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Nielson v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 20, 2000

LOUIS NIELSON Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for TNT WELL SERVICING, INCORPORATED Employer.

          Submitted: May 10, 2000

          REVERSED AND REMANDED 4/23/03

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary of Case: During April 1995, claimant sought treatment for numbness, tingling, and pain in both arms, but primarily in his left arm. He ceased working in May 1995. Claimant's right arm condition was accepted by State Fund as an injury under the Workers' Compensation Act (WCA), but his left arm condition was accepted as an occupational disease. In Nielson v. State Compensation Ins. Fund, 1999 MTWCC 49, this claimant sought permanent total disability benefits, which were denied. He now seeks permanent partial disability benefits on the basis of the record presented in the prior case. He alleges the debilitating pain in both arms prevents his return to his time-of-injury job (servicing oil wells) or other positions involving heavy physical demands.

         Held: Because permanent partial disability benefits are not available under the Occupational Disease Act (§ 39-72-703, MCA), the relevant inquiry is whether claimant is permanently partially disabled from his right arm condition which State Fund did accept as an injury under WCA. His claim is governed by the 1993 version of the WCA, which defines permanent partial disability as a condition, after MMI, in which a worker (a) has a medically determined physical restriction as the result of an injury which (b) impairs his ability to work. Claimant did not prove he has a medically determined physical restriction impairing work. Having found claimant's subjective reports of pain not credible, the Court finds expert opinions supporting claimant's case unpersuasive since they rely upon claimant's subjective claims. The Court credits other medical providers who found claimant's reports of disability exaggerated and without objective basis and who did not place any physical restrictions on claimant.

         Topics:

Benefits: Permanent Partial Benefits: Generally. Where claimant sought PPD benefits on the basis of disability in both arms, but only the right arm condition was accepted as an injury by the insurer, the relevant inquiry was whether claimant was permanently partially disabled due to his right arm condition. Because PPD benefits are not available under the Occupational Disease Act (§39-72-703, MCA), claimant's left arm condition, accepted by the insurer as an occupational disease, could not give rise to a claim for PPD benefits on the record presented.
Benefits: Permanent Partial Benefits: Generally. Under the 1993 version of the WCA, PPD claimant failed to prove that, after MMI, he had a medically determined physical restriction as the result of an injury which impaired his ability to work (§39-71-116(19), MCA). Having found claimant's subjective reports of pain not credible, the Court was not persuaded by expert opinions relying on those subjective reports, but credited other experts finding claimant's reports of disability without objective basis and refusing to place physical restrictions on claimant.
Disability: Permanent Partial. Under the 1993 version of the WCA, PPD claimant failed to prove that, after MMI, he had a medically determined physical restriction as the result of an injury which impaired his ability to work (§39-71-116(19), MCA). Having found claimant's subjective reports of pain not credible, the Court was not persuaded by expert opinions relying on those subjective reports, but credited other experts finding claimant's reports of disability without objective basis and refusing to place physical restrictions on claimant.
Impairment: Generally. Under the 1993 version of the WCA, PPD claimant failed to prove that, after MMI, he had a medically determined physical restriction as the result of an injury which impaired his ability to work (§39-71-116(19), MCA). Having found claimant's subjective reports of pain not credible, the Court was not persuaded by expert opinions relying on those subjective reports, but credited other experts finding claimant's reports of disability without objective basis and refusing to place physical restrictions on claimant.
Medical Conditions (by specific condition): Carpel Tunnel Syndrome. Particular tests used by one physician as providing evidence of carpel tunnel syndrome questioned by other medical providers as not based on valid methodology and not found persuasive by Court regarding alleged permanent partial disability.
Medical Evidence: Functional Capacity Evaluations. Court not persuaded by conclusions of Functional Capacity Evaluation where record suggested symptom magnification by claimant during testing and failure of claimant to participate in work conditioning program associated with FCE.
Witnesses: Credibility. Having found claimant's subjective reports of pain not credible, Court found expert opinions relying on claimant's subjective reports not persuasive.

         ¶1 This matter is before the Court on a stipulated record based on proceedings in Louis Nielson v. State Compensation Ins. Fund, 1999 MTWCC 49, WCC No. 9902-8158. In that case, petitioner Louis Nielson (claimant) sought permanent total disability benefits. His request was denied. In the present case, claimant seeks permanent partial disability benefits on the basis of the same record presented in the prior case. The parties have not presented new or additional evidence.

         ¶2 I incorporate the prior decision, a copy of which is attached, and make the following additional findings of fact and conclusions of law.

         Additional Findings of Fact

         ¶3 As set forth in the conclusions of law which follow, to prove permanent partial disability the claimant must show he has "a medically determined physical restriction as a result of an injury" and that the restriction impairs his ability to work. Since there is no provision under the Occupational Disease Act (ODA) for permanent partial disability benefits, and claimant's left arm complaints were accepted as an occupational disease, any physical restriction and impaired ability to work must arise, if at all, from claimant's right arm condition.

         ¶4 In my prior decision I analyzed the persuasiveness of the medical and vocational opinions, along with claimant's credibility. I reaffirm that analysis.

         ¶5 As I found previously, claimant was not a credible witness. I am persuaded he has exaggerated his pain in his testimony and in his reports to the physicians and other medical professionals who have examined or treated him.

         ¶6 In determining whether claimant suffers a "medically determined physical restriction," I initially note a lack of persuasive objective medical evidence verifying physical restrictions of claimant's use of either of his arms impairing his ability to work. Objective medical evidence relating to the right arm is particularly lacking. The following is significant:

a. The initial medical record of Dr. Lofti Ben-Youssef states:
The patient is a 45 year old hot oil truck driver, who has been complaining of three weeks history of sudden onset of numbness of the left hand, radiating upward to the posterior medial aspect of the left elbow, present during the day and at night, to the point where the patient now cannot trust his left. The patient states that the only way he could sleep at night is with his hand overhead and he has to sleep on his back, which is something he hasn't been used to. The patient is worried because the same problem is starting on the right hand after he pulled on a hot oil hose.
(Ex. 9 at 9, emphasis added.) At this point claimant's primary complaint was with his left hand. (Id.)
b. Dr. Williams, who examined claimant and did nerve conduction studies in 1995, wrote that "no abnormalities were found on neurophysiological testing." (Ex. 13 at 2.)
c. While Dr. Ben-Youssef initially diagnosed bilateral cubital tunnel syndrome, his focus in July 1995, was overuse syndrome of the left wrist and forearm. (Ex. 19 at 3; Ex. 9 at 10.)
d. In 1995, Dr. Settergren diagnosed "left lateral epicondylitis and some signs and symptoms of cubital tunnel syndrome." (Ex. 16. at 2.)
e. During 1997, Dr. Bill Rosen could not find support for any particular diagnosis other than right extensor pollicis tendonitis and possible chronic pain syndrome. (Ex. 10 at 6-7.)
f. Electrodiagnostic studies conducted of claimant by Dr. Donald H. See during 1997 were normal. (Ex. 12 at 1-2.)
g. Electrodiagnostic studies of claimant during 1998, by Dr. Patrick Cahill, a neurologist, were also normal. (Ex. 14 at 8.) While Dr. Cahill suggested "possible mild bilateral medial epicondylitis," (id. at 9, emphasis added) Dr. Ross testified he did not find support even for a diagnosis of epicondylitis. ...

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