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2000 MTWCC 18
WCC No. 2000-0041
LIBERTY NORTHWEST INSURANCE CORPORATION
JOEL BOS d/b/a/ BOS TOP DAIRY
ORDER REGARDING 39-71-610 BENEFITS
¶1 The petitioner in this case seeks reinstatement of temporary total disability (TTD) benefits and an order directing the insurer to pay for physical therapy and other treatment ordered by his treating physician. (Petition for Hearing (March 3, 2000).) While pursuing his present petition, he also requested the Department of Labor and Industry to order the insurer to pay interim TTD benefits under section 39-71-610, MCA. On March 15, 2000, the Department approved his request. The insurer, Liberty Northwest Insurance Corporation (Liberty), appealed that determination. (March 31, 2000 Letter of Larry W. Jones to the Court.)(1) The appeal was docketed as a part of the Court file in this case.
¶2 On March 31, 2000, the Court held a telephone conference with Mr. Larry W. Jones, attorney for Liberty, and Mr. Geoffrey C. Angel, attorney for petitioner. Counsel agreed to submit the appeal upon medical records and correspondence from Dr. Robert A. Jackson, a family practitioner, and Dr. Scott K. Ross, who specializes in occupational medicine. After reviewing the records and correspondence, and considering the arguments made during the telephone conference, I find that petitioner has failed to present facts sufficient to justify an order for interim benefits.
¶3 The facts before the Court include the allegations of the Petition for Hearing insofar as they are admitted by Liberty's Response to Petition for Hearing, and medical records and correspondence of Dr. Jackson and Dr. Ross, as follows:
The salient facts derived from these sources are set out below.
¶4 Petitioner suffered a work-related back injury on March 14, 1999. He was initially treated by Dr. Jackson, who has continued to provide treatment. Dr. Jackson's medical records are not provided, but from the history taken by Dr. Ross and his medical records review, it appears that petitioner struck his left shoulder, left upper back, and head at work and thereafter complained of headaches, neck pain, left arm pain, and pain and numbness of the left hand. At Dr. Jackson's request, he was examined by Dr. Kofman, who is apparently a neurologist. According to Dr. Ross, Dr. Kofman's May 7, 1999 neurological examination of petitioner was normal.
¶5 Dr. Ross then examined petitioner on July 30, 1999, and found claimant not at MMI. Dr. Ross prescribed a treatment plan which included tapering of narcotic medications, a home exercise program, and consideration of a work-conditioning program. It is not clear who made the referral to Dr. Ross.
¶6 Thereafter, on September 20, 1999, claimant began a work-conditioning program under the supervision of a physical therapist. The therapist examined him and instructed him "in lumbar extension exercises and cervical retraction exercises." He was scheduled for a daily "work condition program" to "be followed by physical therapy as appropriate."
¶7 Following the September 20th session, petitioner complained of severe headache and back pain. Dr. Ross saw him the next day, September 21, 1999, and commented, "In my opinion, the patient exhibits exaggerated and embellished pain response throughout the evaluation." The doctor prescribed that petitioner continue his medications, add over-the-counter Tylenol for headaches, and continue with work conditioning, limiting his lifting to less than 25 pounds. Petitioner did not return to the work-conditioning program and apparently did not keep a September 24, 1999 appointment with Dr. Ross. His failure to do so is not explained in the information provided to the Court.
¶8 On September 25, 1999, Dr. Ross replied to an inquiry from an RN employed by Liberty, apparently as a medical case manager. In his reply, he found petitioner at MMI, found no impairment, and determined that claimant had no physical restrictions as a consequence of his 1999 injury. On November 12, 1999, Dr. Ross reported he had reviewed additional medical records of Dr. Jackson and that the records did not change his opinions.
¶9 Dr. Jackson disagrees with Dr. Ross. In a November 17, 1999 letter to petitioner's attorney, he states:
(Medical Records of Dr. Jackson and Dr. Ross at 1.) The quoted material is the only medical information provided by or for Dr. Jackson.
¶10 The appeal under consideration involves section 39-71-610, MCA (1999), which provides:
As I concluded in a recent decision, Kevin Smith v. State Compensation Ins. Fund, 2000 MTWCC 9 (February 17, 2000), the Court's jurisdiction under the section is de novo. Thus, both parties must be afforded an opportunity to present their position.(2)
¶11 The recent Smith decision also sets out criteria for determining whether to grant interim benefits under section 39-71-610, MCA:
Smith at 6. This is an accepted liability case, therefore the Court will examine the length of time benefits were paid to petitioner, any financial hardship to petitioner on account of the cut-off of benefits, and the facts supporting his case for reinstatement of TTD benefits.
¶12 The duration of benefits is not clear other than it was less than a year. If benefits commenced right after the injury and terminated shortly after Dr. Ross' MMI opinion, then petitioner was on benefits for approximately seven months. The duration of benefits is not insignificant.
¶13 Neither petitioner nor Liberty has furnished any information concerning financial hardship. Therefore, this factor is neither a positive or negative indicator for interim benefits.
¶14 The last factor - the petitioner's prima facia case on the merits - is the critical factor in this case. The Court has only limited information. That information shows a conflict of medical opinions. If that was all that were involved, then I would more probably than not find that petitioner has presented a "strong prima facia case for reinstatement of benefits." He is not required to persuade me he will prevail, only that his prima facia case for reinstatement is supported by some evidence which is substantial and not facilely disregarded. In this case, however, Dr. Jackson's opinion that petitioner has not reached MMI is predicated on his further opinion that petitioner will benefit by work hardening and physical therapy. But where a claimant refuses treatment which may improve his condition, he is at MMI since lacking his commitment to therapy his medical condition will not improve. Petitioner was offered work hardening and physical therapy assistance in September 1999 but dropped out of the program. He has provided no explanation showing that his failure to continue in the program or keep his September 24, 1999 appointment with Dr. Ross was reasonable and justified.
¶15 I therefore conclude that petitioner has not presented a sufficient case for reinstatement of benefits.
¶16 For the reasons set forth in the foregoing discussion, the March 15, 2000 Order Reinstating Benefits Pending a Hearing is reversed and set aside. Petitioner's request for interim benefits under section 39-71-610, MCA, is dismissed.
DATED in Helena, Montana, this 4th day of April, 2000.
c: Mr. Geoffrey C. Angel
Submitted: March 31, 2000
1. Because of the need for prompt decisions in section 39-71-610, MCA, appeals, the Court permits the appeals to be initiated by letter or other written communication and has not required the filing of a formal pleading. The Court presently has under consideration a proposed Court rule which will expressly authorize that informal procedure in section 39-71-610, MCA (1999) cases.
2. Labeling a request for review by the Court an "appeal" is a misnomer. Nonetheless, since the statute uses the word "appeal," that term is loosely used by the Court in considering section 39-71-610, MCA (1999) requests.
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