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Waite v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 5, 1998

TAMI WAITE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for DICK IRVIN, INCORPORATED Employer.,

          Date Submitted: May 27, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 35 year old claimant sought permanent total disability benefits due to severe, debilitating pain in her low back, hips and legs following fall on ice at work. She suffers tremors in her low body; the pain is always present; and she is on numerous medications, including controlled release morphine. There is no serious dispute that her tremors and pain are real, evidently the result of damage to her sacroiliac joint and/or interspinous ligaments. She tried to return to work twice, but each time suffered debilitating pain.

         Held: Claimant is PTD because she has reached maximum medical healing according to physicians and is presently unable to work. While IME physician opined the tremors could be eliminated by learning and distraction, which is supported to some extent by video, WCC gives greater weight to treating physician where their expertise appears similar. Treating physician knows claimant better; his opinion is bolstered by claimant's apparent desire to return to work. But, WCC notes it does not find claimant will never be able to work and urges both parties to remain open to options for further treatment that may improve claimant's condition and employability.

         Topics:

Benefits: Permanent Total Benefits: Generally. 35 year old claimant with severe, debilitating pain in low back, hips, and legs following fall on ice, found permanently totally disabled. She suffers tremors in her low body; the pain is always present; and she is on numerous medications, including controlled release morphine. There is no serious dispute that her tremors and pain are real, evidently the result of damage to her sacroiliac joint and/or interspinous ligaments. She tried to return to work twice, but each time suffered debilitating pain. While IME physician opined the tremors could be eliminated by learning and distraction, which is supported to some extent by video, WCC gives greater weight to treating physician where their expertise appears similar. Treating physician knows claimant better; his opinion is bolstered by claimant's apparent desire to return to work. But, WCC notes it does not find claimant will never be able to work and urges both parties to remain open to options for further treatment that may improve claimant's condition and employability.
Physicians: Treating Physicians: Weight of Opinions. WCC found claimant permanently totally disabled, relying in part upon opinion of treating physician, a physiatrist, over IME physiatrist. WCC gives greater weight to treating physician where both doctors' expertise appears similar. Treating physician knows claimant better; in addition, his opinion is bolstered by claimant's apparent desire to return to work and credibility in her pain reports.

         ¶1 The trial of this matter was held on May 27, 1998, in Kalispell, Montana. Petitioner, Tami Waite (claimant), was present and represented by Mr. David W. Lauridsen. The respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams.

         ¶2 Exhibits: Exhibits 1 through 12 were admitted without objection.

         ¶3 Witnesses and Depositions: The claimant and Larry Goroski testified. The parties also submitted depositions of Drs. Patrick Galvas and James D. Hinde.

         ¶4 Issues: Claimant asks the Court to find her permanently totally disabled. She also requests a penalty, attorney fees and costs.

         ¶5 Bench Ruling: After hearing the trial testimony and reviewing the depositions and exhibits, the Court found claimant to be permanently totally disabled. However, I held that the State Fund did not act unreasonably and that claimant is not entitled to either attorney fees or a penalty. Because she prevailed, claimant is entitled to costs.

         ¶6 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

         ¶7 The claimant is presently 35 years old. She has worked as a waitress, bartender, in ...


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