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Claimant v. National Union Fire Insurance Co. of Pittsburgh

Court of Workers Compensation of Montana

June 25, 1996

MICHELLE CHAPMAN Claimant/Appellant
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH Insurer/Cross-Appellant.

          Submitted: March 22, 1996

          ORDER ON APPEAL

          Mike McCarter Judge.

         Summary: A 27 year old laborer injured her right shoulder, neck, right hand, back and right food when falling from cooling tower. After DOL hearing officer determined that claimant was capable of working as a self-service gas station attendant, and that the first appropriate return-to-work option under section 39-71-1012, MCA (1987), was return to a related occupation, claimant appealed, alleging the decision was not supported by substantial evidence. Insurer cross-appealed, regarding hearing officer's alleged failure to take notice of a deposition. Claimant contended, among other things, that hearing officer failed to give weight to letter from treating physician read by claimant at hearing.

         Held: Substantial evidence supported hearing officer's findings and conclusions. Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer did not err in finding claimant could return to work under option (c). Given this conclusion, it is unnecessary to reach insurer's appeal.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-1012, MCA (1987). Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.
Treating Physician: Weight of Opinions. Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.
Proof: Conflicting Evidence: Medical. Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.
Vocational __ Return to Work Matters: Evidence. Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.

         This is an appeal and a cross-appeal from a decision of the Department of Labor and Industry that option (c) of section 39-71-1012, MCA (1987) __ return to a related occupation suited to claimant's education and marketable skills -- is the first appropriate rehabilitation option for Michelle Chapman, the claimant in this matter. Chapman appeals on the ground that the findings of fact issued by the Department's hearing officer are not supported by substantial evidence. (Notice of Appeal, 1/8/96.) The insurer/respondent, National Union Fire Insurance Company of Pittsburgh (National), cross-appeals. It alleges that the "findings of fact identified[1] do not comport with the evidence in the record. . . that the hearing officer was required and failed to take judicial notice of Ms. Chapman's prior deposition testimony as required by Mont. R. Evid. 201."(Amended Notice of Appeal, 1/24/96 at 2.)

         Factual Background

         Claimant is 27 years old. She is a high school graduate and has attended one year of college. She has worked as counter person, salad maker and cashier, a flagger, a laborer, and a hostess/cashier at JB's. Her last job was as a laborer with Research Cottrell. She was injured on that job on May 16, 1989, and has not worked since.

         This case arises out of claimant's May 16, 1989 injury. At the time of the injury claimant's employer was performing work at the Colstrip power plant. Claimant was working on a cooling tower at the plant when she fell. Initially, she fell approximately eight feet, grabbing a 2x4 cross member to stop her fall. She dangled momentarily, then fell another eight feet to a concrete floor, landing on her right shoulder and side. Claimant has provided conflicting reports as to which hand she used to catch onto the cross member. However, the fact that she injured her right shoulder, neck, right hand, back and right foot is not disputed.

         At the time of claimant's injury Research Cottrell was insured by National, which accepted liability for the injury.

         Since her injury claimant has been seen by numerous doctors and physical therapists. Her primary treating physician is Dr. Richard A. Nelson. She was also seen by Dr. William Anderson at the Colstrip Medical Clinic, three different emergency room doctors between the dates of May 18, 1989 and May 22, 1989, Dr. William Shaw in an IME requested by National, Dr. Thomas Johnson, Dr. John Cook, Dr. Donald See, Dr. Robert K. Snider, Dr. Joseph Rich (a psychiatrist), and Dr. Thomas L. Schumann in another IME requested by National. Claimant has also been treated by physical therapists Mary Mistal and Stacy Padden and by occupational therapist Susan Zimmerman.

         Dr. Robert K. Snider, an orthopedic surgeon, treated claimant during 1990. On November 8, 1990, he assigned claimant a 15% whole person impairment rating.

