Conduct by Insurers. Penalty and attorneys fees are warranted based
on the insurer's unreasonable denial of the claim, reflected in its
failure to ascertain the IME physician's qualifications for the condition
at issue, continued reliance on the IME physician's opinions despite
information suggesting the treating physician was more qualified, denial
of an OD claim in its entirety despite the IME physician's opinion 50%
of the condition was occupational, and disregard for some facts and
for the opinions of the nurse manager and treating physician.
¶1 The trial in this matter
was held on November 14, 1997, in Helena, Montana. Petitioner, Guy Wall
(claimant), was present and represented by Mr. Richard J. Pyfer. Respondent,
National Union Fire Insurance Company (National Union), was represented
by Mr. Donald R. Herndon.
¶2 Exhibits: In November
7, 1997 correspondence with the Court's Hearing Examiner, National Union
stated that it had no foundation objections to the exhibits listed by
claimant but said, "All other objections are reserved depending upon
the manner and purpose for which these exhibits may be offered at trial."
(November 7, 1997 Herndon letter to Ms. Clarice Beck, Court File.) At
trial the Court held that National Union cannot reserve objections until
trial. Rule 24.5.318 of this Court provides that the pretrial order
must set out any objections a party may have to the adverse party's
exhibits. In relevant part, it states that the pretrial order must contain:
(g) a list of all exhibits
to be offered by each party, including the grounds of any objections
an adverse party may have to the admission of particular exhibits;
ARM 24.5.318(5)(g). Neither
National Union nor claimant set forth any objections to the exhibits
listed in the Pretrial Order. Exhibits 1 through 35 were therefore admitted.
¶3 Witnesses and Depositions:
The only witnesses testifying at trial were the claimant and David Odermann,
the claims adjuster in charge of adjusting the claim. The depositions
of claimant, his wife (Sandra Wall), Daniel J. Downey, M.D., and James
T. Lovitt, M.D., were submitted to the Court for its consideration.
¶4 Issues: The parties
have stated the issues as follows:
1. Whether Petitioner
suffered compensable industrial "accidents" on February 19, 1996 and/or
March 23, 1996 within the meaning of § 39-71-119, MCA.
2. Whether Petitioner
suffered an "injury" proximately caused by either or both of the industrial
accidents alleged to have occurred on February 19, 1996, and March
23, 1996, within the meaning of § 39-71-119, MCA.
3. Whether Petitioner's
claims should be processed and adjusted as an occupational disease
claim pursuant to Chapter 72, Title 39, MCA.
4. Whether Respondent/Insurer
unreasonably refused to pay benefits to Petitioner entitling Petitioner
to an increase of an award of twenty percent (20%).
5. Whether the Respondent/Insurer
and Employer shall be required to pay reasonable costs and attorney's
fees to Petitioner.
(Pretrial Order at 2.)
* * * * *
¶5 Having considered the
Pretrial Order, the trial testimony, the demeanor and credibility of
the witnesses, the exhibits, the depositions and the arguments of the
parties, the Court makes the following:
FINDINGS OF FACT
¶6 Claimant is 40 years of
age. In 1984 he began working at a talc mill operated by Pfizer Company
in Dillon, Montana. He worked at the mill continuously until March 23,
1996. In 1990 Barretts Minerals bought the mill and claimant became
an employee of that company.
¶7 Claimant initially operated
a forklift and bagged and moved talc. Over the years he was advanced
to other positions, including compactor operator, boiler operator trainee,
equipment operator, relief supervisor and mill operator.
¶8 In February and March
1996, claimant was a relief supervisor and mill operator.
¶9 In the late 1980s the
claimant suffered an injury to his right knee in a water skiing incident.
¶10 In the Spring of 1995,
the claimant began experiencing pain in his left knee. The onset of
pain occurred in conjunction with increased stair climbing at work.
¶11 On June 27, 1995, claimant
sought medical treatment for his left knee from Dr. Daniel J. Downey.
Dr. Downey's medical history for the initial visit noted that claimant
had a painful knee for approximately two months due to stair climbing
at work. (Ex. 1; Downey Dep. at 10.) He diagnosed patellar tendinitis
of the left knee, noting that patellar tendinitis is typically due to
overuse. (Downey Dep. at 11.) He prescribed muscle strengthening using
an exercise bicycle and physical therapy. (Exs. 1, 23 and 25.)
¶12 Claimant continued working,
albeit with pain. He was not taken off work.
¶13 Claimant completed physical
therapy in July 1995. (Ex. 23 at 63.) His left knee pain resolved by
September or October 1995, and he was thereafter able to work without
¶14 On February 19, 1996,
between 11:00 a.m. and noon, claimant was helping move rail cars used
to haul talc. During the move claimant mounted a ladder on a rail car.
As he stepped off the ladder onto the ground, he felt excruciating pain
in his left knee and collapsed to the ground.
¶15 The distance between
the bottom step of the ladder to the ground was twelve to eighteen inches.
¶16 Claimant lay on the ground
for several minutes before getting up. He then continued working and
completed his shift at approximately 7:00 p.m. His knee continued to
hurt during the remainder of his work shift.
¶17 February 19, 1996, was
a holiday - Presidents' Day - and claimant was the supervisor in charge
of the mill.
¶18 Claimant's next day of
work was February 22, 1996. On that date he reported the incident of
February 19 to his supervisor. A written report of the incident was
prepared. (Ex. 3.)
¶19 Claimant contacted Dr.
Downey's office for an appointment on February 20 or 21, but was unable
to obtain an appointment with the doctor until March 4, 1996.
¶20 Claimant continued working
but had significant pain in his left knee.
¶21 Dr. Downey examined claimant
on March 4. His office note for that date reported that claimant had
been doing well with respect to his left knee since "last fall" until
the February 19 rail car incident. (Ex. 27 at 76.) He noted that claimant
suffered "increased pain since that time [February 19] with catching
at the medial jointline." (Ex. 27 at 75.) Upon examination,
he found a "positive McMurray's sign" and diagnosed a medial meniscal
tear with ongoing patellar tendinitis of the left knee. (Id.)
He prescribed physical therapy and noted that if the physical therapy
was not successful then arthroscopic surgery should be considered. (Id.)
¶22 Claimant continued to
work. He worked the graveyard shift on March 22-23, 1996. It snowed
that day, and in the early morning hours of March 23 he experienced
increased left knee pain while shoveling snow. He was unable to continue
work and left work early. He never returned to his job with Barretts
¶23 Claimant saw Dr. Downey
two days later, on March 25, 1996. Dr. Downey noted that claimant experienced
increased pain while shoveling snow. (Ex. 27 at 75.) Upon examination,
he again found a positive McMurray's sign. He scheduled arthroscopic
surgery for April 16, 1996 (id.) and took claimant off work
(Downey Dep. at 67).
¶24 McMurray's sign involves
the physician flexing the patient's knee and applying varus and valgus
stresses on the knee in an attempt to evoke pain. (Downey Dep. at 14.)
While there is some subjectivity in the test vis-a-vis the patient's
perception of pain, the test is at least partially objective and is
the best indicator of a torn meniscus. Along with history and the clinical
examination, it is a more reliable indicator of a meniscal tear and
the need for arthroscopic surgery than MRI or other imaging. (Id.
¶25 Dr. Downey is a board
certified orthopedic surgeon. (Ex. 27 at 174; Downey Dep. at 3.) Following
completion of his orthopedic residency in 1992, he did a one-year fellowship
in arthroscopy and sports medicine. (Ex. 27 at 174; Downey Dep. at 34.)
Seventy percent (70%) of his fellowship was devoted to knee conditions.
(Downey Dep. at 52.) During his one-year fellowship, he examined and/or
treated approximately 2,000 knee conditions. (Id.) Following
his fellowship, Dr. Downey began an orthopedic practice in Dillon, Montana.
Since then he has, on the average, treated 400-500 knee conditions annually.
¶26 On July 27, 1996, claimant
completed and filed a written claim for compensation with respect to
the February 19 incident. (Ex. 8 at 15 and Ex. 33.) On July 29, 1996,
he completed and filed a claim with respect to the March 23 snow shoveling
incident. (Ex. 8 at 16 and Ex. 34.)
¶27 However, correspondence
from National Union's adjuster shows that National Union was aware of
the February 19 and March 23 incidents, and the scheduled arthroscopic
surgery, at least as early as March 25, 1996, and was adjusting the
claim as of that time. (Ex. 6.)
¶28 The claim was adjusted
by AIG Claim Services, Inc. (AIG). On March 26, David Odermann, a claims
adjuster for AIG, wrote a letter to claimant. In the letter, he stated
that he had received a call from Dr. Downey's office asking for authorization
for the scheduled, April 16 arthroscopic surgery. The letter declined
to authorize the surgery and asked for additional information. The full
text of the letter is as follows:
I received a phone call
on Monday, 3/25/96 from Dr. Downey's office, informing me that they
were considering doing orthoscopic surgery on your left knee. This
was apparently scheduled for 4/16/96.
Prior to authorizing any
such surgery, I am going to need your entire medical records relating
to injuries and medical treatments for your knees. With the limited
information that you had previously provided, I sent a letter to Dr.
Downey and obtained very limited information. There was really nothing
that assisted us in setting forth a history of previous problems or
At this time, I am asking
that you please contact all of your previous medical providers who
treated you for any type of leg or knee ailments, especially those
related to your previous knee surgery. Please provide a copy of the
name of the treating physician or physicians, their phone number and
addresses. When you do contact these medical providers, please ask
them to contact me to that I can be certain that we're going to be
able to arrange to obtain those medical records.
We'll look forward to
hearing from those medical providers in the very near future, so as
to be able to expedite this matter. Again, we can not authorize any
further medical treatments until we have received that information.
\s\ David L. Odermann
¶29 AIG then set up an independent
medical examination by Dr. James T. Lovitt, who examined claimant on
April 24, 1996. At that time he found no McMurray's sign and no evidence
of patellar tendinitis. (Lovitt Dep. at 12.) He diagnosed claimant with
a degenerative medial meniscus, which he opined had developed over a
long period of time. (Id. at 15-17; Ex. 29 at 179.) He attributed
the condition 50% to occupational factors and 50% to non-occupational
factors. (Ex. 29 at 179; Lovitt Dep. at 24.) He found claimant to be
at maximum medical healing. (Ex. 29 at 179.) Although claimant told
Dr. Lovitt of the rail car incident, the doctor nonetheless opined that
the event was meaningless and did not constitute an injury to claimant's
knee. (Lovitt Dep. at 9-10.) He did recommend a MRI, which he felt would
show the condition of the meniscus. (Id. at 14, 20; Ex. 29
¶30 AIG set up Dr. Lovitt's
IME examination through VRI, which is a private managed care company.
Following Dr. Lovitt's report, the registered nurse coordinating the
IME and inquiry into claimant's medical history sent a FAX to Odermann
in which the RN said:
Even though Mr. Wall is
at "maximum medical healing" per Dr. Lovitt, he continues to have
symptoms - Should I initiate treatment?
If he doesn't
receive treatment, I worry that he may not be able to do the lightest
duty alternative job. Please let me know.
(Ex. 26, emphasis added.)
¶31 Neither AIG nor VRI set
up a MRI for claimant's knee, as Dr. Lovitt had recommended.
¶32 Based on Dr. Lovitt's
opinions, the insurer, through AIG, denied, and has continued to deny
to this time, the February 19 and March 23, 1996 claims. It has also
persisted in its refusal to authorize arthroscopic surgery.
¶33 Meanwhile, the April
date originally scheduled for arthroscopic surgery came and passed.
No surgery was performed as scheduled because of the failure of the
insurer to authorize it. Despite the insurer's continuing refusal to
authorize the surgery, it was finally done on December 31, 1996.
¶34 Dr. Lovitt is a board
certified orthopedic surgeon. The evidence in this case does not show
in what area of orthopedics he specializes. No information was presented
about his practice. Dr. Downey understood that Dr. Lovitt is a spine
surgeon (Downey Dep. at 30), but there was no direct evidence to support
his understanding. More importantly, no evidence presented indicates
that Dr. Lovitt ever had a fellowship in arthroscopic or knee surgery
or that he performs arthroscopic knee surgery or sees patients with
¶35 On August 12, 1996, Dr.
Downey wrote to Shelly Bradley (Bradley), who is Odermann's supervisor.
(Ex. 7.) The letter followed another examination of claimant on the
day of the letter. Dr. Downey apprised Bradley of claimant's continuing
knee difficulties, including "very sharp pain in the medial aspect of
the knee" and occasional buckling of the knee. He provided her with
his unequivocal opinion that the claimant suffered a "medial meniscal
tear in his left knee," noting that the other possibility was "a lesion
of the articular cartilage on the femoral condyle which can mimic a
meniscal tear but also can be treated with arthroscopic surgery." Dr.
Downey stated in unequivocal language that claimant's knee condition
precluded his return to work.
