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Ross v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

February 28, 1996

MICHAEL ROSS Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: December 13, 1995

          ORDER ON APPEAL

          Mike McCarter Judge

         Summary: Claimant appeals from DOL decision adopting recommendation of rehabilitation panel that he could return to a related occupation suitable to his education and marketable skills.

         Held: Where case was submitted to the hearing officer on exhibits, depositions and briefs, the WCC was not required to defer to the hearing officer's determination of facts and was in as good a position as the department to review the evidence. WCC concludes the hearing officer's decision was clearly erroneous in light of the reliable, probative, and substantial evidence. In particular, the hearing officer's reliance on the written opinions of one doctor was misplaced where a contrary and more persuasive opinion was given by a physician who treated claimant over several years, and who testified at deposition. Moreover, the hearing officer's decision relies upon claimant's ability to perform a dispatcher position, which the rehabilitation panel itself concluded he was not able to perform.

         Topics:

Appeals (To Workers' Compensation Court): Standard of Review. Section 39-71-1018, MCA (1987) provided for appeal from the department's final order in a rehabilitation matter to the WCC. While the WCC may not substitute its judgment for that of the agency as to the weight of the evidence (section 2-4-704(2), MCA), where the case was submitted to the hearing officer on exhibits, depositions and briefs, the WCC was not required to defer to the hearing officer's determination of facts and was in as good a position as the department to review the evidence.
Benefits: Rehabilitation Benefits: Rehabilitation Panel. WCC reversed DOL decision adopting recommendation of rehabilitation panel that claimant could return to a related occupation suitable to his education and marketable skills. Where the case was submitted to the hearing officer on exhibits, depositions and briefs, the WCC was not required to defer to the hearing officer's determination of facts and was in as good a position as the department to review the evidence. The DOL decision was clearly erroneous in light of the reliable, probative, and substantial evidence. In particular, the hearing officer's reliance on the written opinions of one doctor was misplaced where a contrary and more persuasive opinion was given by a physician who treated claimant over several years, and who testified at deposition. Moreover, the hearing officer's decision relies upon claimant's ability to perform a dispatcher position, which the rehabilitation panel itself concluded he was not able to perform.

         This is an appeal by Michael Ross, claimant, from Findings of Fact, Conclusions of Law, and Order issued on May 23, 1995, by the Department of Labor and Industry. In that decision the Department's hearing officer found that option (c) of section 39-71-1012, MCA (1987), is the first appropriate rehabilitation option for claimant. Claimant now appeals on the grounds that the decision was:

a. in excess of the statutory authority of the agency;
b. made upon unlawful procedure; and
c. clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

(Appellant's Brief at 7-8.)

         Factual Background

         Claimant is 51 years old. He completed the eighth grade and obtained a GED in 1969. He attended bartending school in 1977. He has also attended adult education classes as recently as 1991.

         Claimant has worked most of his life as a laborer, primarily as an ironworker. He has also been employed as a furniture deliverer, lounge manager and bartender.

         Over the years he has suffered back problems. Initially, he suffered a low-back injury in 1968. In 1972 he suffered a second low-back injury. (Ross Dep. at 4, 5.) In 1972 or 1973 claimant underwent laminectomies and diskectomies at the L4-5 and L5-S1 levels and a fusion of the L4 to the sacrum. (Ex. 3 at 1; Murphy Dep. at 3; Ross Dep. at 4.) Following the surgeries, claimant did not return to work until 1977. (Ross Dep. at 4.)

         On June 20, 1990, claimant suffered a third industrial injury to his low back. At that time he was working as an ironworker for Stratford Steel on a job at the Pegasus mine. (Ross Dep. at 2-3.) He was on a 20-foot extension ladder, which he was moving down a wall by "jumping" it. (Id.) He momentarily lost control of the ladder and twisted himself in the process. (Id.) He felt a pop in his back and has not worked since. (Id.)

         Following the 1990 injury claimant was treated by Dr. James P. Murphy, who is an orthopedic surgeon in Butte. Treatment included physical therapy, which was unsuccessful, and epidural block injections, which were also unsuccessful. An MRI was performed on July 3, 1990, but showed no disk herniation. (Murphy Dep. at 4.)

