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Kaiser v. Sears Roebuck and Co.

Court of Workers Compensation of Montana

June 28, 1996

MICHAEL KAISER Petitioner
v.
SEARS ROEBUCK AND COMPANY Respondent/Insurer/Employer.

          May 20, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: In 1981, claimant was working as an appliance repairman for Sears, a self-insured employer. While working on a furnace at a customer's home, he received an electrical shock that knocked him unconscious. Within 24 hours, he experienced swelling and pain in his arm and ankle and began having headaches and some difficulties with movement. In 1991, claimant and Sears entered into a full and final compromise settlement reserving medical benefits to claimant. In 1995, claimant began treating with Dr. James Burkholder, a family practitioner, for increased pain in his hips and low back, including difficulty walking. Dr. Burkholder prescribed physical therapy for claimant with Gordon Jones, who had treated claimant previously with good results. Sears contended this treatment and physical therapy was not related to the original injury and was not reasonable.

         Held: Where an IME panel found claimant's ongoing complaints related to the injury, even if exacerbated by deconditioning, and recommended three physical therapy sessions, the Court finds treatment by Dr. Burkholder and one month's physical therapy related to the original injury and reasonable. Additional physical therapy was found not reasonable medical treatment where prescribed without examination of claimant or discussion with the physical therapist.

         Topics:

Benefits: Medical Benefits: Liability. Where an IME panel found claimant's 1995 complaints of pain related to his 1981 electrocution injury, even though likely exacerbated by deconditioning, and recommended three physical therapy sessions, the Court finds treatment by claimant's family practitioner and one month's physical therapy related to the original injury and reasonable medical treatment. Additional physical therapy was found not reasonable where prescribed without examination of claimant or discussion with the physical therapist.
Benefits: Medical Benefits: Reasonableness of Services. Where an IME panel found claimant's 1995 complaints of pain related to his 1981 electrocution injury, even though likely exacerbated by deconditioning, and recommended three physical therapy sessions, the Court finds treatment by claimant's family practitioner and one month's physical therapy related to the original injury and reasonable medical treatment. Additional physical therapy was found not reasonable where prescribed without examination of claimant or discussion with the physical therapist.
Causation: Medical Condition. Where an IME panel found claimant's 1995 complaints of pain related to his 1981 electrocution injury, even though likely exacerbated by deconditioning, and recommended three physical therapy sessions, the Court finds treatment by claimant's family practitioner and one month's physical therapy related to the original injury and reasonable medical treatment. Additional physical therapy was found not reasonable where prescribed without examination of claimant or discussion with the physical therapist.

         This case came on for trial on May 20, 1996, in Helena, Montana. The claimant, Michael Kaiser (claimant), is the petitioner and was represented by Mr. Norman H. Grosfield. The respondent, Sears Roebuck and Company (Sears), which is self-insured, was represented by Ms. Sara R. Sexe.

         Claimant and Gordon B. Jones testified. In addition the deposition of Dr. Dana Headapohl and Exhibits 1 through 11 were submitted to the Court for its consideration. The matter was deemed submitted at the close of trial. Depositions were also taken of both claimant and Gordon Jones but were not submitted to the Court for its consideration.

         Issue: At issue is the liability of Sears for the medical bills of Dr. James Burkholder and physical therapist Gordon Jones. Sears has refused to pay the bills and argues that they are for medical treatments unrelated to claimant's industrial injury. It also argues that the medical treatment was not reasonable. In the event claimant prevails, he also seeks attorney fees and costs.

         * * * * * * * *

         Having considered the Final Pretrial Order, the testimony and demeanor of the witnesses, the 11 exhibits, the deposition of Dr. Headapohl, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. The claimant suffered an industrial injury on July 30, 1981, while working for Sears. He was working on a furnace at a customer's residence when he received an electrical shock and was knocked unconscious. Within 24 hours he experienced swelling and pain under his left arm and in his left ankle, and began having headaches and difficulty in walking and in lifting his left arm.

         2. Sears, which is self-insured, accepted liability for the injury and over the years has paid various medical and compensation benefits.

         3. Claimant and Sears executed a full and final compromise settlement in June of 1991. Under the terms of the settlement, medical benefits remained open.

         4. Claimant is currently receiving social security disability but does appliance repairs on a part-time basis, making between five and twenty service calls a month.

         5. Since his injury the claimant has been treated by a number of physicians. At one time he was examined at the Virginia Mason Clinic in Seattle because of complaints of vertigo. (Ex. 6 at 1.) In 1991 he underwent a medical panel examination by Dr. Randall Sechrest and others. (Exs. 6 at 1 and 7.) Claimant also received physical therapy at various times but has stated that he discontinued physical therapy in 1993 on account of a controversy with the insurance company over the therapy. (Id.)

         6. Claimant testified that over the years since his injury he has experienced basically the same symptoms as immediately following the injury, although his symptoms have waxed and waned.

         7. The Court is unable to follow claimant's medical care over the years or verify his claim that his symptoms have been the same over the years because, with the exception of five physical therapy notes from 1989 to 1992, the parties have not provided the Court with medical records for claimant's treatment prior to 1995. They have not furnished the 1991 medical panel report or the records of any physicians who examined or treated claimant prior to 1995, although those records were made available to and were reviewed by a medical panel examining claimant in November 1995. (See Exs. 6-8.)

         8. The physical therapy notes were for treatments by Gordon Jones, physical therapist. The notes consist of five typewritten progress notes dated November 1989, December 1989, April 1990, April 7, 1992, and April 9, 1992, and provide minimal information. (Ex. 10.)

a. The November 1989 note indicates that claimant was in a work hardening program and was receiving "physical therapy with myofascial release techniques to help relieve headaches, dizziness and flexibility" but provides no other information concerning claimant's specific complaints. (Id. at 1.)

         b. The note of December 1989 provides some additional insight, stating:

Mike is being treated in physical therapy for multiple trigger point involvement, severe muscle tightness, and restricted ROM.
Cervical ROM is missing. Low back ROM increased, but his upper extremity is still tight and restricted. Occasional sharp pain occurs in the occiput area.

(Id. at 2.) The treatment mentioned was an "OA release, manual traction" and "myofascial release techniques." (Id.) c.Mr. Jones' note for April 1990 (no precise date is provided) states that physical therapy was being discontinued by Dr. Etter. It went on to note that claimant "still cannot put his head back in extension without causing pain and dizziness." (Id. at 4.)

         d. The April 7, 1992 note is briefer than the preceding ones, stating only that claimant was in that day and that:

OBJECTIVE: Mike is doing better; range of motion is increasing. Continue treating with rehab program exercises and icing. Continue stretching & strengthening exercises with his home program.
Continue icing before and after exercises.
PLAN: Continue home exercise program. (Id. ...

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