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Block v. Indemnity Insurance Company of North America

Court of Workers Compensation of Montana

April 18, 2000

JODY BLOCK Petitioner
v.
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA Respondent/Insurer for MOODY'S MARKETS, INCORPORATED d/b/a HARVEST FOODS Employer.

          Submitted: January 18, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 38 year-old former delicatessen worker sought additional temporary total disability benefits, claiming she had not reached MMI following back injury. IME physician, an orthopedic surgeon, examined claimant and also reviewed records of claimant's extensive medical history, concluding she had a long history of back pain and finding she had returned to her pre-injury baseline. Claimant's physician gave a later MMI date based on his general experience with back injuries. He did not review medical records until the day before trial. Insurer demonstrated through detailed review of medical records that claimant had history of seeking drugs and was not a credible witness.

         Held: Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not a credible witness, WCC rejected her testimony about continued disability and that of physician who had not reviewed complete medical records before rendering opinion. Claimant not entitled to continued TTD.

         Topics:

Benefits: Temporary Total Benefits. Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not credible witness, Court rejected her testimony about continued disability and that of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.
Evidence: Expert Testimony: Physicians. Where records from numerous medical providers documented claimant's drug seeking behavior, Court rejected testimony of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.
Maximum Medical Improvement. Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not credible witness, Court rejected her testimony about continued disability and that of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.
Witnesses: Credibility: Drug Abuse. Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not credible witness, Court rejected her testimony about continued disability and that of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.

         ¶1 This trial in this matter was held on January 18, 2000, in Missoula, Montana. The petitioner, Jody Block (claimant), was present and represented by Mr. Rex Palmer. Respondent, Indemnity Insurance Company (Indemnity), was represented by Mr. Leo S. Ward.

         ¶2 Exhibits: Exhibits 1 through 17 and 19 through 21 were admitted without objection. Exhibit 18 was withdrawn. Exhibit 22 was consolidated with Exhibit 21.

         ¶3 Witnesses and Deposition: Claimant, Dr. Gary Cooney, and Michelle Fairclough testified at trial. The deposition of claimant was also submitted for the Court's consideration.

         ¶4 Issues: As rephrased by the Court, the following issues are presented:

1.Whether claimant is entitled to additional temporary total disability benefits.
2.Whether claimant is entitled to attorney fees and a penalty with respect to any additional temporary total disability benefits which may be awarded by the Court.

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

         Findings of Fact

         ¶6 Claimant is 38 years old. She dropped out of school in the 10th grade and does not have a GED.

         ¶7 Claimant's testimony concerning her work history was inconsistent in places and contradicted by medical records in others. She testified in her deposition that after moving to Montana in 1986, she worked a short time for West Mont as a home care provider, quit that job, then worked caring for an elderly woman for approximately five years. (Block Dep. at 10-12.) She then testified that she couldn't work for several years because her boy friend harassed and stalked her. Her testimony indicates this went on for eight years. (Id. at 12-13.) Later in her deposition she indicated she was unemployed only two years. (Id. at 21.) Her trial testimony was that she was unemployed for four or five years. Medical records indicate that she was working as a home care provider in early 1996, (ex. 21 at 16, 20-21), but she denied working at that time.

         ¶8 In late 1996 claimant was hired by Moody's Markets (Moody's) in Lolo, Montana, to work in its delicatessen.

         ¶9 On March 24, 1998, the claimant hurt her back at work while lifting a 50 pound bag of flour. She filed a claim for compensation.

         ¶10 At the time of her injury, Moody's was insured by Indemnity, which accepted liability for her claim.

         ¶11 On the same day as her injury, claimant sought care at the emergency room of Community Medical Center in Missoula. (Ex. 21 at 159-165.) At that time she was complaining of "thoracic spine pain radiating down to her lower back," along with "radiation of the pain down her right buttock." (Id. at 161.) Upon examination, the only noteworthy finding was "tenderness" in the right back and buttock. (Id.) The ER physician diagnosed "[b]ack strain," prescribed Ibuprofen, Lortab (a narcotic analgesic with acetaminophen) and Valium; discharged her to home; and instructed her to follow-up with Dr. Ned F. Vasquez, who is claimant's family physician. (Id.)

         ¶12 Three days later, on March 27, 1998, claimant returned to the Community Medical Center ER and advised the ER physician that she had an appointment with Dr. Vasquez for the next Monday but was nearly out of pain medication and "would be out of pain medication over the weekend." (Id. at 157.) The doctor wrote prescriptions for refills of Lortab and Valium.

         ¶13 Dr. Vasquez saw claimant on March 30, 1998. (Ex. 8 at 4-5.) On his examination he noted tenderness involving virtually her entire back from the neck down. (Id.) In his assessment, he wrote:

A: Original injury probably involved lumbar strain. He [sic] has persisting Sx [symptoms] in that area but also has multiple other Sx suggesting bilateral trapezius strain and thoracic strain. . . .

(Id. at 5.) He prescribed various medications, including Lortab, and physical therapy. (Id.)

         ¶14 Following three physical therapy sessions (id. at 5-15), claimant returned to Dr. Vasquez on April 10, 1998. At that time she reported "she is 'miserable' and proceeds in describing numerous Sx [symptoms]." (Id. at 16, quotation marks in original.) Dr. Vasquez commented:

Jody now has even more widespread Sx than she did at initial visit. Her Sx can certainly not be organized under one diagnosis. Most of her Sx are probably muscular in nature.

(Id.) He recommended a neurosurgical consultation. (Id.)

         ¶15 Dr. Richard C. Dewey, a neurosurgeon, examined claimant on April 21, 1998. She reported pain in different spots of her back, "first in one spot, then the other." (Ex. 13 at 1.) Upon examination, Dr. Dewey found "[m]arked spasm in the trapezii and the rhomboids bilateral and tenderness on all of the erector muscles of the spine." (Id.) He diagnosed a "typical case of fibromyalgia or migratory muscle spasms," recommended a good stretching program, and indicated she could return to work "when she is more comfortable." (Id. at 2.) He did not restrict her from heavy lifting but recommended she prepare herself before lifting and that she stretch hourly. (Id. at 2.)

         ¶16 Dr. Dewey saw claimant again on May 26, 1998, in follow-up. At that time he noted she was "much better than she was a month ago." (Ex. 8 at 25.) He noted, however, that she was not doing her stretching exercise effectively and reinstructed her on stretching. He released her to return to work without restriction. (Id.)

         ¶17 Meanwhile, on April 30, 1998, claimant went to Dr. Gary D. Cooney, a neurologist for evaluation. In her history to Dr. Cooney, claimant reported she had "intermittent problems with pain in various areas of her back for a number of years," which had generally responded to non-steroidal anti-inflammatory drugs. (Ex. 7 at 1.) She reported her pain following her March 24th injury as predominantly in the T7-T10 area on the right side with achy discomfort in the right lumbar and cervical-trapezius regions. She told Dr. Cooney that she had experienced no substantial improvement in her back pain since the injury. (Id.)

         ¶18 Dr. Cooney reported that claimant had some tenderness of her back upon examination and some degree of kyphoscoliosis, but the exam was otherwise unremarkable. (Id.) He diagnosed "[t]horacolumbar strain/sprain injury" and prescribed various medications. (Id. at 3.)

         ¶19 Dr. Cooney saw claimant again on June 1, 1998, six days after she had last been seen by Dr. Dewey. As did Dr. Dewey, he noted improvement in claimant's complaints. He released her to return to work as of June 4, 1998, however, he restricted her to lifting 50 pounds or less. (Id. at 6.)

         ¶20 Claimant then went back to work at Moody's sometime in June. (See Ex. 20 at 16-17.) On June 19, 1998, she went to Community Medical Center complaining that she had been lifting heavy objects at work and reinjured her back. (Ex. 21 at 85.) She reported low-back pain and pain shooting down both legs. (Id.) The physician examining her diagnosed low-back sprain. (Id.) He instructed her to return to Dr. Vasquez.

         ¶21 On July 13, 1998, claimant returned to Dr. Cooney complaining of increased mid-thoracic pain due to work, which she reported was more physically demanding than her preinjury work. (Ex. 7 at 8.) Dr. Cooney took her off work for a month. (Id.) On August 10, 1998, claimant reported no ...


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