Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Klein v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

March 4, 1997

LINDA KLEIN Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for ST. JOSEPH CONVALESCENT & RETIREMENT CENTER Employer.

          Submitted December 5, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: Certified nursing assistant who slipped and fell at work challenged date on which TTD benefits were terminated, asked for coverage of additional medical services, and sought PPD benefits . A panel of medical providers, including an orthopedic surgeon, a pain specialist, and an occupational specialist, opined that claimant did not suffer any structural or neurological impairment as the result of the accident, was not recovering as expected due to preexisting psychological problems, and had reached maximum medical improvement. A rheumatologist diagnosed claimant with fibromyalgia and opined that her condition preexisted, but was aggravated by, the industrial injury. He opined that claimant, like other fibromyalgia patients, had become deconditioned following the flare-up of pain, which suggested she was not at MMI as early as claimed by the panel.

         Held: The medical evidence, as well as claimant's testimony and the insurer's acceptance of the claim, establishes that claimant did in fact suffer an industrial injury. She aggravated her preexisting and underlying condition of fibromyalgia. This led to deconditioning, a condition which was not remedied at the time the panel placed her at MMI. Since the deconditioning was a result of the occupational injury and since it was treatable with an exercise program, claimant did not reach MMI until she had the benefit of that program. The medical evidence, however, fails to establish that the effects of the industrial injury are permanent in any way. At most, she suffered a setback in a long-term condition. She is now at MMI and has no permanent impairment. The insurer is liable for treatment to return claimant to her baseline status, even if some of that treatment flowed from the underlying condition that flared up with the industrial accident. An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).

         Topics:

Benefits: Temporary Total Benefits. Injured CNA was not at maximum medical improvement where her deconditioning prevented her from returning to her normal CNA duties. Where a sustained exercise program promised to increase claimant's conditioning sufficiently for her to resume her job, there was a reasonable potential for "material improvement" in her condition within section 39-71-116(17), MCA, (1993). She was entitled to TTD benefits during the period she still required conditioning. This does not mean, however, that insurers must pay to train claimants as athletes or that additional conditioning will result in "material improvement" in every case.
Maximum Medical Improvement. Injured CNA was not at maximum medical improvement where her deconditioning prevented her from returning to her normal CNA duties. Where a sustained exercise program promised to increase claimant's conditioning sufficiently for her to resume her job, there was a reasonable potential for "material improvement" in her condition within section 39-71-116(17), MCA, (1993). She was entitled to TTD benefits during the period she still required conditioning. This does not mean, however, that insurers must pay to train claimants as athletes or that additional conditioning will result in "material improvement" in every case.
Maximum Medical Improvement. Where exercise, physical therapy, or other therapy is prescribed by a claimant's treating physician, the claimant has an obligation to follow through with the treatment or risks suspension of benefits. See Meidinger v. Western Energy Co., 254 Mont. 18, 23, 834 P.2d 1382, 1385 (1992).
Medical Conditions: Conversion Disorder. An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Medical Conditions: Fibromyalgia. WCC declines insurer's invitation to determine whether fibromyalgia is a medically correct diagnosis. Compensability does not turn on the validity of the diagnosis. It requires only that the claimant suffer an injury of some sort and, for purposes of compensation benefits, be disabled as the result of the injury.
Medical Conditions: Fibromyalgia. The medical evidence, as well as claimant's testimony and the insurer's acceptance of the claim, establishes that claimant did in fact suffer an industrial injury. She aggravated her preexisting and underlying condition, which was diagnosed as fibromyalgia. This led to deconditioning, a condition which was not remedied at the time the panel placed her at MMI. Since the deconditioning was a result of the occupational injury and since it was treatable with an exercise program, claimant did not reach MMI until she had the benefit of that program. The medical evidence, however, fails to establish that the effects of the industrial injury are permanent in any way. At most, she suffered a setback in a long-term condition. She is now at MMI and has no permanent impairment.
Medical Conditions: Fibromyalgia. The insurer is liable for treatment to return claimant to her baseline status, even if some of that treatment flowed from the underlying condition (diagnosed as fibromyalgia) that flared up with the industrial accident. An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Medical Conditions: Somatoform Disorder. An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Pain. An employer and insurer take a claimant as they find her, with regard to both preexisting physical and emotional conditions. See Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Witnesses: Credibility. While a determination that a claimant is not at MMI must be supported by a preponderance of medical evidence, see section 39-71-701(2), MCA (1993), a preponderance is not determined by the number of medical witnesses who testify on one side of the issue or another. The court must look to the persuasiveness of the testimony, considering all that the witnesses state, not just their ultimate opinions. See McQuay v. McQuay, 81 Mont. 311, 320, 263 P.2d 683 (1928) (holding that a fact may be established by the testimony of one witness even where the remaining witnesses testify to the contrary).

         The trial in this matter was held on December 5, 1996, in Kalispell, Montana. Petitioner, Linda Klein (claimant), was present and represented by Ms. Laurie Wallace. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1, 3 through 6, and 8 and 9 were admitted without objection. Exhibit 2 was withdrawn. Exhibit 7 is contained within the records deposition of Sean Welton and was admitted. Exhibit 10 was admitted without objection for demonstrative purposes. Exhibit 11 was admitted after trial by stipulation of the parties.

         Witnesses and Depositions: Claimant, Diana DesJarlais, and Cynthia Bean were sworn and testified. In addition, the parties submitted the depositions of claimant, Sean Welton, Dr. Ethan B. Russo, Dr. Henry W. Busey, Dr. Martin D. Cheatle, Dr. Michael Lahey, Dr. Pamela Sandall, and Dr. Dana Headapohl for the Court's consideration.

         Issues Presented: As rephrased by the Court, the petition in this matter presents the following issues:

(1)Whether claimant is entitled to additional temporary total disability benefits for the period of October 21, 1995 to August 16, 1996;
(2)whether claimant is entitled to permanent partial disability benefits;
(3)if claimant is entitled to permanent partial disability benefits, whether such benefits should be paid in a lump sum;
(4)whether Liberty Northwest is liable for unpaid pharmacy bills, for Dr. Busey's bill, and for further treatment of fibromyalgia; and
(5)whether claimant is entitled to attorney fees, costs and a penalty.
* * * * * * * *

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

         FINDINGS OF FACT

         1.Claimant is 48 years old and resides in Ronan, Montana.

         2.Claimant is a high school graduate and has one year of college. She has worked as a maid at a motel, a cashier at a grocery store, a front desk clerk and cashier at a department store, and a nurses aide. (Klein Dep. at 36.)

         3.Claimant was certified as a nurse assistant (CNA) in 1990. (Ex. 3 at 36.) Following her certification she worked as a nurses aide. From October 1989 to March 1990, a period overlapping her certification, she worked as an aide, caring for elderly persons. She was then unemployed until February 1991 when she returned to work, but was again off work commencing in March 1992 due to cataract surgery. In August 1993 she returned to work for St. Joseph Convalescent & Retirement Center (St. Joseph).

         4.On March 6, 1995, while employed as a CNA at St. Joseph, claimant slipped on a wet floor and fell on her buttocks. She immediately felt pain in her lower back, buttocks, and the backs of her thighs. (Klein Dep. at 12.) However, she continued to work for another two weeks without reporting the accident. When her pain did not abate, claimant reported the accident to Bill McDonald, an administrator with St. Joseph.

         5.At the time of injury, Liberty insured St. Joseph. Liberty accepted liability for claimant's injury and paid temporary total disability benefits until October 20, 1995. It also paid medical bills with the exception of a bill from Dr. Henry Busey and pharmacy bills for medication prescribed by Dr. Busey

         6.Prior to her injury, the claimant had a history of chronic low-back pain. (Ex. 1 at 44, 36.) She described her history of back problems as follows:

I've always had some kind of back pain, especially when I do exertion, but nothing -- and I will state this, nothing like it was after that fall. Achiness, yes. I call it pain, but it wasn't -- it was more achiness, tired achiness all the time, you know, when you over stress your body, which I have a tendency to do. But after that fall, the pain was 20 times more severe.