         In July 1991, Dr. Murphy filled out a Physical Activities Checklist which showed the claimant could occasionally sit, stand, walk, drive, lift 10 pounds, as well as push/pull, bend, squat, kneel, crawl, twist, grasp, and reach. (Murphy Dep. Ex. 10.) However, at his deposition on January 24, 1995, Dr. Murphy testified that the list was no longer accurate and that claimant is "more restricted today." (Murphy Dep. at 20.)

         Dr. Murphy referred claimant to Dr. Pius Baggenstos, neurosurgeon, for a consultation. (Id. at 4.) Dr. Baggenstos examined claimant sometime in 1990 and reported his impression as recurrent low-back sprain due to an industrial accident. (Id.)

         On March 14, 1991, Dr. John S. Diggs performed an IME at the request of the insurer. He reported:

1. This patient has reached MMI . . . . There are no further recommendations for evaluation or treatment.
2. This patient cannot be expected to return to the heavy labor of steel work but is capable of light work activity. I agree with Dr. Murphy's opinion dictated September 14, 1990, for light duty work which requires lifting to 15-20 lbs. except I would modify the recommendation that he could carry up to 20 lbs. and could, on an infrequent basis, bend, crawl, stoop or work overhead.

(Ex. 2.)

         On December 22, 1992, Dr. Murphy gave claimant an impairment rating of 18%. The rating was based on 10% for the prior diskectomies and 8% for the spinal fusion. Dr. Murphy did not release claimant to return to work to work at that time.

         At Dr. Murphy's recommendation and the State Fund's request, the claimant was referred to Dr. Alan Weinert, a physiatrist, for an independent medical examination and possible enrollment in the Functional Restoration Program (FRP) at St. Peter's Community Hospital in Helena, Montana. Dr. Weinert examined the claimant on April 28, 1993, and recommended he enroll in the FRP, which he did.

         Claimant underwent a Functional Capacities Evaluation (FCE) on May 18, 1993. The results of the FCE were considered valid and indicated that the claimant is employable in light work. The FCE report noted that the claimant demonstrated "Inappropriate Illness Behavior" and that his pain profile was high. (Ex. 6. at 55, 56, 68-69.) According to the report of the physical therapist who conducted the evaluation:

INAPPROPRIATE ILLNESS BEHAVIOR
Inappropriate Illness Behavior is an observable and measurable behavior which is out of proportion to the impairment and is measured by Non-Organic Signs, Inappropriate Symptoms, High Pain Drawing scores, and movement patterns which improve by distraction.
Mr. Ross exhibited indications of Inappropriate Illness Behavior throughout the FCE. He initially rated his pain at 10/10. This changed to 8/10 and his pain ratings were either 8/10 or 10/10 throughout the remainder of the FCE. His pain ratings were out of proportion to the movement patterns demonstrated during the FCE. Additionally, movement patterns improved by distraction and Mr. Ross scored high on the Inappropriate Symptoms Questionnaire. Therefore, Inappropriate Illness Behavior is reported for this FCE.
SYMPTOM EXAGGERATION
Symptom Exaggeration is a subjective determination by the evaluator of whether the patient's Pain Profile or Pain Rating is out of proportion to the observed movement patterns throughout the evaluation.
Mr. Ross's pain profile is HIGH. The pain profile is out of proportion to the patient's behavior and movement patterns observed. There is a significant disparity between the patient's estimation of his pain level and the evaluator's estimation of the patient's pain level. Additionally, Mr. Ross voluntarily continued with the FCE despite such high pain ratings which is characteristic of Symptom Exaggeration.

         (Ex. 6 at 77.) The physical therapist who made the report did not testify.

         Claimant completed the seven week FRP at St. Peter's Community Hospital. The program commenced in May 1993 and ended in June 1993. (Ex. 6.)

         The program included work hardening, which simulates general work tasks. The claimant was able to "improve overall in the areas of relaxation during work tasks, pain management, pacing body mechanics and posture, strength and endurance." (Id. at 33.) In the discharge summary, the program coordinator recommended that ...


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