FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on February 1, 1994, in
Billings, Montana. Petitioner, James Vossler (claimant), was
present and represented by Mr. Thomas J. Lynaugh. Respondent,
Lumbermens Mutual Casualty (Lumbermens), was represented by
Mr. Thomas A. Marra. Claimant was sworn and testified on his
own behalf. Marilee Vossler, Patrick Stephenson, Donna
Veraldi, Ph.D., and Wallace Mercer were also sworn and
testified at trial. Exhibits 1 through 7 were admitted into
evidence. The depositions of James Vossler, Steven Kuehn,
Debra Weisgarber, Richard Agosto, Ph.D. and Patrick Cahill,
M.D. were accepted by the Court for consideration in reaching
its decision. The parties also agreed that the Court may
consider the post-trial deposition of Bob DeVore.
of Dispute: The claimant in this matter seeks a
determination that he is temporarily totally disabled as a
result of psychological conditions stemming from a September
4, 1990 industrial accident. He seeks retroactive
reinstatement of temporary total disability benefits and
payment for psychotherapy.
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:
is 53 years old. He is married and has two adult children.
Another of claimant's children is deceased as the result
of a car accident in 1980.
is a high school graduate. He has no post-secondary
worked steadily between 1958 and 1990, a period of
approximately 32 years. His work history is as follows:
1958-62 New Tread Tire Shop Sorted, cleaned and painted tires
1962-67 Thompson Dairy Driver/salesman
1967-72 Meadow Gold Driver/salesman
1972-86 Brown Swiss Dairy Driver/salesman; wholesale
1986-89 Meadow Gold (Borden's) Driver/salesman
1990-90 Sweetheart Bakery Relief driver/salesman
Claimant was laid off by Meadow Gold in October 1989 and was
thereafter employed by Sweetheart on January 29, 1990. His
job at Sweetheart was as a relief driver for vacationing
drivers. (Exs. 3 and 4.) As a relief driver he was
responsible for loading and delivering Sweetheart products to
retail stores. He was also responsible for ascertaining
changes in the orders of individual retailers. He drove a
different route each week. A supervisor typically rode with
him during his first two days on a new route to help him
learn the route.
September 4, 1990, the claimant suffered an industrial injury
while making a delivery to a store in Fishtail, Montana.
Claimant was exiting his truck when he slipped and fell.
According to claimant, among other things, he hit his head
and was unconscious for twenty to thirty minutes. I do not
find claimant's estimates of the duration of his
unconsciousness to be reliable. Nonetheless, I am persuaded
that claimant in fact struck his head, lost consciousness for
at least a brief time, and suffered a mild cerebral
concussion. Claimant sought emergency room care that evening
and the emergency room records specifically mention headache,
a loss of consciousness, and a "cerebral
concussion." (Ex. 1 at 136-7.)
addition to a mild concussion, claimant suffered "a
little avulsion chip off his distal fibula" of the left
leg and a left ankle sprain. (Ex. 1 at 60.) He also reported
pain in his lower back and in his left arm, elbow and hand.
(Ex. 1 at 136-7.)
the time of the accident Sweetheart was enrolled under Plan
II of the Workers' Compensation Act and was insured by
Lumbermens accepted the claimant's initial claim for
compensation and assigned it to Intermountain Claims to
John Dorr, an orthopedic surgeon, began treating claimant on
September 5, 1990, the day following the accident. At that
time Dr. Dorr fitted claimant with an ankle brace and took
him off work. (Ex. 1 at 60.)
September 28, 1990, Dr. Dorr approved claimant's return
to work effective October 8, 1990. (Ex. 1, p. 58.)
Claimant returned to work on October 8, 1990, and continued
to work through December 5, 1990.
Lumbermens paid claimant temporary total disability benefits
for the period of September 5, 1990 to October 7, 1990.
After returning to work the claimant continued to see Dr.
