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Loss v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

March 15, 1996

CLINTON LOSS Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for NABISCO BRANDS, INCORPORATED Employer.

          Submitted: February 29, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: Insurer accepted claim for carpal tunnel syndrome and paid medical expenses and some TTD. Claimant seeks additional TTD and a $10, 000 award under section 39-72-405, MCA

         Held: Section 39-72-701, MCA (1991) does not authorize the Court to award TTD benefits after claimant has reached maximum medical healing. The Court declines to extend the requirements of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), adopted by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), to mandate continuing benefits on the argument a doctor's release to return to work without restrictions was allegedly erroneous. The Coles requirements are procedural, not substantive, except for the maximum medical healing determination. Where the MMI determination is not contested, the Court will not retrospectively reexamine the correctness of the physician's opinions upon which the termination of TTD was based. However, claimant is entitled to the maximum award of $10, 000 under section 39-72-405, MCA (1991) where his wage loss amounts to from $2.73 to $3.20 an hour. Working a 40 hour week, he will lose $10, 000 within 79 to 92 weeks, or less than 2 years.

         Topics:

Benefits: Temporary Total Benefits. Section 39-72-701, MCA (1991) of the OD Act does not authorize the Court to award TTD benefits after claimant has reached maximum medical healing.
Cases Discussed: Workers' Compensation Court Cases: Coles v. Seven Eleven Stores. The Court declines to extend the requirements of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), adopted by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), to mandate continuing benefits on the argument a doctor's release to return to work without restrictions was allegedly erroneous. The Coles requirements are procedural, not substantive, except for the maximum medical healing determination. Where the MMI determination is not contested, the Court will not retrospectively reexamine the correctness of the physician's opinions upon which the termination of TTD was based.
Benefits: Termination of Benefits: Coles. The Court declines to extend the requirements of Coles v. Seven Eleven Stores, WCC No. 2000, adopted by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), to mandate continuing benefits on the argument a doctor's release to return to work without restrictions was allegedly erroneous. The Coles requirements are procedural, not substantive, except for the maximum medical healing determination. Where the MMI determination is not contested, the Court will not retrospectively reexamine the correctness of the physician's opinions upon which the termination of TTD was based.
Occupational Disease: Indemnity (39-72-405) Awards. Claimant is entitled to the maximum award of $10, 000 under section 39-72-405, MCA (1991) where his wage loss amounts to from $2.73 to $3.20 an hour. Working a 40 hour week, he will lose $10, 000 within 79 to 92 weeks, or less than 2 years.
Occupational Disease: Medical Panels. Insurer did not raise until filing proposed findings and conclusions of law the argument that no award could be made under section 39-72-405, MCA (1991), because no medical panel had determined it was inadvisable for claimant to continue in the same employment. Where the rules of the WCC require both parties to set out their contentions in pleadings and the pretrial order, the Court would not allow the insurer to raise this argument at trial. While the requirements concerning the medical panel has procedural and evidentiary significance, it is not jurisdictional and may be waived.
Pain. Pain is a factor which must be considered in determining disability. Metzger v. Chemetron Corporation, 212 Mont. 351, 354, 687 P.2d 1033, 1035 (1984). It is a subjective phenomena and is not objectively measurable. It is not entirely within the realm of expert testimony.

         The trial in this matter came on February 29, 1996, in Helena, Montana. The petitioner, Clinton Loss (claimant), was present and represented by Mr. Norman H. Grosfield. The respondent, Lumbermens Mutual Casualty Company (Lumbermens), was represented by Mr. Thomas A. Marra.

         Evidence: Claimant, his wife and Brenda Williams, C.R.C. testified at trial. In addition, the depositions of claimant, Dr. William S. Shaw and Brenda Williams, C.R.C. were submitted for the Court's consideration. Exhibits 1 through 9 were admitted without objection.

         Issues presented: This is an occupational disease case involving carpal tunnel syndrome. The insurer has admitted liability and paid medical expenses and temporary total disability benefits for a period of time. Through his petition, the claimant seeks additional temporary total disability benefits and a $10, 000 award pursuant to section 39-72-405, MCA.

         At the commencement of trial claimant also requested the Court to award rehabilitation benefits. That request was not set forth in either the petition for hearing or Pretrial Order. It is therefore outside the scope of issues presented for trial, and the Court so ruled.

         Claimant also seeks a penalty. That issue was bifurcated at the time of the pretrial conference in light of a discovery dispute over certain documents in the insurer's claim file.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the parties' proposed findings of fact and conclusions of law, and the arguments presented at the trial, the Court makes the following:

         FINDINGS OF FACT

         1.Both claimant and his wife were credible witnesses. In the findings that follow, the Court adopts their testimony as true.

         2.Claimant is 39 years old, married, and lives near Helena, Montana. He is a high school graduate and has completed approximately two years of college courses in business administration at Montana State University.

         3.His work history includes building maintenance, appliance sales and delivery, crew work for the forest service, and ranch work.