¶36 The letter was lengthy
and Dr. Downey went on to state his disagreement with Dr. Lovitt's opinions.
I do not agree with Dr.
Lovitt's opinion in his independent medical evaluation in that :
1. He recommends an MRI
which is not the diagnostic imaging study of choice by most people
who have done fellowship training in sports medicine and arthroscopy.
This is supported in the recent literature. Careful examination and
history gives information that is as accurate as an MRI according
to one recent study.
2. Guy Wall's injury occurred
on the job February 19, 1996 when he stepped off a railway car. It
is not common for people that are 39 to spontaneously have meniscal
cartilage tears and I completely disagree with Dr. Lovitt's opinion
that his injury is 50% due to age. I think it is 100% work related.
(Ex. 7 at 13.)
¶37 Downey testified that
a "degenerative meniscal tear," as diagnosed by Dr. Lovitt, was unlikely.
"I don't think that a degenerative meniscal tear is, is likely in a
38-year-old patient at all, particularly with the history of trauma."
(Downey Dep. at 33.)
¶38 In a final paragraph
of his letter to Bradley, Dr. Downey pointed to his own experience as
a specialist in arthroscopic surgery and suggested that if the insurer
wanted to rely on an IME, then another IME should be performed by someone
specializing in arthroscopic surgery. He wrote:
In conclusion, I would
recommend that if you wish him to have another independent medical
evaluation that you have a doctor who is fellowship trained in arthroscopic
surgery, such as myself, evaluate him. Personally, I don't think this
is necessary as this is not a hazy case and in my opinion is very
straight forward. Cases such as this make up a large percentage of
(Ex. 7 at 14.)
¶39 Dave Odermann received
a copy of the Downey letter, although it is not clear when exactly he
received it. He certainly had it prior to the time of the trial.
¶40 Although Bradley was
Odermann's supervisor, Odermann continued to have responsibility for
¶41 Despite Downey's letter,
and his admonition that the insurer should obtain an independent medical
opinion from a physician specializing in arthroscopic surgery, Odermann
did not schedule another IME or make any further inquiry concerning
Dr. Lovitt's specific expertise in knee conditions or arthroscopic surgery.
At trial, Odermann testified that there was no need to further inquire
into Dr. Lovitt's experience. For him, and the insurer, it was sufficient
that Dr. Lovitt was a board certified orthopedic surgeon.
¶42 On September 24, 1996,
more than a month after the Downey letter, Mr. Donald R. Herndon, an
attorney for the insurer wrote to the attorney for claimant. (Ex. 5.)
In his letter he noted the claimant had filed three claims, one on July
6, 1996, for occupational disease, one for the February 19 incident,
and one for the March 23 snow shoveling incident. The letter went on
to state that the occupational disease claim had been denied and referred
to an occupational disease panel. It then went on and gave notice that
the other two claims were being denied because the reported incidents
"are not accidents within the meaning of Section 39-71-119, MCA" and
because the left knee problems "appear to be essentially indistinguishable
from those found by Dr. Downey on 6/27/95, which predates all three
¶43 The reference in Herndon's
letter to a July 6, 1996 occupational disease (OD) claim was erroneous.
The OD claim was filed on July 6, 1995 (Ex. 28), a fact that is apparent
from the last paragraph of Herndon's letter.(1)
¶44 Herndon's letter gave
notice that the insurer was denying every claim filed
by claimant and doing so despite the facts that Dr.
Lovitt had attributed 50% of claimant's knee condition to occupational
factors and that no physician had provided an opinion
disputing that claimant was suffering from a real medical condition
involving his knee which was in part attributable to his job.
¶45 At trial, Odermann acknowledged
his awareness of the treating physician rule, which
provides that the testimony of the treating physician, although not conclusive,
is entitled to great weight. EBI/Orion Group v. Blythe, 931 P.2d
38, 42 (Mont. 1997).
¶46 The insurer's denial
of all claims was unreasonable. Despite the fact that the information
available to the insurer shows that Dr. Downey has more expertise in
knee conditions and arthroscopic surgery than Dr. Lovitt, and the fact
that Dr. Downey is the claimant's treating physician, the insurer has
persisted in deferring to Dr. Lovitt. The adjuster did not care one
whit whether Dr. Downey had more expertise than Dr. Lovitt. He was interested
only that Dr. Lovitt opposed surgery and felt that the incidents of
February 19 and March 23 did not amount to injuries. The adjuster also
disregarded the May 15, 1996 warning of a RN reviewer from VRI, that
if claimant "doesn't receive treatment, I worry that he may not be able
to the lightest duty alternative job." (Ex. 26.)