Dorr for follow up treatment for his ankle. He also sought
treatment for pain and numbness in his neck and left hand and
arm. He saw Dr. Dorr on October 31, November 7 and November
14, 1990. Dr. Dorr's office notes reflect continued
improvement of the ankle, a diagnostic work-up of
claimant's other complaints, including an EMG, and a
prescription for physical therapy to address claimant's
neck, arm and hand complaints. The office notes do not
reflect any report of back pain on any of these visits, or,
for that matter, on claimant's prior office visit of
September 24, 1990.
December 5, 1990, claimant saw Dr. Dorr and reported that his
back was bothering him. Dr. Dorr's office note for that
date records claimant's complaints as follows:
He reports that his ankle has been steadily getting better
since his accident. However, both his neck and back, which he
injured at the same time, are continuing to give him trouble.
He noted at the time of his injury that he hurt his low back.
He felt this was going to get better. It was x-rayed at the
time of his injury. Evidently no evidence of any fracture was
seen. However the back continues to bother him. (He gets
pain that goes down his left leg. Coughing and sneezing will
increase his discomfort. He notes the leg is numb. He does
not feel he can trust it.) . . .
His arm continues to bother him and with his combined neck
and back discomfort, he's been unable to really pursue
his exercise program. I am planning on getting a lumbar and
cervical myelogram and will go on further treatment after we
get this. Given all his difficulty, I don't think he
could be working at this stage.
at 54; italics added.)
December 5, 1990, Dr. Dorr took claimant off work "until
further notice." The doctor's note for the employer
specifically identifies claimant's "low back
pain" as the reason for doing so. (Ex. 1 at 56.)
reinstated temporary total disability benefits effective
December 5, 1990 and continued to pay those benefits until
November 5, 1992.
than an EMG indication of possible mild left carpal tunnel
syndrome (Ex. 1 at 9), subsequent medical testing failed to
disclose any substantial objective basis for claimant's
complaints. The doctors examining him found little physical
basis for the complaints and concluded that his complaints
had a largely psychological basis.
a. On December 19, 1990, Dr. Dorr reported that
"[n]either the myelogram nor the CT showed any
surgically correctable lesions." (Ex. 1 at 54 and see
Ex. 1 at 121.)
b. On Dr. Dorr's referral, Dr. Neil Meyer, a
neurosurgeon, evaluated the claimant on February 25, 1991.
Dr. Meyer's impressions were:
1. I believe that most likely the patient does not have a
surgical problem in his neck or back. His symptoms
seem to be somewhat out of proportion to the clinical
findings. 2. I believe that there is a good chance of a large
at 98; emphasis added.)
July 1, 1991, Dr. Patrick Cahill, a neurologist, performed an
independent medical examination. Claimant's symptoms at
that time included headaches; neck, left shoulder, and left
elbow pain; low back and left hip pain; left ankle pain; and
numbness in the left hand and hip. Dr. Cahill found no
evidence of any neurologic disease, damage, injury or
disability. He noted the claimant exhibited
"global" dramatic collapsing in a number of muscle
groups, far out of proportion to any pain that was produced.
Dr. Cahill testified by deposition that this collapsing was
due to "some psychological factor that is
occurring." (Cahill Dep. at 12.) He concluded
that claimant was suffering muscular contraction headaches;
cervical, thoracic and lumbar strain; and possible mild left
carpal tunnel syndrome. He further noted claimant's
symptoms were out of proportion to objective findings,
"suggesting a psychological
component." (Ex. 1, p. 7-10.)
d. In a
September 12, 1991 letter to Patrick Stephenson of
Intermountain Claims, Dr. Dorr stated:
Neither myself nor Doctor Neil Meyer felt that he had any
lesions that required surgical treatment. He was also
evaluated by Doctor Cahill who could not find any significant
neurological abnormality. Both Doctor Meyer and Doctor Cahill
felt there was some psychological component to his symptoms.
All three of us have felt that he should be increasing his
activities and do not feel ...