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Lockhart v. New Hampshire Insurance Co.

Court of Workers Compensation of Montana

December 11, 1997

DOUG LOCKHART Petitioner
v.
NEW HAMPSHIRE INSURANCE COMPANY Respondent/Insurer for LABOR CONTRACTORS Employer.

          Submitted: September 16, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: At the age of 15, claimant suffered a lunate necrosis of his right wrist, leading to implantation of a Silastic lunate implant. In the fifteen years since the procedure, physicians discovered that such implants almost inevitably fail. After completing high school, claimant worked in various capacities, principally in construction, without problems with the implant. In 1996, while hammering a nail, claimant experienced sudden onset of sharp pain in his right wrist. The pain continued, leading to medical treatment. A fragment was noted on x-rays. Claimant's treating physician, who performed the original surgery sixteen years earlier, gave the opinion a fragmentation occurring as the result of hammering on the day the wrist pain began. An IME physician, who performed hundreds of IMEs per year for insurance companies, examined claimant and testified his current medical condition results from deterioration of the implant, not from a single incident.

         Held: Claimant's condition results from an injury while hammering. While the medical evidence is conflicting, the Court is persuaded by the evidence in claimant's favor, including: his credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician, another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis. Claim for penalty and attorneys fees denied where the insurer's denial of the claim was reasonable and based on medical evidence.

         Topics:

Injury and Accident: Accident. Parties disputed whether claimant's wrist condition resulted entirely from deterioration of Silastic lunate implant he received fifteen years earlier, or whether his hammering in construction job caused fragmentation in implant or surrounding bone. WCC was persuaded an injury occurred, based upon: claimant's credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician (who performed hundreds of IMEs a year for insurance companies), and another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis.
Physicians: Conflicting Evidence. Parties disputed whether claimant's wrist condition resulted entirely from deterioration of Silastic lunate implant he received fifteen years earlier, or whether his hammering in construction job caused fragmentation in implant or surrounding bone. WCC was persuaded an injury occurred, based upon: claimant's credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician (who performed hundreds of IMEs a year for insurance companies), and another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis.
Physicians: Treating Physician: Weight of Opinion. Parties disputed whether claimant's wrist condition resulted entirely from deterioration of Silastic lunate implant he received fifteen years earlier, or whether his hammering in construction job caused fragmentation in implant or surrounding bone. WCC was persuaded an injury occurred, based upon: claimant's credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician (who performed hundreds of IMEs a year for insurance companies), and another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis.
Proof: Conflicting Evidence: Medical. Parties disputed whether claimant's wrist condition resulted entirely from deterioration of Silastic lunate implant he received fifteen years earlier, or whether his hammering in construction job caused fragmentation in implant or surrounding bone. WCC was persuaded an injury occurred, based upon: claimant's credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician (who performed hundreds of IMEs a year for insurance companies), and another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-712, MCA (1995). Although section 39-71-712, MCA (1995) limits temporary partial disability benefits to 26 weeks, insurer was estopped from relying on 26 week limit where it had denied claim and caused claimant to delay surgery, meaning he could not undergo surgery and return to temporary total disability status before using up 26 weeks.
Benefits: Temporary Partial Disability Benefits. Although section 39-71-712, MCA (1995) limits temporary partial disability benefits to 26 weeks, insurer was estopped from relying on 26 week limit where it had denied claim and caused claimant to delay surgery, meaning he could not undergo surgery and return to temporary total disability status before using up 26 weeks.
Estoppel and Waiver: Equitable Estoppel. Although section 39-71-712, MCA (1995) limits temporary partial disability benefits to 26 weeks, insurer was estopped from relying on 26 week limit where it had denied claim and caused claimant to delay surgery, meaning he could not undergo surgery and return to temporary total disability status before using up 26 weeks.

         The trial in this matter was held on Tuesday, September 16, 1997, in Kalispell, Montana. Petitioner, Doug Lockhart (claimant), was present and represented by Mr. Kenneth S. Thomas. Respondent, New Hampshire Insurance Company (New Hampshire), was represented by Mr. Donald R. Herndon.

Exhibits: Exhibits 1 through 7 were admitted without objection.

         Witnesses and Depositions: Claimant and Bill Vergin were sworn and testified. Additionally, the parties submitted the depositions of Dr. Peter A. Nathan, Dr. James F. Brinkman, Bill Vergin and claimant to the Court for its consideration.

         Issues: The parties have phrased the issues as follows:

1. Whether the Petitioner suffered a compensable industrial injury arising out of and in the course of his employment on or about October 3, 1996, while employed by Labor Contractors, Flathead County, Kalispell, Montana.
2. Whether the Petitioner is entitled to payment of temporary total disability benefits resulting from Petitioner's industrial injury.
3. Whether Petitioner is entitled to a 20% increase of award for unreasonable delay or refusal to pay benefits pursuant to section 39-71-2907, MCA.
4. Whether Petitioner is entitled to reasonable attorney fees and costs pursuant to section 39-71-611, MCA.

