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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2000 MTWCC 23
WCC No. 9911-8347
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: 38 year-old former delicatessen worker sought additional temporary total disability benefits, claiming she had not reached MMI following back injury. IME physician, an orthopedic surgeon, examined claimant and also reviewed records of claimant's extensive medical history, concluding she had a long history of back pain and finding she had returned to her pre-injury baseline. Claimant's physician gave a later MMI date based on his general experience with back injuries. He did not review medical records until the day before trial. Insurer demonstrated through detailed review of medical records that claimant had history of seeking drugs and was not a credible witness.
Held: Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not a credible witness, WCC rejected her testimony about continued disability and that of physician who had not reviewed complete medical records before rendering opinion. Claimant not entitled to continued TTD.
¶1 This trial in this matter was held on January 18, 2000, in Missoula, Montana. The petitioner, Jody Block (claimant), was present and represented by Mr. Rex Palmer. Respondent, Indemnity Insurance Company (Indemnity), was represented by Mr. Leo S. Ward.
¶2 Exhibits: Exhibits 1 through 17 and 19 through 21 were admitted without objection. Exhibit 18 was withdrawn. Exhibit 22 was consolidated with Exhibit 21.
¶3 Witnesses and Deposition: Claimant, Dr. Gary Cooney, and Michelle Fairclough testified at trial. The deposition of claimant was also submitted for the Court's consideration.
¶4 Issues: As rephrased by the Court, the following issues are presented:
¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition and exhibits, and the arguments of the parties, the Court makes the following:
Findings of Fact
¶6 Claimant is 38 years old. She dropped out of school in the 10th grade and does not have a GED.
¶7 Claimant's testimony concerning her work history was inconsistent in places and contradicted by medical records in others. She testified in her deposition that after moving to Montana in 1986, she worked a short time for West Mont as a home care provider, quit that job, then worked caring for an elderly woman for approximately five years. (Block Dep. at 10-12.) She then testified that she couldn't work for several years because her boy friend harassed and stalked her. Her testimony indicates this went on for eight years. (Id. at 12-13.) Later in her deposition she indicated she was unemployed only two years. (Id. at 21.) Her trial testimony was that she was unemployed for four or five years. Medical records indicate that she was working as a home care provider in early 1996, (ex. 21 at 16, 20-21), but she denied working at that time.
¶8 In late 1996 claimant was hired by Moody's Markets (Moody's) in Lolo, Montana, to work in its delicatessen.
¶9 On March 24, 1998, the claimant hurt her back at work while lifting a 50 pound bag of flour. She filed a claim for compensation.
¶10 At the time of her injury, Moody's was insured by Indemnity, which accepted liability for her claim.
¶11 On the same day as her injury, claimant sought care at the emergency room of Community Medical Center in Missoula. (Ex. 21 at 159-165.) At that time she was complaining of "thoracic spine pain radiating down to her lower back," along with "radiation of the pain down her right buttock." (Id. at 161.) Upon examination, the only noteworthy finding was "tenderness" in the right back and buttock. (Id.) The ER physician diagnosed "[b]ack strain," prescribed Ibuprofen, Lortab (a narcotic analgesic with acetaminophen) and Valium; discharged her to home; and instructed her to follow-up with Dr. Ned F. Vasquez, who is claimant's family physician. (Id.)
¶12 Three days later, on March 27, 1998, claimant returned to the Community Medical Center ER and advised the ER physician that she had an appointment with Dr. Vasquez for the next Monday but was nearly out of pain medication and "would be out of pain medication over the weekend." (Id. at 157.) The doctor wrote prescriptions for refills of Lortab and Valium.
¶13 Dr. Vasquez saw claimant on March 30, 1998. (Ex. 8 at 4-5.) On his examination he noted tenderness involving virtually her entire back from the neck down. (Id.) In his assessment, he wrote:
(Id. at 5.) He prescribed various medications, including Lortab, and physical therapy. (Id.)
¶14 Following three physical therapy sessions (id. at 5-15), claimant returned to Dr. Vasquez on April 10, 1998. At that time she reported "she is ‘miserable' and proceeds in describing numerous Sx [symptoms]." (Id. at 16, quotation marks in original.) Dr. Vasquez commented:
(Id.) He recommended a neurosurgical consultation. (Id.)