         Thereafter, claimant underwent a functional capacity evaluation (FCE) at St. Vincent Health and Fitness Center beginning on December 11, 1990. Stacy Padden, the physical therapist who supervised the evaluation summarized the results and her recommendations:

Summary
The Stress Index, which measures the Dynamometer testing of kyphosis versus lordosis lift was within normal range. The Lift-pull Index measuring static strength in dynamic movements relationship was also in normal range. She did display a good correlation between pain rating and observed behavior. Her observed body mechanics and material handling ability were excellent. She also displayed good gross coordination. The endurance projections do appear reliable. The results of this test appear valid. This client's physical demand characteristics of work would be classified as light. Results would indicate back pain and shoulder weakness. She appears to have good cardiovascular fitness and pelvic control.
Recommendations:
1) Back education program.
2) Further strengthening exercise.
3) Employment in a light duty position at this time.
4) Instruction in conditioning program for low back and lower extremities with progression to an independent program.

(Ex. 15 at 11; underlining in original.) The FCE Form indicated the claimant was able to lift 10 pounds frequently and up to 24 pounds occasionally. She could carry up to 10 pounds frequently and up to a maximum of 25 pounds occasionally. On the basis of an eight-hour work day, with two fifteen minute breaks and a half-hour for lunch, the claimant could be expected to tolerate sitting for two to three hours-with rest, standing for five to six hours-with rest, and walking for five to six hours-with rest. (Id.)

         In January of 1991, Crawford & Company Healthcare Management was retained by National to perform a rehabilitation assessment. Patricia Murray, a certified rehabilitation counselor, was assigned by Crawford to do the actual assessment. She identified three jobs that the claimant might be able to perform given her education, transferrable skills and physical restrictions. Job analyses for those jobs were submitted for review to Dr. Thomas Johnson, an orthopedic surgeon and associate or partner of Dr. Snider, who had treated the claimant beginning on October 25, 1989, through at least March 14, 1990. The job analyses were also provided to physical therapist Stacy Padden. On January 16, 1991, both Dr. Johnson and Ms. Padden approved the positions of host/hostess and cashier II (courtesy booth). They disapproved fast food worker.

         On November 4, 1992, Dr. Nelson reviewed and without comment signed the Estimated Functional Capacity (EFC) Form. He also reviewed and approved the job analyses for the positions of hostess and courtesy booth cashier. In the comment portion of the job analyses forms he wrote "as per restrictions previously cited." Dr. Nelson's records prior to November 4, 1992, do not reveal any restrictions other than those set forth on the EFC Form which he had signed. As did Dr. Johnson and Ms. Padden, he disapproved fast food worker.

         Over a year and a half later, in January of 1994, Dr. Nelson was again asked to review job analyses prepared by Crawford. Once more, he approved Ms. Chapman's return to work as a restaurant hostess and as a courtesy booth cashier. Additionally, he approved the job description for attendant in a self-service gas station. Finally, for a second time he reviewed and signed the EFC Form.

         In November 1994, the insurer requested a rehabilitation panel be convened to determine the first appropriate return-to-work option for the claimant. [2] The panel met on December 20, 1994. Claimant and her counsel telephonically participated in the meeting.

         In anticipation of the panel meeting, the claimant's attorney sent claimant to be examined by Dr. Richard A. Nelson on December 14, 1994. (Appellant's Reply Brief at 3.) On December 16, 1994, Dr. Nelson wrote a letter addressed "To Whom It May Concern." Claimant's attorney mailed the letter to the Rehabilitation Panel for its consideration. The letter did not reach the Rehabilitation Panel members prior to its meeting on December 20, 1994. However, National states, and the claimant does not dispute, that claimant's counsel read Dr. Nelson's letter to the panel members during the meeting.

         In his December 16th letter Dr. Nelson noted:

The patient's attorney has given me a copy of 39-71-1012(2) of the Montana Code, informed me of the Rehab Panel hearing scheduled for December 20, 1994, and asked that I provide any remarks I may care to make.

(Ex. 13 at 5.) Dr. Nelson went on to repudiate, without any explanation whatsoever, his prior approvals of two jobs and his concurrence in the prior FCE:

The patient has many residuals from her injury. For example, five years after her injury, she still walks with a limp, drags the right foot, squirms when sitting in a chair by having to frequently arch her back, still has to use her left hand to lift her right hand, still requires a great deal of time each ...

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