Submitted: September 6, 1996
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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.
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 1 through 3 were admitted at trial by stipulation.
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
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
(3) Is claimant is entitled to attorney fees, costs, and a
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:
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.
January 1992, and for the 19 previous years, the claimant was
employed by the American Red Cross (Red Cross).
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.
Immediately following the accident claimant experienced pain
in her right cervical area and right arm.
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.
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
Request to Attend the Mayo Clinic
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.
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
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.)
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. (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.)
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.
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.)
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
IMPRESSION: 1. Cervical strain/sprain secondary to a motor
vehicle accident on 1-9-92.
2. Right upper extremity pain and tenderness, secondary to
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.)
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."
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
(Id. at A-73.)
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 ...