¶15 Dr. Richard C. Dewey, a neurosurgeon, examined claimant on April 21, 1998. She reported pain in different spots of her back, "first in one spot, then the other." (Ex. 13 at 1.) Upon examination, Dr. Dewey found "[m]arked spasm in the trapezii and the rhomboids bilateral and tenderness on all of the erector muscles of the spine." (Id.) He diagnosed a "typical case of fibromyalgia or migratory muscle spasms," recommended a good stretching program, and indicated she could return to work "when she is more comfortable." (Id. at 2.) He did not restrict her from heavy lifting but recommended she prepare herself before lifting and that she stretch hourly. (Id. at 2.)
¶16 Dr. Dewey saw claimant again on May 26, 1998, in follow-up. At that time he noted she was "much better than she was a month ago." (Ex. 8 at 25.) He noted, however, that she was not doing her stretching exercise effectively and reinstructed her on stretching. He released her to return to work without restriction. (Id.)
¶17 Meanwhile, on April 30, 1998, claimant went to Dr. Gary D. Cooney, a neurologist for evaluation. In her history to Dr. Cooney, claimant reported she had "intermittent problems with pain in various areas of her back for a number of years," which had generally responded to non-steroidal anti-inflammatory drugs. (Ex. 7 at 1.) She reported her pain following her March 24th injury as predominantly in the T7-T10 area on the right side with achy discomfort in the right lumbar and cervical-trapezius regions. She told Dr. Cooney that she had experienced no substantial improvement in her back pain since the injury. (Id.)
¶18 Dr. Cooney reported that claimant had some tenderness of her back upon examination and some degree of kyphoscoliosis, but the exam was otherwise unremarkable. (Id.) He diagnosed "[t]horacolumbar strain/sprain injury" and prescribed various medications. (Id. at 3.)
¶19 Dr. Cooney saw claimant again on June 1, 1998, six days after she had last been seen by Dr. Dewey. As did Dr. Dewey, he noted improvement in claimant's complaints. He released her to return to work as of June 4, 1998, however, he restricted her to lifting 50 pounds or less. (Id. at 6.)
¶20 Claimant then went back to work at Moody's sometime in June. (See Ex. 20 at 16-17.) On June 19, 1998, she went to Community Medical Center complaining that she had been lifting heavy objects at work and reinjured her back. (Ex. 21 at 85.) She reported low-back pain and pain shooting down both legs. (Id.) The physician examining her diagnosed low-back sprain. (Id.) He instructed her to return to Dr. Vasquez.
¶21 On July 13, 1998, claimant returned to Dr. Cooney complaining of increased mid-thoracic pain due to work, which she reported was more physically demanding than her preinjury work. (Ex. 7 at 8.) Dr. Cooney took her off work for a month. (Id.) On August 10, 1998, claimant reported no significant improvement to Dr. Cooney and he extended her off-work status another six weeks.
¶22 Following the July 13th visit to Dr. Cooney, claimant never returned to work at Moody's.
¶23 At the request of
the insurer, Dr. Catherine C. Capps, an orthopedic surgeon, did an independent
medical examination of claimant on September 15, 1998. Dr. Capps also
reviewed claimant's medical records dating back to at least as early
as 1994. Her report is found at Exhibit 9. In it she points out that
claimant has a long history of back pain dating back to age 15. Her
back complaints led to multiple x-rays of all portions of her spine
in 1994 and 1995. In 1996 she tested positive for HLA-B27, an antigen
associated with ankylosing spondylitis, and was diagnosed by a rheumatologist
as suffering from ankylosing spondylitis (rheumatoid arthritis of the
spine). Dr. Capps' diagnosis was "[p]robable lumbar strain superimposed
on underlying ankylosing spondylitis." (Ex. 9 at 6.) She found
that claimant had returned to her preinjury baseline and was at maximum
medical improvement (MMI).
¶25 In this proceeding, claimant seeks reinstatement of her TTD benefits through at least the date of hearing.