(Klein Dep. at 40.) Dr. Michael Lahey recorded that claimant "can't remember not having back discomfort." (Ex. 1 at 44.)

         7.Claimant's history of back problems included two automobile accidents. In 1972 she injured her neck in a car accident. (Klein Dep. at 31-32). In 1978 she was involved in a head-on collision, after which she reported low-back symptoms. (Id.; Ex. 1 at 44.)

         8.However, up until the time of her industrial injury she had been able to perform all of her job duties as a CNA and had needed no significant medical attention. Her CNA duties were physically demanding. She assisted in bathing, dressing, and feeding nursing home residents. She assisted in lifting and transferring residents from their beds to wheelchairs. Her job entailed constant lifting, bending, and stooping. She lost no significant time from her CNA work on account of her backaches. (Ex. 1 at 44.) Other than occasional chiropractic treatments and treatment following her automobile accidents, she had no significant medical care or hospitalization relating to her back. Her chronic back-ache also did not limit her recreation or housework.

         9.Dr. R. Stephen Irwin, a physician at the Polson office of the Western Montana Clinic, did an employment physical of claimant in February of 1990 and "found no condition that appears to prevent him/her from performing the duties of the position applied for." (Ex. 3 at 102.) Dr. Irwin performed another employment health examination in January of 1992 and again approved claimant's employment (Ex. 3 at 71.)

         10.A coworker of claimant, Diana DesJarlais, testified that prior to claimant's industrial accident she had observed claimant "lift anybody" and often work overtime. She acknowledged that claimant "occasionally" complained of pain but said that chronic aches and pains "come with the job [CNA]." Ms. DesJarlais has worked with claimant since her return to work at St. Joseph in September 1996, and testified that claimant appears to have difficulty performing her job.

         Post-Injury Medical

         11.Steven VanDonselaar, a physician's assistant at Western Montana Clinic in Polson, examined claimant on March 20, 1995. (Ex. 1 at 61.) He ordered x-rays and noted that they were "totally unremarkable." (Id.)

         12.Bill McDonald, a supervisor at St. Joseph, referred claimant to a physical therapist who treated claimant with heat and ultrasound. (Klein Dep. at 13-14.) Following physical therapy, claimant complained of increased pain in the lower back, buttocks, and down the back of the thighs. In addition, she said she experienced new symptoms of pain, tingling, and numbness down both calves and into her feet and swelling in her knees and ankles. (Klein Dep. at 16-17.) She further testified that the physical therapy "pushed" the pain up her spine into her neck and across her shoulders and that for four months following physical therapy she suffered continuous, severe headaches. (Id. at 18, 25.) Neither Dr. Headapohl nor Dr. Busey, both of whom addressed claimant's complaints regarding the therapy, could explain claimant's reaction to the therapy. (Headapohl Dep. at 37; Busey Dep. at 19.)

         13.Dr. Irwin examined claimant on March 31, 1995. (Ex. 1 at 59.) Claimant told him she had pain in the lower back radiating into the posterior aspect of her legs, headaches, and some left arm pain. (Id.) He described her as "tearful today and also intermittently agitated and angry. She seems quite dysfunctional in her response to pain." (Id.) Other than tenderness over the lower sacral area, her physical exam was normal. (Id.) Dr. Irwin diagnosed claimant with a lumbar strain and prescribed rest and Oruvail, an NSAID (non-steroidal anti-inflammatory drug). (Id.)

         14.Claimant returned to Dr. Irwin on April 5, 1995. (Id. at 57.) He noted on that date:

This pt [patient] is back today just 5 days after her most recent visit. She is very angry considerably at P.T. Dept. at St. Joseph Convalescent Center because she thinks they were too aggressive and made it worse. Today she appears agitated, anxious and tearful. She is very impatient for improvement. She has a lot of financial burdens and stresses. Doesn't know how she is going to make ends meet w/o being able to work. . . .
Back remains normal to inspection and palpitation. She still seems somewhat dysfunctional in her pain response. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.