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Brian v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 22, 1996

DEBORAH (EVANS) BRIAN Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for DOC AND EDDY'S Employer.

          Submitted: November 18, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: Lounge and restaurant worker had history of back pain. On June 20, 1995, an orthopedic surgeon recommended surgery, based on a diagnosis of a herniated disc and degenerative disc disease. On June 24, 1995, only four days later, claimant slipped and fell at work. The insurer accepted liability for the fall and began paying temporary total disability benefits. Claimant needs surgery, which is not disputed. The insurer refuses to pay for surgery or for an impairment award following surgery. Three physicians agree that without surgery claimant is totally disabled and not likely to improve in the foreseeable future. Prior to the fall, she was able to work, although with pain. The insurer's refusal is based on the fact that there appears to be no difference in an MRI taken before the fall and after. An orthopedic surgeon and a neurosurgeon, however, agreed that claimant permanently aggravated her low-back condition during the fall, even though no significant change appears on the post-injury MRI.

         Held: The back surgery is compensable. The neurosurgeon persuasively testified that even a small change in the extent of nerve root constriction, not apparent on an MRI, could significantly increase pain. Physician who opined the fall did not cause a permanent aggravation conceded he discounted claimant's statements that her pain and disability permanently increased following the accident. While a physician can appropriately consider a claimant's veracity when making diagnoses and treatment recommendations, the Court must make its own independent determination of claimant's credibility. In this case, the Court finds claimant credible. Her credibility is bolstered by evidence that she was a hard worker prior to the injury, even with her back condition, and her testimony, supported by two physicians, that she cannot now work. Claimant is entitled to surgery as a reasonable primary medical service. She will be entitled to an impairment award following surgery if a physician issues an impairment based on her low-back condition. Penalty and attorneys fees are also awarded where there was overwhelming evidence that the June 24 accident caused increased, disabling pain to claimant.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-611, MCA (1993). Attorneys fees awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA (1993). Penalty awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
Attorney Fees: Cases Awarded. Attorneys fees awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
Attorneys Fees: Unreasonable Denial or Delay of Payment. Attorneys fees awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
Benefits: Medical Benefits: Surgery. Back surgery was compensable, and penalty and attorneys fees ordered against insurer, where overwhelming evidence indicated claimant's slip and fall caused increased, totally disabling back pain. Insurer's reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured and she had previously been working.
Medical Conditions (By Specific Condition): Herniated Disk. Back surgery was compensable, and penalty and attorneys fees ordered against insurer, where overwhelming evidence indicated claimant's slip and fall caused increased, totally disabling back pain. Insurer's reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured and she had previously been working.
Penalties: Insurers. Penalty awarded where insurer unreasonably refused to pay for back surgery although overwhelming evidence indicated claimant's accident caused increased, totally disabling back pain. Reliance on fact that pre- and post-accident MRIs were the same, and fact that surgery had been recommended prior to the accident, was not reasonable where claimant and physicians made clear her pain increased and total disability ensured, where she had previously been working.
Witnesses: Credibility. While a physician can appropriately consider a claimant's veracity when making diagnoses and treatment recommendations, the Court must make its own independent determination of claimant's credibility.

         This case came for trial on November 6-7, 1996, in Billings, Montana. Petitioner, Deborah (Evans) Brian (claimant), was present with her attorney, Mr. James G. Edmiston. Respondent, State Compensation Insurance Fund (State Fund), was represented by Ms. Ann E. Clark.

         Exhibits: Exhibits 1 through 22 were stipulated into evidence.

         Witnesses and Depositions: Claimant and Tiffany Jaeger were sworn and testified. The testimony of Dr. Fred McMurray, Dr. William Shaw and Dr. Peter Teal was taken at their respective offices.

         Issues Presented: (1) Whether the insurer is liable for claimant's back surgery; (2) whether it is also liable for any impairment rating for claimant's low-back condition; and (3) whether claimant is entitled to attorney fees, costs and a penalty.

         No transcript of the trial has been prepared.

         Having considered the Pre-Trial Order, the testimony at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:

         Findings ...


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