FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

¶1 The trial of this matter was held on May 27, 1998, in Kalispell, Montana. Petitioner, Tami Waite (claimant), was present and represented by Mr. David W. Lauridsen. The respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams.

¶2 Exhibits: Exhibits 1 through 12 were admitted without objection.

¶3 Witnesses and Depositions: The claimant and Larry Goroski testified. The parties also submitted depositions of Drs. Patrick Galvas and James D. Hinde.

¶4 Issues: Claimant asks the Court to find her permanently totally disabled. She also requests a penalty, attorney fees and costs.

¶5 Bench Ruling: After hearing the trial testimony and reviewing the depositions and exhibits, the Court found claimant to be permanently totally disabled. However, I held that the State Fund did not act unreasonably and that claimant is not entitled to either attorney fees or a penalty. Because she prevailed, claimant is entitled to costs.

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¶6 Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

¶7 The claimant is presently 35 years old. She has worked as a waitress, bartender, in an auto shop, and as a receptionist.

¶8 Claimant was employed by Dick Irvin, Inc. (Irvin), for approximately three years, with a one-year interruption in her employment. Irvin is a trucking firm. Claimant worked primarily as a receptionist, answering the phone and entering information from truckers' log books into a computer database. The latter activity employed some sort of electronic wand. She also carried messages back and forth to dispatchers. Her job was sedentary.

¶9 On January 8, 1997, claimant slipped and fell on ice while working for Irvin. She injured her low back.

¶10 At the time of claimant's injury, Irvin was insured by the State Fund, which accepted her injury as compensable.

¶11 As a result of her injury, claimant has experienced severe, debilitating pain in her low back, hips and legs. The pain is always present. She is on numerous medications, including MS Contin, which is controlled release morphine.

¶12 As a result of her pain, claimant suffers from tremors (shaking), principally in her lower body.

¶13 Since her injury, claimant has been seen by numerous doctors. She was initially treated by Dr. Robert Clary, who is apparently her family physician. She has also been seen or treated by Dr. Dale Schaefer, a neurosurgeon; Dr. Patrick Galvas, a board certified physiatrist; Dr. Paul Gorsuch, another neurosurgeon; and Dr. Terry L. Jackson. At the request of the State Fund, claimant was also seen by Dr. James Hinde, a board certified physiatrist.

¶14 Dr. Galvas has been claimant's primary treating specialist with regard to her condition.

¶15 I have reviewed the medical records submitted by the parties. I have also reviewed Dr. Galvas' and Dr. Hinde's depositions.

¶16 I need not go into a detailed analysis of all of the medical evidence in this case. There is no serious dispute that claimant suffers serious pain. There is no serious dispute that her tremors are real and a consequence of her pain. The best evidence concerning the origin of her pain is that she suffered injuries to her sacroiliac joints and/or her interspinous ligaments.

¶17 Claimant attempted a trial return to work on two occasions. On the first, which occurred in 1997, she worked for two hours and was sent home by her employer because of her pain. The second occurred approximately a month ago with the approval of both Drs. Hinde and Galvas. Claimant worked two hours on one day. Her two hours of work caused an increase in her pain. She saw Dr. Clary, who took her off work altogether. Dr. Clary wrote the State Fund on May 6, 1998, as follows:

(Ex. 10 at 8a.)

¶18 Both Dr. Galvas and Dr. Hinde agree that claimant has reached maximum medical improvement. While this Court has some reservations concerning that view, and in particular whether further treatment might benefit claimant and increase the level of her functioning, their opinions are the best evidence regarding her healing status.

¶19 In his deposition, Dr. Galvas opined that claimant is unable to return to even sedentary employment and that she is permanently totally disabled. Dr. Hinde is more optimistic. He believes that claimant can learn to overcome her tremors and can return to sedentary work through a program involving a gradual return to work.

¶20 Claimant bears the burden of persuading me, on a more likely than not basis, that she has reached maximum medical improvement and is presently unable to work. On that basis, I find that she is in fact permanently totally disabled. Her pain is not seriously disputed. Her tremors are documented and not disputed, although Dr. Hinde believes that they can be eliminated by learning and distraction. There is some evidence supporting his opinion in the surveillance video of claimant.

¶21 In this case, the "treating physician" rule requires that I give greater weight to Dr. Galvas' opinion. Both Dr. Galvas and Dr. Hinde are physiatrists. There is no evidence that one is more qualified in their specialty than the other. Dr. Galvas has treated claimant over a longer time and is more familiar with her condition. His opinion is bolstered by claimant's apparent motivation to return to work if she were able to do so. Claimant had a good relationship with her employer, and I am persuaded that if she could return to work she would do so.

¶22 Certainly, as Dr. Hinde indicated in his testimony, there may be psychological factors contributing to claimant's ability to overcome her tremors, deal with her pain, and return to work. Serious injuries and severe pain invariably have an impact on the injured worker's psyche, but there is no suggestion that claimant's physical symptoms and pain are in any way feigned or exaggerated.

¶23 Judges determine facts and apply law, but they are not insensitive robots. This judge is convinced that neither the claimant nor the State Fund should take this decision as the final word. In finding claimant to be presently permanently totally disabled, I do not find that her condition will never improve or that she will never be able to return to work. I am inclined to agree with Dr. Hinde's more optimistic assessment that claimant can overcome her tremors and learn to live with her pain. While I am persuaded by a 51% probability that claimant is presently permanently totally disabled, I am also persuaded that there is a 49% probability that she can overcome her current disability. Her disability does not just affect her employability, it affects every aspect of her life. It affects her family and friends. I therefore urge both claimant and the State Fund to explore further evaluation and treatment which might increase claimant's level of functioning and enable her to return to work.

¶24 The State Fund has not acted unreasonably in its handling of this claim. While it refused to concede that claimant is permanently totally disabled, it has continued to pay her total disability benefits. Dr. Hinde's opinions also furnished a reasonable basis for the State Fund's assertion that the claimant is employable and not permanently totally disabled.

CONCLUSIONS OF LAW

¶25 The claimant was injured on January 8, 1997. Her claim is therefore governed by the 1995 version of the Workers' Compensation Act in effect at that time. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).

¶26 Permanent total disability benefits are governed by section 39-71-702, MCA (1995). That section provides in relevant part:

Permanent total disability is defined in section 39-71-116, MCA (1995), as follows: