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Bartels v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 17, 1998

PERRY BARTELS Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for PREWITT FEEDLOT, INCORPORATED Employer.,

          Submitted: February 9, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: A 45-year old mill operator claimed permanent total disability. In 1992, at the age of 39, he suffered a closed head injury after being knocked unconscious by a group of cows and gate. He remained on temporary total disability benefits through December 14, 1995, when the insurer terminated benefits on the opinions of two neuropsychologists that claimant was capable of returning to his time of injury job. The record demonstrates claimant had limited intellectual and cognitive abilities as well as hysterical personality traits pre-injury. According to expert testimony, these traits makes it more difficult for him to overcome challenges and deficits following the head injury. He also displays somewhat strange behavior and statements in conflict with those of others.

         Held: The Court finds claimant presently permanently, totally disabled. The Court is persuaded that claimant presently has no prospect of regular employment given the impact of his closed head injury on his pre-existing abilities and personality. The Court notes that claimant was able to obtain and keep employment prior to the injury, but since the injury has not worked, other than through an on the job training program, which was ultimately not successful. The Court rejects the insurer's contentions claimant is not credible and is deliberately malingering. No credible expert has rendered that opinion. The Court's own impression of claimant through observations of his testimony at trial and review of the record is that claimant's bizarre behavior and incredible statements are a product of his personality and circumstances, including the aftereffects of the injury, and are not premeditated. Despite the PTD finding, the Court believes that with significant assistance, claimant could once more become employable, as suggested by his improvement during a 1993-1994 rehabilitation program.

         Topics:

Benefits: Permanent Total Benefits: Generally. The Court finds PTD a 45-year old mill operator who suffered a closed head injury at the age of 39 and has not since worked. Given the impact of the head injury on claimant's pre-existing limited intellectual and cognitive abilities and hysterical personality tendencies, he presently has no prospect of regular employment. The Court notes that claimant was able to obtain and keep employment prior to the injury, but since the injury has not worked, other than through an on the job training program, which was ultimately not successful. The Court rejects the insurer's contentions claimant is not credible and is deliberately malingering. No credible expert has rendered that opinion. The Court's own impression of claimant through observations of his testimony at trial and review of the record is that claimant's bizarre behavior and incredible statements are a product of his personality and circumstances, including the aftereffects of the injury, and are not premeditated. Despite the PTD finding, the Court believes that with significant assistance, claimant could once more become employable, as suggested by his improvement during a 1993-1994 rehabilitation program.
Vocational - Return to Work Matters: Employability. The Court finds PTD a 45-year old mill operator who suffered a closed head injury at the age of 39 and has not since worked. Given the impact of the head injury on claimant's pre-existing limited intellectual and cognitive abilities and hysterical personality tendencies, he presently has no prospect of regular employment. The Court notes that claimant was able to obtain and keep employment prior to the injury, but since the injury has not worked, other than through an on the job training program, which was ultimately not successful. The Court rejects the insurer's contentions claimant is not credible and is deliberately malingering. No credible expert has rendered that opinion. The Court's own impression of claimant through observations of his testimony at trial and review of the record is that claimant's bizarre behavior and incredible statements are a product of his personality and circumstances, including the aftereffects of the injury, and are not premeditated. Despite the PTD finding, the Court believes that with significant assistance, claimant could once more become employable, as suggested by his improvement during a 1993-1994 rehabilitation program.

         ¶1 The trial in this matter was held on January 12 and 13, 1998, in Great Falls, Montana. Petitioner, Perry Bartels (claimant), was present and represented by Mr. Cameron Ferguson. The respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. A partial transcript, consisting of Dr. Marion Martin's testimony, has been prepared.

         ¶2 Witnesses: Claimant, Jo Ellen Bartels (claimant's wife), Betty Wilson (claimant's mother-in-law) and Marian Martin, Ph.D. were sworn and testified. By agreement of the parties, Hal Bowles testified by telephone. No depositions were submitted.

         ¶3 Exhibits: Exhibits 1 through 10 were admitted without objection.

         ¶4 Proposed Findings: The parties submitted post-trial proposed findings of fact and conclusions of law. The matter was deemed submitted for decision on February 9, 1998.

         ¶5 Issues: The parties have set forth three issues in the Pretrial Order, which the Court combines and restates as follows:

• Is claimant presently permanently totally disabled?
• Is claimant entitled to total disability benefits retroactive to December 1995?