         4.From March 1980 until August 9, 1994, claimant worked for Nabisco, Incorporated as a delivery driver. He delivered Nabisco products to retailers throughout Montana and parts of Idaho and Wyoming. He often worked 10 to 15 hours per day and drove for extended periods of time to reach distant locations.

         5.Many stores required that claimant deliver the products at specific times, thus creating pressure for him to meet retailers' schedules. Delivery times of all Nabisco drivers were also compared. Each driver was expected to maintain a speedy, efficient delivery schedule.

         6.The claimant's duties were year-round. Winter driving conditions added to delivery pressures.

         7.At times claimant was also required to load trucks at Nabisco's warehouse. He took boxes off a conveyor belt and stacked them in the trucks. He was required to load the trucks as quickly as possible. When loading, he carried several small boxes at a time, squeezing them together between his hands. He loaded each truck from floor to ceiling, front to back.

         8.Nabisco products were packaged in boxes varying in weight from 5 to 16 pounds. Claimant delivered boxes a stack at a time, using a hand-truck. Loaded, the hand-truck weighed as much as 250 pounds.

         9.Delivery accommodations at retail stores varied. Some had docks with ramps which could be extended to the truck. If no dock ramp was available, claimant used a ramp from his truck. The ramps weighed over 100 pounds.

         10.Claimant had little if any time for rest breaks. Claimant's job, for lack of a better description, was a "go-go" job.

         11.In 1991 claimant experienced pain and numbness in both arms and hands. He was referred to Dr. Allen Weinert, a Helena physiatrist, for evaluation. (Ex. 2 at 1.) Dr. Weinert's history, taken November 13, 1991, reflects the following symptomatology:

Over the last several months he [claimant] has noted bilateral upper extremity pain that initially started on the left side but shortly thereafter began on the right side as well. The pain is diffuse in nature and variable in location affecting shoulder, forearms, hands. There is associated numbness in the hands bilaterally and no specific finger distribution. The pain and numbness are aggravated at night and also when he is using his upper extremities such as when holding the steering wheel while driving. He has noted some tendency to drop things because of decreased sensation in the hands. There are no definite alleviating maneuvers that he can do other than he says he gets some relief by elevating his arms at his sides. . . .

(Ex. 2 at 1.) Dr. Weinert performed a nerve conduction study on November 13, 1991. The study was positive in that it revealed a "prolonged, left median motor distal latency with borderline reduced left median sensory response amplitude." (Id. at 2.) Otherwise, it was within normal limits. (Id.) Dr. Weinert's impression was:

[a]lthough EMG findings demonstrate a unilateral median neuropathy at the wrist, my suspicion is that he is suffering bilateral carpal tunnel syndrome. There is no evidence on physical examination of a central process to account for his current symptoms.

(Id. at 3, emphasis added.) Dr Weinert pursued a conservative course of treatment requiring claimant to wear a splint.

         12.Following Dr. Weinert's examination, on November 20, 1991, claimant filed a claim for occupational disease benefits.

         13.Dr. Weinert did a follow-up exam on December 16, 1991. At that time the claimant reported he had been using the splints which the doctor had prescribed and that his symptoms had improved. (Ex. 2 at 5.) However, he reported increasing pain in his right shoulder. (Id.) At the time of the examination, Dr. Weinert attributed the right shoulder pain to "right shoulder rotator cuff tendinitis secondary to extensive overhead lifting." (Id.) He made the following recommendations:

1. Regarding the right shoulder pain, I think this is purely a manifestation of his work related overhead lifting. I discussed with him the possibility of limiting this, but at this point, he does not feel he could carry on his warehouse activities without lifting overhead. . . .
2. Regarding his carpal tunnel syndrome, the splints do seem to help although he has already broken one over the counter [sic] splint and is currently wearing out a second one. I recommend that he go to using the custom splint for daytime use as well as this might prove more durable. I will plan to follow-up with him in six weeks to assess progress in the above stated plan. If the numbness and tingling in his upper extremities [sic] continues to persist or get worse, his options are:
1.To look for a less physically demanding job activity although this may not guarantee improvement in his carpal tunnel syndromes.
2.To repeat the neurodiagnostic studies to see if there has been a worsening and if so, consider possible surgical referral.

(Ex. 2 at 5-6.)

         14.Claimant's carpal tunnel symptoms waxed and waned over the next four months.

         15.On February 12, 1992, claimant returned to Dr. Weinert. At that time claimant complained of "some sensation of thenar weakness and some mild tingling in digits 1 through 3." (Thenar weakness is weakness in the mound on the palm at the base of the thumb.) He also complained of "increased symptoms in the right hand of numbness and tingling," especially at night, and "some pain and tenderness with handgrip activities." (Id. at 10.) Dr. Weinert performed additional nerve conduction studies, which he interpreted as showing "left median neuropathy of the wrist (carpal tunnel syndrome) as well as electrophysically less severe right median neuropathy at the wrist." (Id. at 11.) In other words, the results were consistent with carpal tunnel on both the left and right, more severe on the left.