¶47 Claimant continued to
have knee problems. Dr. Downey saw him again on November 5, 1996. At
that time, claimant was continuing to have pain. Upon examination, the
McMurray sign was negative; however, the physical examination showed
"mild posterolateral tenderness." (Ex. 27 at 148.) Suspecting a "chronic
pain problem in his left knee with probable healing of his meniscal
tear," Dr. Downey referred claimant to Dr. Aaron Sable, who specializes
in physical medicine. (Id.)
¶48 Dr. Sable examined claimant
on November 15, 1996. At the time of the examination, the McMurray's
maneuver produced discomfort. (Ex. 2 at 5.) Dr. Sable concluded that
claimant had "[l]eft knee pain with possible medial meniscus tear, potentially
in the posterior horn." (Id.) He recommended arthroscopic evaluation.
¶49 After examining claimant
once more on December 27, 1996, Dr. Downey decided to proceed with arthroscopic
surgery. During the December 27 examination of claimant, Dr. Downey
found a positive McMurray's sign and concluded, "MY IMPRESSION IS THAT
HE MAY HAVE A MENISCAL CARTILAGE TEAR OR ARTICULAR CARTILAGE TEAR."
(Ex. 27 at 73; Capitalization in original.)
¶50 Dr. Downey performed
arthroscopic surgery on December 31, 1996. The arthroscopic surgery
failed to verify a medial meniscus tear. Dr. Downey did find other minor
abnormalities in the knee and corrected them.(2)
(Downey Dep. at 49; Ex. 26 at 77.)
¶51 Claimant's knee pain
has not improved since his surgery. Dr. Downey pronounced claimant at
maximum healing on February 19, 1997. (Ex. 27 at 72.)
¶52 Post-surgery Dr. Downey
offered his opinions concerning claimant's injury. He testified that
the claimant may very well have suffered a tear of the medial meniscus
which could have healed in the intervening months. (Downey Dep. at 45.)
He testified, "We didn't look inside his knee at that time, and the
meniscal cartilage tear may have healed, so we'll never really know
about that diagnosis." (Id.)
¶53 Dr. Downey conceded that
the February 19 event did not fully explain claimant's continuing symptoms.
He opined that claimant was predisposed to "functional somatic [pain]
syndrome" but noted that claimant had been able to do his job until
March 1996. He further opined, "And my opinion is that he wouldn't be
in the situation he's in now if he hadn't been injured at work." (Downey
Dep. at 47.) He elaborated on the role of the accident in comparison
with claimant's predisposition, testifying as follows:
As for, you know, should
I say he's faking his pain, no, I don't think he's faking his pain.
I think he has a lot of pain and I think he's disabled by his pain.
I think he has a real problem. But I think part of it is a functional
somatic syndrome. And you need to review the literature on that subject,
because it's a fascinating area of medicine. It's an area where people
suffer from pain that we can't explain. And they suffer from pain
that we can't help them with, too.
Q. Is his condition industrially
Q. Was it in this case,
in your opinion?
A. I think it's 50 percent,
as I previously stated. I think that another person that had that
injury may well have recovered from it completely and that part of
his problem is that he has a predisposition to that type of trouble.
Q. Do you disagree with
Dr. Lovitt's opinion that this was a condition in Guy Wall's left
knee that was caused by degeneration over a long period of time from
both working and non-working causes?
Q. And your belief is
that it was caused by an injury?
Q. And the injury was
stepping off the rail car?
A. What do mean by it?
Q. Your diagnosis.
Let's go back. You have
pain that's caused by an industrial accident that you find in Mr.
Wall; is that correct?
Q. And that pain is caused
at least 50 percent by him stepping off the rail car; is that correct?
A. I didn't say at least;
I said 50 percent. I mean, that's my best estimate.
Q. And 50 percent for
(Downey Dep. 50:2-25, 51:1-10.)
¶54 Dr. Downey's final opinion
concerning the rail car incident of February 19, 1996, was, "[H]e had
either a meniscal cartilage tear or a sprain, which would be a tear
of the capsule of the knee. And I think these things set off his, his
pain syndrome." (Downey Dep. at 47-48.)