(pretrial order at 2-3.)

* * * * *

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

         FINDINGS OF FACT

         1. Claimant is presently 31 years old. He is a high school graduate.

         2. When claimant was 15 years old he suffered a lunate necrosis of his right wrist. The condition involved the lunate bone of the wrist, which is one of eight bones of the wrist. Ben Pansky, Review of Gross Anatomy, (6th ed. 1996) at 286-89. The lunate bone is proximal to the radius and ulna bones of the arm. Id. "Necrosis" means the" death of living tissue," Medical Dictionary, Merriam-Webster, Inc. (1997) [online at www.medscape.com.], hence claimant's condition involved the death of living bone. Dr. James F. Brinkman, who treated claimant's condition, testified as follows concerning claimant's condition:

Q At the time that this lunate prosthesis was installed in Douglas Lockhart, what were the clinical indications for doing that?
A What is called Keinbock's disease or collapsed or absorption or sclerosis of the lunate bone, posttraumatic, arthritic changes in the bone.
Q Is it disease or trauma that caused the original problem?
A Most likely trauma. For some reason or another there is a change in blood supply to the lunate, and it causes that type of alteration to it. What exactly causes this is still not definitely known.

         (Brinkman Dep. at 7.) Dr. Peter A. Nathan, who performed an independent medical examination (IME), described Keinbock's disease as follows:

A. It's a terrible disease in which the lunate bone loses its vascularity, so it means --
Q. Blood supply you mean?
A. Blood supply.
Q. All right.
A. That means death of the bone. And it's virtually impossible to get that vascularity back into the bone once it occurs.

(Nathan Dep. at 15.)

         3. As a result of lunate necrosis, claimant underwent at least two operations when he was 15 and 16 years old. One surgery involved a bone graft of the lunate bone. (Brinkman Dep. at 6.) The graft failed and thereafter the lunate bone was removed and replaced with a "Silastic lunate" which is a silicon prosthesis or replacement for the lunate. (Id. at 7.)

         4. The Silastic lunate implant occurred approximately 15 years ago. At the time of claimant's surgery, the implant was a promising procedure. However, in the intervening 15 years, physicians have discovered that the implants almost inevitably fail. Dr. Brinkman, who performed the implant, testified:

The long-term follow-up showed the lunate wouldn't hold up well and oftentimes would fragment, and so I don't know of anyone who is still using a lunate unless it is an exceptional case.

(Id. at 8.) Dr. Nathan concurred, testifying that the implants fail in 10 to 15 years. (Nathan Dep. at 30.)

         5. The foregoing history is important because the question presented in this case is whether the onset of debilitating wrist pain which claimant suffered in October 1996 was due to natural failure of the Silastic lunate implant or whether some event at work accelerated the failure of the implant.

         6. Following the implant, claimant completed high school and entered the labor market. In the 15-16 years since the implant, he has worked as a laborer. He worked for a time as a stable hand for racehorses. For the 12 years preceding his alleged industrial accident, he worked construction, primarily doing concrete work and carpentry.

         7. During those 15-16 years, there is only one documented instance of claimant seeking medical care with regard to his wrist. That instance was in 1984 and is reflected in a note of Dr. John W. Hilleboe, an orthopedic surgeon practicing in Kalispell. In a note of May 24, 1984, Dr. Hilleboe recorded:

Doug came to the office, his cast was removed. I think he just had basically a tendinitis of his ulnar collateral ligament at the wrist. I reviewed his x-rays which came from Dr. Brinkman's office with those recently obtained here and do not see any subluxation of the wrist, nor do I see any real eburnation or loss of position of the lunate. Therefore, I think that this is strictly a connective tissue problem and that he should be treated as such.

(Ex. 2 at 1.) Claimant did not recall the visit or the problem. Dr. Hilleboe did not testify, so the only information available to the Court is reflected in the above office note. On its face the note expresses Dr. Hilleboe's impression that claimant was suffering "tendinitis of his ulnar collateral ligament at the wrist" which was "strictly a connective tissue problem."

         8. Claimant testified that until October 3, 1996, he did not have wrist pain. As noted in the previous paragraph, he did not recall his treatment by Dr. Hilleboe in 1984. There is no evidence, other than the 1984 visit to Dr. Hilleboe, that he ever sought medical care for his wrist until 1996 or that he experienced pain in his wrist during the intervening years. Claimant's stepfather corroborated his testimony. Claimant was a credible witness and there is no direct evidence that between 1984 and October 1996 he suffered ...


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