         16.At the time of the February 12, 1992 examination, Dr. Weinert advised claimant that surgical intervention depended more on his symptomatology than on the EMG results. (Id. at 11.) He recommended continued use of the splints and advised claimant to contact him if he wished to pursue a surgical consultation. (Id.)

         17.Claimant returned to Dr. Weinert on May 12, 1992, complaining of an increase in symptomatology:

[H]e states that symptoms have been worse over the last several weeks. He continues to complain of a numb feeling in digits 1-3, more marked in the left than the right. In addition he complains of wrist pain and pain over wrist and digit extensors on the left. He also recently had pain in the olecranon region at the insertion of the triceps. He has gone back to using the left wrist splint full time with only minimal relief. He's not taking any anti-inflammatory medications as his stomach did not tolerate these well. He continues to work without restriction.

(Id. at 16.) Claimant agreed to a surgical consultation with Dr. Kenneth Carpenter, a Helena orthopedic surgeon.

         18.Claimant did not see Dr. Carpenter until January 15, 1993. (Ex. 1 at 1.) Dr. Carpenter confirmed Dr. Weinert's diagnosis of bilateral carpal tunnel and recommended surgery. At the time of the examination, claimant and his wife were building a new home and doing some of the construction work. (Ex. 2 at 20; Loss Dep. at 30; trial testimony.) The construction and their move into the new home caused him to delay his surgery. (Id.)

         19.Claimant underwent bilateral carpal tunnel releases on June 29, 1993. (Ex. 1 at 1, 3.) The surgery confirmed the carpal tunnel syndrome diagnosis. In his operative note, Dr. Carpenter observed that the left "median nerve was narrowed approximately 50% under the mid portion of the transverse carpal ligament." (Id. at 3.) In his note regarding the right wrist, he said, "The same procedure with the same findings was performed on the opposite side." (Id.)

         20.Claimant initially experienced a positive outcome. He was off work for approximately four months. Dr. Carpenter released him for work without restriction on October 25, 1993. (Id. at 7.)

         21.However, on December 17, 1993, he reported to Dr. Carpenter that he had "re-developed a numbness and tingling of the index [finger] and thumb on both sides." (Id.) Claimant testified at trial that while his symptoms initially improved following his surgery, they thereafter returned to the same level as before the operation.

         22.Claimant continued to complain of symptoms in his arms, wrists, and hands. Dr. Carpenter examined him on February 7, April 20, and June 29, 1994, noting little change in his condition. (Id. at 9.)

         23.Dr. Carpenter was unable to identify the cause of claimant's continuing symptoms through objective testing. Dr. Weinert performed another nerve conduction study on July 26, 1994, but the test results were normal. (Ex. 2 at 21-22.)

         24.Dr. Carpenter prescribed physical therapy on August 15, 1994. (Ex. 1 at 10.) Claimant was evaluated by a physical therapist, who recommended stretching exercises, splints at night, pacing of activities, and biofeedback. (Loss Dep. Ex. at 89.)

         25.Kim Garrison, RN, MN, provided biofeedback therapy from August 31, 1994 through October 4, 1994. She instructed claimant in relaxation techniques, pacing his activities, and self management. (Loss Dep. Ex. at 88-89.)

         26.Claimant stopped working for Nabisco on August 9, 1994. By that time he was having difficulty holding on to the hand-truck, driving, and keeping up with the required work-pace. He has not worked since that time and has not seriously sought other employment. (Loss Dep. at 36.)

         27.On August 24, 1994, Dr. Carpenter prescribed a Medrol Dose Pac to help control claimant's pain. Claimant experienced some relief for two days. (Ex. 1 at 10.)

         28.Dr. Carpenter continued to treat claimant through the end of 1994 but with little effect.

         29.In a letter dated November 17, 1994, Dr. Carpenter advised Steven Maasch, claims adjuster for Intermountain Claims, that the claimant could return to light-duty work not involving a lot of lifting or repetitive motion. (Id. 1 at 21.)

         30.At the request of the insurer, on November 15, 1994, claimant was evaluated by Dr. Dale Peterson of the Billings Clinic. Dr. Peterson recorded that claimant had pain across the dorsum of both wrists. It is a sharp pain that comes on more when he is using his hands such as holding a spray can, driving and the like. He maybe gets some mild tingling in all the fingers at times but this is a lesser problem. There is no symptom shooting up the forearms. . . .

(Ex. 6 at 1.) Peterson found no sign of nerve entrapment, nerve root irritation, or other neurologic disorder on examination and recommended no further diagnostic studies or treatment. While he could find no neurologic reason to restrict claimant's activities, he noted that he would defer to Dr. Carpenter in determining what restrictions were appropriate due to claimant's mechanical pain in the wrists. (Id. at 2.) On the other hand, he also opined, "There would be no neurologic contraindication to his activities." (Id.)

         31.At the further request of the insurer, claimant submitted to additional independent medical examinations by Dr. William Shaw, a board certified occupational medicine specialist, and Dr. Curtis Settergren, an orthopedic surgeon. Both physicians ...


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