if he did so it was while he was in a narcotics haze. I think this is as "close" to the truth that claimant ever got in his testimony.
¶79 Claimant testified that despite Dr. Jackson discharging him from his practice, Dr. Jackson asked him if he would like the doctor to continue treating him. Dr. Jackson denied the assertion during his deposition (Jackson Dep. at 42-43, 45), and I find claimant's assertion to be false.
¶80 I find that the alleged industrial accident did not in fact occur. My reasoning is as follows:
¶81 Even if claimant suffered an industrial injury as he claims, I find that he reached MMI as of September 21, 1999, the date on which Dr. Ross found him at MMI. On that date he refused to continue the prescribed work-hardening program. Dr. Ross testified that the primary purpose of the work-hardening program was to objectively determine what claimant could physically do. (Ex. 39.) Claimant's failure to pursue the program, as with his failures to previously pursue physical therapy, frustrated that purpose. Without his cooperation participation in work-hardening or physical therapy, those programs are pointless and will not improve his condition.
¶82 Dr. Jackson's opinion that claimant needs additional physical therapy is unpersuasive. Claimant had the opportunity to continue with the work-hardening program and refused. Claimant's previous involvement with physical therapy indicate that any further physical therapy is unlikely to help. In 1990, Dr. Michael A. Sousa, who performed lumbar surgery on claimant, noted that claimant "was noncompliant with regard to a recommendation for physical therapy." (Ex. 1 at 132.) Claimant quit the physical therapy program prescribed by Dr. Jackson in June 1999. His explanation for quitting is not supported in the medical records and, like many of his other excuses, not credible. On his own, claimant engaged in vigorous weightlifting. I find it unlikely that claimant would follow through with physical therapy or benefit from it.
¶83 Dr. Speth made recommendations for possible further treatment but referred claimant to Dr. Vallin, thus deferring to Dr. Vallin. Dr. Vallin recommended facet injections and physical therapy, but noted that if claimant did not pursue either then he was at MMI. As found in the previous paragraph, I find it unlikely that claimant would pursue and benefit from physical therapy. As to the facet injections, that recommendation assumes claimant's complaints are true. I have found him incredible. Moreover, injections recommended by Dr. Vallin had been done previously by Dr. Kofman (Jackson Dep. at 64-65), and had only short-term effect. Dr. Ross testified that Dr. Speth's diagnosis of possible "upper cervical radiculopathy" was not borne out by the findings on his exam, or the cervical spine MRI, or the x-rays. (Ross Dep. at 36.)
¶84 Irrespective of the outcome of this case, the insurer acted reasonably when it terminated benefits.
CONCLUSIONS OF LAW
¶85 The claimant's alleged injury occurred on March 14, 1999, therefore the 1997 version of the Workers' Compensation Act applies. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶86 Liberty alleges that the claim in this case is fraudulent. In Haag v. Montana Schools Group Ins. Authority, 274 Mont. 109, 115, 906 P.2d 693, 697 (1995), the Supreme Court held that an insurer must plead all elements of fraud with specificity. In that case, the insurer failed to plead fraud and the issue was not set out in the pretrial order. In this case, the matter was pled. Whether the pleading was sufficient is not before the Court since claimant never challenged the sufficiency of the pleading and agreed to reduce the issue to whether the accident in fact occurred. Thus, the issue of whether the claimant suffered an industrial accident, and whether he is entitled to any benefits, is properly before the Court. Since the claim was accepted, however, Liberty bears the burden of proving that an accident did not occur, i.e., that the claim was fraudulent. Taylor v. State Compensation Ins. Fund, 275 Mont. 432, 437, 913 P.2d 1242, 1245 (1996).
¶87 I have found as fact that no industrial accident occurred and that the claimant lied about the accident for the purpose of obtaining workers' compensation benefits. Accordingly, claimant is not entitled to any further benefits.
¶88 The next issue is whether the claimant should be required to repay the additional 49 days of section 610 benefits Liberty paid pursuant to this Court's Order. The termination of benefits by an insurer is governed by section 39-71-610, MCA, which states:
Liberty is not liable for further temporary total disability benefits and is therefore entitled to reimbursement of the 49 days of benefits ordered by the Department and this Court.
¶89 Since claimant has not prevailed, he is not entitled to costs or attorney fees. Moreover, even had he prevailed, the insurers' denial of further benefits was reasonable and he would not be entitled to attorney fees in any event. § 39-71-611, MCA (1997).
¶90 Claimant did not suffer an industrial accident on March 14, 1999, and is not entitled to compensation, medical, or any other benefits. Even if injured, he is not entitled to further temporary total disability benefits since he reached MMI. The claimant's petition is dismissed with prejudice.
¶91 Claimant shall repay the 49 days of additional benefits ordered by the Department and this Court under section 39-71-610, MCA. The Court reserves jurisdiction to determine the amount of those benefits should the parties be unable to agree on the amount.
¶92 Claimant is not entitled to costs or attorney fees.
¶93 This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶94 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 April, 2001.
c: Mr. Geoffrey C. Angel
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