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Liberty Northwest Insurance, Corp. v. Thompson

Court of Workers Compensation of Montana

August 31, 2000

LIBERTY NORTHWEST INSURANCE, CORPORATION, Petitioner/Insurer for ALPINE LOG HOMES, Employer,
v.
LENNIE THOMPSON, Claimant/Respondent.

          ORDER FOR 39-71-610 BENEFITS

          MIKE McCARTER, JUDGE

         Summary of Case: Claimant suffered two falls at work in November 1999, injuring his low back, leg, and neck. He had previously suffered a neck injury and had neck surgery. The insurer paid temporary total disability (TTD) and medical benefits. It terminated TTD benefits and denied permanent partial disability (PPD) benefits based on an independent medical examination (IME) by Dr. Dana Headapohl, who found that claimant had reached maximum medical improvement (MMI) with respect to his injuries and suffered no impairment. Claimant seeks reinstatement of TTD or PPD benefits under section 39-71-610, MCA, while he mediates his entitlement to further benefits.

         Held: Where there are conflicting medical opinions, one supporting claimant, the first factor (strong prima facie case) for reinstatement of benefits is satisfied. Claimant has provided a strong prima facie case for reinstatement based on an opinion of Dr. Henry Gary, a neurosurgeon, who opined that claimant's fall resulted in a neck strain which continues to preclude him from his time-of-injury job. Dr. Headapohl agreed claimant could not return to the time-of-injury job based on his preexisting neck condition but her IME report and correspondence with the claims adjuster indicates she did not relate any neck strain to claimant's accidents. Her report does not address whether he is at MMI from neck strain and or has an impairment therefrom, and there is no MMI determination with respect to neck strain. The second two factors - financial need and duration of previous benefits - also cut in favor of claimant. Forty-nine days of benefits ordered with caveat that the Court makes no decision on the merits and that claimant will have to repay benefits if it is ultimately determined he is entitled to no further benefits.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-610 (1999). In ruling on a request for interim benefits, the Court looks to three factors: (1) whether there is a strong prima facie case on the merits; (2) financial need; and (3) duration of previous benefits. Where there are conflicting medical opinions, one supporting claimant, the first factor is satisfied.

         Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.314. In ruling on a request for interim benefits, the Court looks to three factors: (1) whether there is a strong prima facie case on the merits; (2) financial need; and (3) duration of previous benefits. Where there are conflicting medical opinions, one supporting claimant, the first factor is satisfied.

         Benefits: Interim (39-71-610) Benefits. In ruling on a request for interim benefits, the Court looks to three factors: (1) whether there is a strong prima facie case on the merits; (2) financial need; and (3) duration of previous benefits. Where there are conflicting medical opinions, one supporting claimant, the first factor is satisfied.

         ¶1 Liberty Northwest Insurance Corporation (Liberty) appeals from a July 13, 2000 Order of the Department of Labor and Industry directing Liberty to reinstate Lennie Thompson's (claimant's) temporary total disability benefits. The Order was issued under section 39-71-610, MCA, which provides:

39-71-610. Termination of benefits by insurer -- department order to pay disputed benefits prior to hearing or mediation -- limitation on order -- right of reimbursement. If an insurer terminates biweekly compensation benefits and the termination of compensation benefits is disputed by the claimant, the department may, upon written request, order an insurer to pay additional biweekly compensation benefits prior to a hearing before the workers' compensation court or prior to mediation, but in no event may the biweekly compensation benefits be ordered to be paid under this section for a period exceeding 49 days or for any period subsequent to the date of the hearing or mediation. A party may appeal this order to the workers' compensation court. If after a hearing before the workers' compensation court it is held that the insurer was not liable for the compensation payments ordered by the department, the insurer has the right to be reimbursed for the payments by the claimant.

         While Liberty's initiating document is designated an "appeal", the matter is considered de novo. Smith v. State Compensation Ins. Fund, 2000 MTWCC 9, ¶ 22.

         ¶2 It is undisputed that claimant was injured on November 8 and 23, 1999; Liberty accepted liability for the claims for compensation; and Liberty paid temporary total benefits for a time, terminating those benefits following an independent medical examination by Dr. Dana Headapohl.

         ¶3 An initial telephonic hearing was held on July 26, 2000. At that time the parties submitted reports of Dana Headapohl, M.D., H. Brett Heath, M.D., and Gilbert J. Roberts, D.C. Based on the medical reports, I found insufficient evidence to order either interim temporary total or permanent partial disability benefits. The minute entry for the hearing, which I drafted, sets forth my reasoning:

[A]fter reviewing the reports of Dr. Dana Headapohl, Dr. H. Brett Heath, and Dr. Gilbert J. Roberts, there is insufficient evidence to order 610 temporary total disability (TTD) benefits or permanent partial disability (PPD) benefits. Reinstatement of TTD benefits requires some evidence that claimant has not reached maximum medical improvement (MMI). Only Dr. Headaphol [sic] addressed MMI, finding that claimant has reached MMI. Reinstatement of PPD benefits requires some evidence not only of claimant's inability to return to his time-of-injury job and a resulting wage loss, but an impairment. While there is substantial evidence indicating claimant cannot return to his time-of-injury job, and that he has been unable to find other employment despite trying, thus providing some evidence of a wage loss, Dr. Headapohl found no impairment and the other physicians did not address the matter.

         My ruling at that time, however, was not final. Mr. Thompson indicated he was seeking additional medical information from Dr. Henry H. Gary, a neurosurgeon. I therefore deferred final decision and provided claimant an opportunity for a further hearing, indicating that the hearing could be in person in Helena or by telephone, at the parties' option.

         ¶4 Thereafter, claimant submitted additional medical documentation and on August 24, 2000, the Court held a second telephonic hearing. Claimant, who was in Washington State, and Liberty agreed to proceed via telephone. The discussion which follows is based on information and documentation provided at both hearings. A list of the medical records is set out in the Appendix to this Order.

         ¶5 Claimant is 49 years old and, according to Dr. Headapohl's report, has worked construction most of his life. He suffered a neck injury in 1987 and underwent a C6-7 discectomy and fusion in 1987. He worked for Alpine Log Homes, which is Liberty's insured, for two and a half years prior to the industrial accidents at issue in this proceeding.

         ¶6 Claimant was involved in two work-related accidents in November 1999. According to Dr. Headapohl's report, on November 9, 1999 he strained the muscles of his left low back while rolling a log, then on November 23, 1999, he fell from scaffolding, "striking his right leg on a cross bar kind of rolling on his right shoulder and landing on his head with a hard hat on . . . ." (IME at 1-2.) Following his accidents, claimant suffered pain in his thigh, neck, and numbness in his hands. He has been diagnosed as suffering from carpal tunnel syndrome, which Dr. Ethan Russo, who ...


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