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Byun v. Montana Schools Group Insurance Authority

Court of Workers Compensation of Montana

June 21, 1995

LINDA BYUN Petitioner
v.
MONTANA SCHOOLS GROUP INSURANCE AUTHORITY Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: Claimant, who fell on her buttocks and shoulder blade after slipping on ice, underwent two neck surgeries, but suffered continued shoulder blade pain. Twho physicians treating claimant, a neurosurgeon and a physiatrist, agree claimant suffers from thoracic outlet syndrome and should be treated for that condition. The records of a second physiatrist provide some support for this conclusion. In contrast, three physicians who conducted an independent medical examination for the insurer concluded claimant does not suffer from thoracic outlet syndrome and find her current medical condition unrelated to the industrial accident.

         Held: Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight. Claimant is suffering from thoracic outlet syndrome, requires treatment for that condition, and remains temporarily totally disabled until she reaches maximum medical healing following additional treatment.

         Topics:

Medical Evidence: Conflicting Evidence. Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight.
Proof: Conflicting Medical Evidence. Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight.
Medical Conditions (By Specific Condition): Thoracic Outlet Syndrome. Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight. Claimant is suffering from thoracic outlet syndrome, requires treatment for that condition, and remains temporarily totally disabled until she reaches maximum medical healing following additional treatment.
Physicians: Treating Physician: Weight of Opinions. Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight.
Physicians: Conflicting Evidence. Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight.

         The trial in this matter was held on December 12, 1994, in Kalispell, Montana. The petitioner, Linda Byun (claimant), was present and represented by Ms. Laurie Wallace. Respondent, Montana Schools Group Insurance Authority (MSG), was represented by Mr. Leo S. Ward. Claimant testified on her own behalf. Exhibits 1 through 6 and 8 were admitted by stipulation. Exhibit 7 was admitted over claimant's objection. Exhibit 9 was admitted for demonstrative purposes only. The depositions of claimant, Dr. John Demakas, Jean Carmen, Mickey Rosato, Anne Pazza, and Dr. Ethan Russo were admitted.

         Issues presented: Claimant seeks payment of medical expenses for treatment by a thoracic outlet specialist. She also seeks a continuation of temporary total disability benefits, attorney fees and a penalty.

         FINDINGS OF FACT

         1. Claimant is presently forty-eight (48) years of age. She has lived and worked in Troy, Montana all of her adult life. She has a high school education and has worked as a bartender, waitress and janitor. (Tr. at 31-32.)

         2. In 1980 claimant began working at the Troy High School as a janitor. (Tr. at 31.) In 1988 claimant took a second job at the Trojan Lanes, a bowling alley, doing janitorial work.

         3. On January 19, 1991, claimant suffered an industrial injury in the course and scope of her employment with Troy Public School. (Tr. at 34.) She slipped on icy steps, became airborne and landed on her buttocks. She also hit her shoulder blade. (Tr. at 35; Ex. 4 at 178.)

         4. At the time of the accident, the Troy Public School was enrolled under Compensation Plan No. 1 and was self-insured through MSG. The claim was adjusted for MSG by Alexsis Risk Management.

         5. MSG accepted liability for claimant's injury and has paid medical benefits and temporary total disability benefits.

         6. Prior to her injury in January of 1991, claimant suffered numerous injuries and ailments. (Tr. at 52-56, 63-70.) While MSG has taken great pains to outline those injuries and ailments, they were not significant to the ultimate medical opinions expressed in medical records and by the two physicians who testified in this case.

         7. Following her fall, the claimant felt pain in her tailbone and back. However, she continued working and finished her work shift for that day.

         8. Claimant first sought medical care on January 22, 1991, when she saw Dr. Griffith in Troy, Montana. Dr. Griffith's office note reflects that claimant reported she had fallen on January 19, 1991, and struck her tailbone and shoulder blade area. (Ex. 2 at 178.) At the time of his examination, claimant had tenderness and a bruise over the coccyx (tailbone) and pain in her right hip. (Id.) Dr. Griffith prescribed Motrin (Id.), which is an anti-inflammatory and analgesic.