         FINDINGS OF FACT

         ¶6 Claimant is 45 years old. He is married and lives with his wife in or near Sidney, Montana.

         Workers' Compensation Injuries

         ¶7 For a number of years, the claimant was employed by Prewitt Feedlot Incorporated (Prewitt). His job duties included operation of a mill at the feedlot and helping out with cattle.

         ¶8 On January 23, 1991, claimant fell on ice while at Prewitt and injured his left elbow.

         ¶9 On August 10, 1992, claimant was helping put cattle into a pen at Prewitt when he was struck by a gate. He was knocked unconscious.

         ¶10 After regaining consciousness claimant was taken to the emergency room at the Community Memorial Hospital in Sidney. He was hospitalized overnight.

         ¶11 During his hospitalization, claimant was treated by Dr. Donald A. Cooper. (Ex. 5a at 32.) Dr. Cooper is an internist and had treated claimant on two prior occasions in 1987 and 1991.

         ¶12 Dr. Cooper made the following contemporaneous note concerning claimant's physical examination on August 10:

He is quite stuporous. He does not recognize me, he does not answer questions but seems to think about the question for several minutes, then gradually act[s] on it.

(Ex. 5a at 30, emphasis added.) In his discharge note of August 11, 1992, Dr. Cooper wrote:

This 39 year old man was admitted to the hospital on 8/10/92 and discharged on 8/11/92. He had been seen in the emergency room after being hit by a group of cows and gate and knocked an indeterminate distance and knocked unconscious. When he came in he was awake but he was unaware and his thinking was extremely slow.

(Ex. 5a at 32.) The notes raise a significant question as to whether claimant's reported preinjury recollection, and his belief that he was unconscious only briefly, are accurate.[1]

         Workers' Compensation Claims and Benefits Paid

         ¶13 At the time of the claimant's injuries, Prewitt was insured by the State Compensation Insurance Fund.

         ¶14 Claimant submitted written claims for both injuries and the State Fund accepted liability for both.

         ¶15 The State Fund initiated temporary total disability benefits sometime after claimant's head injury, however, on December 14, 1995, it gave claimant a 14-day notice that it was terminating his temporary total disability benefits. The termination was based on the opinions of two neuropsychologists who opined that claimant was capable of returning to his time-of-injury job.

         The Present Petition

         ¶16 Claimant disputes the State Fund's termination of benefits. He seeks reinstatement of his total disability benefits retroactive to December 28, 1995, the date they were terminated.

         ¶17 Claimant's request for reinstatement of total disability benefits is based on his closed-head injury. He does not contend that he is totally disabled on account of his elbow injury.

         Initial Comments Concerning Factual Basis for Decision

         ¶18 The question presented in this case is whether claimant's closed-head injury disables him from returning to his time-of-injury employment and from any other regular employment. I have found it an extraordinarily difficult task to make that determination. Despite the large stake both sides have in the resolution of the issue, the evidence presented by both sides was less than the issue deserves.

         ¶19 Claimant presented his medical evidence solely through medical records. Exclusive reliance on medical records makes sense in a case where the medical opinions are not in dispute. But in this case there is a significant dispute concerning the extent and effect of any head injury.

         ¶20 On its part, the State Fund relied on opinions of two neuropsychologists, one of whom testified at trial, that the claimant's level of intellectual functioning was not significantly affected by any head injury and that he should be able to return to his former work. However, neither neuropsychologist provided a full explanation as to why the claimant has not returned to employment. Is he deliberately exaggerating his symptoms and disability? While there is some evidence suggesting that possibility, neither neuropsychologist specifically argued it. While the State Fund attacked claimant's credibility it did so almost entirely based on his testimony and deportment at trial. That reliance might have been justified but for claimant's limited intelligence and his history, as documented in medical records, of bizarre and sometimes exaggerated perception and behavior.[2]

         Claimant's Preinjury Mental Status

         ¶21 Preinjury psychological testing placed claimant in the borderline range of intelligence and intellectual functioning. An IQ test performed in July 1983 showed a full-scale IQ of 83, which falls "within the dull normal range." (Ex. 9 at 348.) Another psychological test performed in 1983 showed "evidence of distractibility, poor attention span, and the potential for affective[3] instability." (Id.) An MMPI-1 administered in 1983 produced a profile which is consistent with individuals who "are often seen as introverted, unpredictable, and peculiar in action and thought." (Id.) The psychologist who evaluated claimant in 1983 commented that claimant ...


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