¶55 Dr. Lovitt was deposed
and disagreed with Downey. He acknowledged his initial diagnosis of
medial meniscus degeneration but testified that the December 31, 1996
surgery failed to substantiate the diagnosis. (Lovitt Dep. at 26-27.)
¶56 After considering all
of the evidence in this case, I find that claimant suffered an industrial
injury on February 19, 1996. I base my finding on the following:
- Claimant experienced a
significant event on February 19, 1996, when he stepped down from
the rail car, a distance of 12 - 18 inches, and experienced excruciating
pain in his left knee. He fell and was unable to get up for several
minutes. The insurer has mustered no evidence rebutting his description
of the event.
- Claimant's prior left
knee problems were unrelated to the February 19, 1996 incident. His
patellar tendinitis symptoms had essentially resolved several months
prior to the February 19 incident. Moreover, his symptoms following
the February 19 incident were different than what he suffered prior
to that date. In particular, many, although not all, of the medical
examinations after the incident revealed a positive McMurray's test.
- Claimant has a long, steady
work history. He worked continually for the talc plant for over 12
years. Despite the onset of patellar tendinitis in the spring of 1995,
he continued working without interruption until snow shoveling incident
in March amplified his symptoms. There is no evidence for any assertion
of malingering or deliberate exaggeration on the part of the claimant.
- Dr. Downey was claimant's
treating physician. Putting aside all other factors, his opinions
as claimant's treating physician are entitled to special weight since
he treated claimant both before and after the February 19 and March
23 incidents, and was therefore familiar with the claimant's knee
condition both before and after the events.
- Dr. Downey specializes
in arthroscopic surgery and knee injuries. He has specific training
in those areas and they are a regular part of his practice. He testified
in his deposition that claimant presented a "fairly classic [case]
for a meniscal cartilage tear. And I don't think that there would
be a great amount of disagreement about the diagnosis amongst fellowship
trained knee surgeons." (Downey Dep. at 32.) In contrast, the Court
is unable to determine what special experience and expertise Dr. Lovitt
has in knee injuries and arthroscopic surgery. I must therefore find
that Dr. Downey has the greater expertise in the treatment of knee
- Dr. Lovitt's April 1996
IME supports a finding that claimant suffered some sort of tear of
the medial meniscus.
- The eight month delay
in arthroscopic surgery precludes any definitive determination as
to the nature of the claimant's February 19 injury.
¶57 Since his injury, claimant
has experienced major depression. He is being treated by a psychologist,
who attributes claimant's depression to a "response to the life adjustments
necessitated by his injury and to the frustrations that are a result
of the continuing court processes that have been necessary to redress
his injury." (Ex. 27 at 95.) The depression is therefore related to
his injury and is compensable.
¶58 The insurer's denial
of liability, and its refusal to authorize arthroscopic surgery, were
unreasonable. The reasons for my finding are set forth in previous findings
regarding the insurer's conduct.
CONCLUSIONS OF LAW
I. Applicable Law
¶59 Claimant seeks benefits
with respect to alleged injuries occurring on February 19 and March
23, 1996. His claims are governed by the 1995 version of the Workers'
Compensation Act (WCA.) Buckman v. Montana Deaconess Hospital,
224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
II. Burden of Proof
¶60 Claimant must prove,
by a preponderance of the evidence, that he suffered an industrial injury.
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).
III. Industrial Accident
¶61 Under the 1995 WCA, a
compensable industrial injury requires both an "accident" and an "injury."
Section 39-71-119, MCA (1995), provides in relevant part:
and accident defined.
(1) "Injury" or "injured"
(a) internal or external
physical harm to the body that is established by objective medical
. . .
(2) An injury is caused
by an accident. An accident is:
(a) an unexpected traumatic
incident or unusual strain;
(b) identifiable by time
and place of occurrence;
(c) identifiable by member
or part of the body affected; and
(d) caused by a specific
event on a single day or during a single work shift.
. . .
Claimant has satisfied his
burden of proof with respect to each of the elements above.
¶62 The insurer's contention
that the event of February 19 did not constitute an accident has no
merit whatsoever. Subsections (b), (c) and (d) of section 39-71-119(2),
MCA, are plainly satisfied and require no further discussion. As to
subsection (a), which requires "an unexpected traumatic incident or
unusual strain," that requirement is clearly met. Dr. Downey characterized
the incident as traumatic. (Downey Dep. at 18.) Anyone who has missed
a stair and jammed a knee knows that the event described by claimant
may be traumatic. Stairs are typically between 7 and 8 inches in height.
Claimant stepped off from a height of 12 to 18 inches, the equivalent
of missing at least one step on a staircase.
¶63 Even if the event on
February 19 is not considered a traumatic incident in the strict sense,
subsection (2)(a) also covers an "unusual strain." The unusual strain
doctrine was recognized in Robins v. Ogle, 157 Mont. 328, 485
P.2d 692 (1971). In that case the claimant suffered a herniated disc
when lifting a pail of water at work. The Supreme Court acknowledged
that the strain was not unusual from the standpoint of the general nature
of the claimant's work; however, it held that the critical fact was
the particular manner in which she picked up the bucket on that occasion
and the unusual result flowing from that incident. Id., 157
Mont. at 332, 485 P.2d 694. The Court went on to say:
A tangible happening of
an unexpected nature from an unusual strain qualifies, irrespective
of whether the strain is 'unusual' from the standpoint of cause or
effect. While it may be arguable in the instant case whether
the strain was unusual from the standpoint of cause, it is clear that
the effect here was unusual-herniation of an intervertebral disc resulting
from picking up the bucket in the wrong manner and turning to pick
up the mop. An unusual result from a work-related strain qualifies
as 'an unusual strain' under section 92-418, R.C.M. 1947.
Consequently the district court was correct in holding this was a
compensable industrial accident.
Id., 157 Mont. at
333, 485 P.2d at 695 (italics and emphasis added).
¶64 The rule that "[a]n unusual
result from a work-related strain qualifies" as an industrial accident
has not changed in the twenty-seven intervening years since Robins.
Cf. Marcott v. Louisiana Pacific Corp., 275 Mont.
197, 208, 911 P.2d 1129, 1136 (1996). The statutory reference to "unusual
strain" remains in the Workers' Compensation Act to this day and was
applied by this Court in the recent case of Lisa B. Larsen-English
v. Lumbermens Mutual Casualty Co., WCC No. 9512-7465 (June
¶65 The "unusual result"
part of the Robins test of compensability is encompassed within
the current statutory requirement that the unusual strain result in
"internal or external physical harm to the body that is established
by objective medical findings." § 39-71-119(1)(a), MCA (1995). That
requirement is met. Dr. Downey initially diagnosed a new and different
condition from the patellar tendinitis claimant had suffered several
months previous. He diagnosed a meniscal tear and specifically related
it to the February 19 incident. His diagnosis was based on an objective
medical test -- McMurray's sign -- involving the physician flexing the
patient's knee and applying varus and valgus stresses on the knee in
an attempt to evoke pain. While there is some subjectivity in the test
vis-a-vis the patient's perception of pain, the test is at least partially
objective and is the best indicator of a torn meniscus. Along with history
and the remaining clinical examination, it is as reliable an indicator
of a meniscal tear as MRI or other imaging. (Downey Dep. at 25-26.)
¶66 The fact that arthroscopic
surgery, performed eight and a half months after originally scheduled,
did not find a torn meniscus does not establish that
claimant did not suffer an injury on February 19. Dr. Downey testified
that a tear may have been present and healed during the intervening
months and that if claimant's injury was not a meniscal tear then claimant
suffered "a sprain which would be a tear of the capsule of the knee."
(Downey Dep. at 47.) Dr. Downey was steadfast in his opinion that claimant
suffered an injury on February 19.
¶67 As set out in my findings,
I found Dr. Downey's opinions more persuasive than those of Dr. Lovitt,
and I have adopted Dr. Downey's opinions in the findings. Dr. Downey
was the treating physician. As such, his opinions are entitled to special
weight. "As a general rule . . . the testimony of a treating physician
is entitled to greater evidentiary weight." although it is not conclusive.
Kloepfer v. Lumbermen's Mut. Cas. Co., 276 Mont. 495, 498,
916 P.2d 1310, 1312 (1996). At minimum, the treating physician is the
tie breaker where there is evenly balanced, conflicting medical testimony.
In this case, not only was Dr. Downey the treating physician, he had
the greater medical expertise with respect to claimant's knee condition.
The insurer provided no basis for the Court to prefer Dr. Lovitt's opinions.
IV. Attorney Fees and Penalty
¶68 Claimant is entitled
to attorney fees and to a penalty. Both require proof that the insurer
acted unreasonably, § 39-71-611 and -2907, MCA, 1995, and that proof
has been provided.
¶69 Dr. Downey aptly described
the insurer's conduct in his August 12, 1996 letter to the insurer,
when he said:
I think that Guy Wall
has been left out "hanging to dry" and there has been little effort
to expedite treatment for his condition.
(Ex. 7 at 14.) The insurer's
attitude towards the claim is reflected by its failure to ascertain
Dr. Lovitt's specific qualifications in arthroscopic surgery and knee
injuries. The adjuster and insurer simply didn't care whether Dr. Lovitt
was as qualified as Dr. Downey. They had Dr. Lovitt's opinions and were
determined to ride with those opinions no matter what.
¶70 As evidenced by Mr. Herndon's
September 24, 1996 letter, the insurer had no regard for the actual
facts of the case or for the claimant's plight. While relying on Dr.
Lovitt's opinions, which included an opinion that claimant was suffering
from an occupational disease, Herndon notified claimant that every one
of his claims, including the occupational disease claim, was denied.
Herndon further stated that claimant's knee symptoms following the February
19 incident "appears to be essentially indistinguishable from those
found by Dr. Downey on 6/27/95 . . . ." (Ex. 5 at 10.) That statement
had no basis in fact. Even Dr. Lovitt found that the patellar tendinitis,
for which claimant had been treated on June 27, 1995, had resolved and
opined that claimant's knee problem arose from his meniscus.
¶71 Since claimant has prevailed,
he is entitled to his costs.
¶72 On February 19, 1996,
the claimant suffered a compensable industrial injury to his knee.
¶73 National Union Fire Insurance
Company is liable for the cost of all medical care for claimant's knee
which has been rendered since February 19, 1996, including the December
31, 1996 arthroscopic surgery and the psychological care provided on
account of claimant's ensuing depressive disorder. The parties have
not asked the Court to determine the amounts due. However, the Court
retains continuing jurisdiction over medical benefits in the event they
are unable to agree on the amounts.
¶74 National Union Fire Insurance
Company is liable for and shall pay claimant temporary total disability
benefits from March 25, 1996, when claimant was taken off work, through
February 19, 1997, the date on which Dr. Downey found claimant to be
at maximum medical improvement. The benefits are subject to the six-day
waiting period prescribed by section 39-71-736, MCA (1995). The Court
was not requested to calculate the benefits and has not done so. However,
it retains continuing jurisdiction to decide the amount in the event
the parties are unable to agree on the benefits due.
¶75 As a penalty, National
Union Fire Insurance Company shall pay claimant an additional sum of
20% of all benefits, including medical benefits, which are presently
due and which may become due in the future.
¶76 National Union Fire Insurance
Company shall pay claimant his reasonable attorney fees in an amount
to be determined at a later date. ARM 24.5.343.
¶77 National Union Fire Insurance
Company shall pay claimant his costs of this action. Within 10 days
of this judgment, claimant shall submit an itemized memorandum of costs.
Within 10 days thereafter, National Union shall submit its objections,
if any, to the submitted costs. Claimant may reply to any objections
within 10 days thereafter.
¶78 This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.
¶79 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 24th day of February, 1998.
c: Mr. Richard J. Pyfer
Mr. Donald R. Herndon
Submitted: November 14, 1997
last full paragraph of Herndon's September 24, 1996 letter, reads as
The insurer takes note
of your letter to Barb Gullickson of the Employment Relations division
dated September 5, 1996, which includes the following:
After discussing the matter
with Mr. Wall, he is prepared to withdraw his ODA claim which was
filed in June of 1995 when he was experiencing a condition which his
physician referred to as patellar tendinitis. . . .
This is an expression
of a future intention to withdraw the occupational disease claim and
is not a specific direction to the Employment Relations Division to
consider that claim withdrawn. Since the occupational disease claim
appears to be the only potentially viable claim, it is the opinion
of the insurer that the panel examination previously set for September
16, 1996, should be rescheduled and completed with the full cooperation
of Mr. Wall. If Mr. Wall did keep the September 16, 1996, appointment
with Dr. Charles Canty, we'd appreciate being advised of that fact.
(Ex. 5 at 11.)
operative note, Exhibit 27 at 77, indicates that inspection was "remarkable
for some Grade I cartilage degeneration at the posterior aspect of the
medial tibial plateau." Dr. Downey performed some minor trimming and
shaving of the synovium, of a small spur at the medial edge of the patella,
and of the most lateral edge of the anterior cruciate ligament. (Ex.
27 at 78.)