          9. Within two weeks of her fall, the claimant began experiencing headaches and neck pain, along with numbness in her arms. (Tr. at 38-40.) On February 3, 1991, claimant's symptoms were sufficiently serious that she sought treatment at the emergency room of St. John's Lutheran Hospital in Libby, Montana. (Rosato Dep. Ex. 2 at 74.) The emergency room records noted claimant's fall two weeks prior and stated that she reported fracturing her coccyx and "now has developed neck pain," and both her hands and arms are "going to sleep." (Id.) The diagnosis made at that time was a cervical strain and a contusion of her coccyx. (Id.)

         10. A cervical myelogram and a CAT scan were done at Deaconess Medical Center in Spokane, Washington on February 19, 1991. The myelogram report noted "[m]oderate sized hard and/or soft discs are seen bilaterally at the C4-5 level". (Ex. 4 at 162 and 163.)

         11. Claimant was referred to Dr. John Demakas, a neurosurgeon in Spokane, Washington. Dr. Demakas examined claimant for the first time on March 18, 1991. He recorded that claimant was suffering neck pain radiating into her shoulder, headaches, and occasional numbness and tingling in her "third, fourth, and fifth fingers primarily of the right hand but also the left hand and only at night awakening her." (Ex. 4 at 160.) He reviewed the reports of the cervical myelogram and CAT scan done on February 19, 1991. (Id.) He recommended surgery.

         12. On April 16, 1991, Dr. Demakas performed a cervical discectomy and fusion at the C4-5 level. (Ex. 4 at 156; Demakas Dep. at 8.) He found extruded disc fragments, indicating "fresh disc pressure." (Demakas Dep. at 8-9.)

         13. Following her surgery the claimant's neck pain initially improved but she developed considerable pain over her right scapula (shoulder blade). (Ex. 4 at 126, 130, 134; Demakas Dep. at 9.) Dr. Demakas prescribed physical therapy and a trial of a TENS unit to aid in her rehabilitation. (Ex. 4 at 143-152.)

         14. When claimant continued to have scapular pain, Dr. Demakas decided that she should be treated conservatively and referred her to Dr. Aleksandra Zietak, a physiatrist. (Demakas Dep. at 10.)

         15. Dr. Zietak examined claimant on September 13, 1991. (Ex. 4 at 126.) At that time claimant reported right shoulder blade pain radiating into her neck and right upper arm. She also reported "occasional numbness in her hands, more so on the right side. . . . at night with numbness along the lateral aspect of her left arm and forearm. . . . and more numbness and tingling throughout her entire right arm." (Id.) Dr. Zietak performed a physical examination and also undertook nerve conduction studies on the claimant. (Ex. 4 at 128.) The results of the nerve conduction studies were consistent with carpal tunnel syndrome. In addition to carpal tunnel syndrome, Dr. Zietak diagnosed claimant as suffering "[c]hronic right shoulder girdle and neck pain most likely secondary to muscular strain" and recommended further physical therapy but with different modalities. (Id.)

         16. Ultimately, carpal tunnel syndrome turned out to be a red herring. (Demakas Dep. at 12, 41.) While the nerve conduction study was consistent with a diagnosis of carpal tunnel syndrome, claimant's clinical symptoms were not. (Demakas Dep. at 12-13.) For example, her complaints of numbness in her third, fourth and fifth fingers are not typical of carpal tunnel. (Id.)

         17. Claimant continued to experience symptoms and Dr. Demakas continued to see her periodically. (Ex. 4 at 106, 108, 117.) On June 29, 1992, he concluded that her symptoms were more consistent with lower brachial plexus irritation and thoracic outlet syndrome. The ...


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