Pain

MONTANA SUPREME COURT CASES
Satterlee v. Lumbermen's Mutual Casualty Co., 280 Mont. 85, 929 P.2d 212 (1996) An employer takes its employee as it finds her and if her disability is aggravated by an underlying physical or emotional condition that diminishes her ability to deal with pain, that employer is liable for disability which results from that aggravation.
 
MONTANA WORKERS' COMPENSATION CASES
Healy v. Liberty Northwest [10/23/07] 2007 MTWCC 43 Where a doctor had previously concluded that a claimant’s complaints of pain were subjective and did not correlate with any objective medical findings, the Court is unpersuaded by the doctor’s further opinion that this “pain” is related to a previous injury and not the injury which is the subject of the present case.
Evans v. Liberty [06/20/07] 2007 MTWCC 23 Arm and shoulder symptoms which manifested themselves as “normal aches and pains” which alleviated with rest gave Petitioner no reason to suspect he suffered from a medical condition requiring diagnosis and treatment. Therefore, it was not until the symptoms progressed to a point where the symptoms could no longer be attributed to “normal aches and pains” that Petitioner knew or should have known he was suffering from an occupational disease.
Boster v. Liberty Mutual Fire Ins. [12/19/02] 2002 MTWCC 64 Claimant who has not worked since 1994 back injury not entitled to total disability benefits where Court was absolutely persuaded, based on entire record, including video surveillance tapes, and observation of claimant during trial, that claimant was exaggerating his pain, was unmotivated, and was simply comfortable with his non-working lifestyle.
Key v. Liberty NW Ins. [9/13/01] 2001 MTWCC 53 Pain has both physiologic and mental components.
Johnson v. State Fund [8/20/99] 1999 MTWCC 52 63-year old truck driver fell and hit his head, shoulder, and lower back. Insurer accepted liability, but terminated TTD benefits when a physician released claimant to return to work. Medical records indicate claimant exaggerated his symptoms and failed to cooperate with medical testing and examination. His in-court testimony about his pain and limitations was not credible. While claimant unquestionably suffers from osteoarthritis, there was no objective medical evidence that he could not return to work in identified jobs. While it is possible claimant suffers genuine neck and low-back pain, his invalid responses during IME and FCE testing, his questionable responses during other medical examinations, and his behavior in Court make it impossible for the WCC to determine the true nature of his pain and disability. TTD benefits properly terminated; claimant is not PTD.
Nielson v. State Fund [8/13/99] 1999 MTWCC 49 A 49-year old hot oiler with accepted claims relating to hand and arm pain not PTD where WCC did not credit claimant's testimony and medical records contain numerous indications that subjective pain reports were not supported by objective findings or contradicted by things such as observations of his capabilities and callouses on his hands.
Winfield v. State Fund [7/20/99] 1999 MTWCC 41. Disability is not a wholly medical determination. In addition to claimant's age, education, work history, skills and abilities, pain is another factor the Court must consider in deciding whether claimant is permanently totally disabled. Pain may be so severe for some individuals that it renders them physically incapable of performing regular employment within section 39-71-116(16) (1991), MCA.
Sharp v. Montana Municipal Ins. Authority [5/5/99] 1999 MTWCC 32 In a bench ruling finding claimant permanently totally disabled, Court notes that permanent total disability cases must be judged individually on their "gestalt," but notes the following factors indicating PTD status in this case: (1) claimant had steady employment throughout his life; (2) claimant worked despite having pain over the years; (3) the Court was convinced claimant had serious pain despite taking heavy-duty pain medication; (4) Court was convinced claimant followed medical advice and tried to alleviate his pain; (5) chances were not good that an employer would hire claimant, even if he could work, given his limitations due to pain. Penalty and attorneys fees were not awarded where the case also contained facts pointing away from finding permanent total disability status making the insurer's position reasonable.
DesJardins v. Liberty Northwest Ins. [9/12/97] 1997 MTWCC 50 A 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video showed him to move slowly, stiffly, and gingerly. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993); Killoy v. Reliance Nat'l Indem., 278 Mont. 88, 923 P.2d 531 (1996) (pain is a factor that must be considered in termining PTD status).
Klein v. Liberty Northwest Ins. Corp. [3/4/97] 1997 MTWCC 7 An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Coates v. Liberty Northwest Ins. Corp. [11/18/96] 1996 MTWCC WCC 71 Claim for continued TTD benefits denied where WCC did not credit claimant's reports of pain and disability and found she purposefully exaggerated her complaints to obtain benefits. This conclusion was based on several factors, including: the lack of objective medical evidence of any continued condition; contradiction between her demeanor in court and records of pain behavior displayed for physicians; conflicts between her testimony and that of medical providers; conflicts between her deposition and trial testimony; observations of pain behavior by medical providers.
Loss v. Lumbermen's Mutual Casualty Co. [3/15/96] 1996 MTWCC 24 Pain is a factor which must be considered in determining disability. Metzger v. Chemetron Corporation, 212 Mont. 351, 354, 687 P.2d 1033, 1035 (1984). It is a subjective phenomena and is not objectively measurable. It is not entirely within the realm of expert testimony.
Kloepfer v. Lumbermen’s Mutual Casualty Co. [9/18/95] 1995 MTWCC 70, affirmed Kloepfer v. Lumbermen’s Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996) While pain must be considered in determining the ability of an injured worker to return to work, WCC was persuaded this claimantís ability to return to work was purely a function of her motivation. Although surgeon opined she could work part-time only, his opinion was based on claimantís pain reports, not objective physical limitations. More persuasive opinions came from IME conducted by occupational health and chronic pain experts who found no neurological or physical deficits, pain amplified by psychological factors, and lack of motivation to work. The Supreme Court affirmed in Kloepfer v. Lumbermenís Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996), finding substantial evidence to support the WCCís finding.
Frisbie v. Champion International Corporation [02/10/95] 1995 MTWCC 13 Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation.