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Pasha v. National Union Fire of Pittsburgh

Court of Workers Compensation of Montana

February 26, 1997

NANCY LEE PASHA Petitioner
v.
NATIONAL UNION FIRE OF PITTSBURGH Respondent/Insurer for AMERICAN RED CROSS Employer.

          Submitted: September 6, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge.

         Summary: 54 year-old registered nurse injured in automobile accident sought evaluation at the Mayo Clinic in Minnesota and ruling that the insurer was liable for her leg complaints as well as her neck, arm, and headache pain.

         Held: Further evaluation is medically reasonable and necessary where three different physicians recommended the evaluation, several additional tests have been recommended by various physicians, physicians treating claimant have expressed uncertainty as to the nature of her condition, and treatment to date has been largely ineffective. Also relevant is the Court's impression that claimant will never return to work unless effective treatment is found and that evaluation at the Mayo Clinic, even if it provides no better diagnosis and treatment, will provide closure to the medical investigation. If the only reason for the referral to the Mayo Clinic were claimant's desire for the evaluation, the Court would not order the evaluation. The insurer is not responsible for treatment relating to claimant's legs and feet where medical records do not support her assertion that pain in those areas emerged at the time of the accident and remained constant. Rather, the records demonstrate claimant's symptoms in those areas have varied and have not been explained by any physician.

         Topics:

Benefits: Medical Benefits: Liability. Insurer is not responsible for treatment relating to claimant's legs and feet where medical records do not support her assertion that pain in those areas emerged at the time of the compensable automobile accident and remained constant. Rather, the records demonstrate claimant's symptoms in those areas have varied and have not been explained by any physician.
Benefits: Medical Benefits: Out-of-state Treatment. Out-of-state evaluation for claimant's chronic neck and arm pain, and headaches, is medically reasonable and necessary where three different physicians recommended the evaluation, several additional tests have been recommended by various physicians, physicians treating claimant have expressed uncertainty as to the nature of her condition, and treatment to date has been largely ineffective. Also relevant is the Court's impression that claimant will never return to work unless effective treatment is found and that evaluation at the Mayo Clinic, even if it provides no better diagnosis and treatment, will provide closure to the medical investigation. If the only reason for the referral to the Mayo Clinic were claimant's desire for the evaluation, the Court would not order the evaluation.

         The trial in this matter was held in Billings, Montana, on August 20, 1996. Petitioner, Nancy Lee Pasha (claimant), was present and represented by Mr. Marvin L. Howe. Respondent, National Union Fire of Pittsburgh (National Union), was represented by Mr. Peter J. Stokstad.

         Exhibits: Exhibits 1 through 3 were admitted at trial by stipulation.

         Witnesses and Depositions: Claimant was sworn and testified. In addition the parties submitted depositions of Dr. Gary D. Cooney and Dr. Dale M. Peterson for the Court's consideration.

         Issues Presented: The following issues are presented:

(1) Is National Union liable for an evaluation of claimant at the Mayo Clinic in Rochester, Minnesota?
(2) Is National Union liable for claimant's leg complaints?

(3) Is claimant is entitled to attorney fees, costs, and a penalty?

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

         FINDINGS OF FACT

         1. Claimant is 54 years old and resides in Hathaway, Montana. She is a registered nurse and received part of her nurses training at the Mayo Clinic in Rochester, Minnesota.

         2. In January 1992, and for the 19 previous years, the claimant was employed by the American Red Cross (Red Cross).

         3. On January 9, 1992, claimant was traveling in a Red Cross van in Miles City, Montana, when the van made a sudden stop to avoid a collision with another vehicle. Claimant was wearing a lap belt but not a shoulder belt. She was thrown forward in the vehicle but remained belted in her seat.

         4. Immediately following the accident claimant experienced pain in her right cervical area and right arm.

         5. At the time of the accident, Red Cross was insured by National Union. National Union accepted liability and has paid medical and disability benefits to claimant.

         6. Dr. Gary D. Cooney, claimant's treating physician, found her to be at maximum medical improvement in February 1996. (Ex. 1 at A-60.) However, National Union acknowledges that claimant is presently permanently totally disabled as a result of her industrial injury.

         Claimant's Request to Attend the Mayo Clinic

         7. Since the accident the claimant has experienced severe headaches and pain in her neck and both arms. She has also complained of pain in both legs and feet. She has seen numerous doctors concerning her complaints.

         8. Dr. Tim A. Six, a chiropractor, examined claimant on January 10, 1992. (Id. at A-5.) He referred claimant to Dr. Gary D. Cooney in Missoula. (Id. at A-9.) Dr. Cooney is a neurologist.

         9. Dr. Cooney initially examined claimant on January 13, 1992. (Id. at A-11.) His impression at that time was:

1. Cervical strain/sprain secondary to a motor vehicle accident on 1-9-92.
2. Right upper extremity paresthesias with sensory deficits in the C6 dermatome. A disc herniation at the C5-6 level merits consideration. She has no evidence of motor root weakness or reflex abnormalities however.

(Id. at A-12.) An x-ray taken at that time disclosed "[m]inimal disc disease at C5-6." Otherwise, the x-ray was normal. (Id. at A-13.) Dr. Cooney prescribed Valium and outpatient cervical traction four times a day. (Id. at A-12.)

         10. Claimant continued to experience neck and arm pain, so Dr. Cooney admitted her to St. Patrick Hospital in Missoula on January 20, 1992, for treatment with cervical traction and injectable Toradol.[1] (Cooney Dep. at 9; Ex. 1 at A-19.) At that time, claimant's "predominant complaints were of pain in her neck and shoulder girdle and right upper extremity." (Cooney Dep. at 9.) A cervical MRI on January 21, 1992, disclosed "[m]inimal narrowing of the C5-6 disc with no other specific abnormality." (Ex. 1 at A-78.) Dr. Cooney discharged claimant on January 26, 1992. (Id. at A-14 to 15.)

         11. During her January 1992 hospitalization claimant "developed some symptoms of pain in knees and ankles." (Id. at A-15.) The significance of those symptoms will be considered later in this decision.

         12. Over the next year the claimant continued to experience chronic headaches, neck pain, and bilateral arm pain and numbness. (Id. at A-38.) Between January 1992 and February 1993, claimant was treated with various drugs. She also underwent decompressive right ulnar nerve surgery on May 19, 1992. (Id. at A-28, A-70.) The surgery alleviated some of her symptoms but overall her complaints continued. (Id. at A-28 to 38.)

         13. Between January 1992 and February 1993, Dr. Cooney arrived at five primary impressions of claimant's medical condition. Four are reflected in his April 27, 1992 office note, as follows:

IMPRESSION: 1. Cervical strain/sprain secondary to a motor vehicle accident on 1-9-92.
2. Right upper extremity pain and tenderness, secondary to RUE trauma.
3. Right lateral epicondylitis secondary to #2.
4. Right tardy ulnar palsy, secondary to #2.

(Id. at A-27.) In his November 2, 1992 office note, he added the fifth:

5. Probable migraine headaches, post traumatic secondary to #1. (Id. at A-30.)

         14. Dr. Lawrence J. Toder, an orthopedic surgeon, recommended and performed the ulnar surgery on claimant. (Id. at A-68 to 69.) He followed her recovery from the surgery. His office notes indicate that claimant had continued complaints in her hands, arms and neck. (Id. at A-71 to 74.) His office notes demonstrate his uncertainty concerning the cause of her complaints. On May 28, 1992, he wrote, "I think the pt [patient] may be exhibiting early reflex dystrophy." (Id. at A-71.) On October 8, 1992, he recorded that she had multiple complaints in her right arm and neck and was "essentially dysfunctional." (Id. at A-73.) At that time he noted that she was returning to see Dr. Cooney and "suggest[ed] that she continue to pursue problems relating to her brachial plexus and neck which I think is a source of her problems." (Id.)

         15. After examining claimant on November 11, 1992, Dr. Toder noted that she was "essentially no better." (Id.) He repeated his belief that claimant had some problem relating to her brachial plexus and neck. (Id.) His office note for this visit is the first mention of the Mayo Clinic.

The patient has either a brachial plexus or cervical spine problem. At the present time I will try to communicate with Dr. Gary Cooney to see if he has any suggestions for therapy. She has the opportunity to go back to the Mayo Clinic in January and I suggest that if she if [sic] not feeling any better, which I suspect will be the case, that we arrange for her to have a neurologic and neurosurgical consult back there.

(Id. at A-73.)

         16. On December 23, 1992, after discussing the case with Dr. Cooney, Dr. Toder indicated that he and Dr. Cooney had been unable to make any definitive diagnosis of claimant's condition or provide an effective treatment plan. He urged that she be examined by a "super expert" at the Mayo Clinic.

I had a discussion with Mary at Crawford Rehab about Mrs. Pasha's case. I feel that Mrs. Pasha at this present time continues to have symptomatology and does not have a diagnosis nor treatment plan provided by physicians she has seen including myself. I have discussed this case with Dr. Cooney and he and I both agree that a super expert opinion would be of great benefit in her case. Will try to make arrangements for her to get a ...

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