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Vossler v. Lumbermens Mutual Casualty

Court of Workers Compensation of Montana

August 10, 1994




         The 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.

         Nature 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.

         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:


         1.Claimant 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.

         2.Claimant is a high school graduate. He has no post-secondary education.

         3.Claimant 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 supervisor
1986-89 Meadow Gold (Borden's) Driver/salesman
1990-90 Sweetheart Bakery Relief driver/salesman

         (Ex. 3.)

         4. 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.

         5. On 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.

         6. 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.)

         7. In 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.)

         8. At the time of the accident Sweetheart was enrolled under Plan II of the Workers' Compensation Act and was insured by Lumbermens.

         9. Lumbermens accepted the claimant's initial claim for compensation and assigned it to Intermountain Claims to adjust.

         10. Dr. 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.)

         11. On September 28, 1990, Dr. Dorr approved claimant's return to work effective October 8, 1990. (Ex. 1, p. 58.)

         12. Claimant returned to work on October 8, 1990, and continued to work through December 5, 1990.

         13. Lumbermens paid claimant temporary total disability benefits for the period of September 5, 1990 to October 7, 1990.

         14. 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.

         15. On 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.

         (Ex. 1 at 54; italics added.)

         16.On 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.)

         17.Lumbermens reinstated temporary total disability benefits effective December 5, 1990 and continued to pay those benefits until November 5, 1992.

         18.Other 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 hysterical component.

         (Ex. 1 at 98; emphasis added.)

         c. On 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 ...

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