¶26 In support of her
request, claimant presented the testimony of Dr. Cooney. He testified
that claimant reached MMI on March 24, 1999. Claimant presented no evidence
of a later MMI date. Further, she was employed as a home care provider
for Olive Jacobs, an elderly lady, from December 31, 1998, until March
15, 1999. (Exs. 4 and 19 at 9.) At best, she would be entitled to 11
additional days of benefits for December 29 and 30 and March 15 through
¶28 A review of medical records furnished the Court shows claimant had chronic back pain prior to her 1998 injury. Among other treatments, she had been treated with physical therapy, a TENS unit, and narcotic analgesics. The following is a brief synopsis of that history:
¶29 A review of medical records shows that claimant was at best a poor historian after her injury, failing in many instances to mention her prior history of back pain. In point of fact, during her initial March 24, 1998 medical examination immediately following her accident, she denied any prior back injuries. (Ex. 21 at 5, 83, and 161.) At trial she agreed her statement was untrue but could not explain why she made it.
¶30 The medical records are replete with evidence of drug abuse, showing that claimant was obtaining narcotic drugs from different sources and not disclosing the prescription of one provider to another. She probably suffered drug overdoses on two occasions.
¶31 During cross-examination, claimant was taken through medical records indicating multiple instances of back pain and narcotic prescriptions prior to her March 1998 injury. Indeed, on December 30, 1997, claimant reported back and neck pain; she requested and obtained a prescription for Lortab, a narcotic analgesic. (Id. 21 at 31.)
¶32 The following post-injury history of claimant's inappropriate seeking of narcotic drugs was adduced in cross-examination:
The Court stops its review here.
¶33 Claimant's explanations at trial were not credible and her drug seeking behavior lead me to conclude that she exaggerated her pain and condition to obtain narcotics.
¶34 At trial, Dr. Cooney disagreed with Dr. Capps' MMI finding. His diagnosis was based on claimant not having any history of significant pain prior to her injury and claimant's report that she had not returned to preinjury status. His opinion is only as good as his understanding of claimant's history. A review of claimant's preinjury medical records shows that she had a significant history of back pain preinjury, and had taken narcotic analgesics for it. Dr. Cooney was unaware that claimant had been prescribed narcotic drugs and a TENS unit for back pain prior to the 1998 injury, and agreed that the history was significant. As to claimant's report that she had not returned to preinjury status, the Court simply does not believe her pain reports. As the narcotics history above demonstrates, claimant was abusing narcotic drugs, seeking narcotic drugs from multiple sources and not reporting prescriptions written by one physician to other physicians treating her. When cut off benefits she went to work but did not report that fact to Dr. Cooney.
CONCLUSIONS OF LAW
¶35 Claimant's entitlement to benefits is governed by the 1997 version of the Workers' Compensation Act since that version was in effect at the time of her injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶36 The claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. 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).
¶37 Claimant is seeking reinstatement of temporary total disability benefits. Her request is governed by sections 39-71-701 and -116(34), MCA (1997). Section 39-71-701, MCA, provides in relevant part:
Section 39-71-116(34) provides:
As the Court has found, claimant reached MMI prior to the termination of her benefits. She is therefore not entitled to further TTD benefits.
¶38 Claimant argued at trial that the notice of termination of benefits was ineffective, however, her argument was premised upon the Court finding that she had not reached MMI at the time the notice issued. The argument was addressed at hearing and rejected by bench ruling. Since the Court has found that claimant reached MMI prior to the cutoff of her benefits, the argument need not be further addressed here.
¶39 Since claimant is not entitled to further TTD benefits, she is not entitled to either an attorney fee or a penalty since both require that she prevail on the merits. §§ 39-71-612 and -2907, MCA (1997).
¶40 Claimant is not entitled to her costs since she has not prevailed.
¶41 1. Claimant is not entitled to further temporary total disability benefits, attorney fees, a penalty, or costs. Her petition is dismissed with prejudice.
¶42 2. 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.
¶43 3. This Judgment is certified as final for purposes of appeal.
DATED in Helena, Montana, this 18th day of April, 2000.
c: Mr. Rex Palmer
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