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Beyl v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

December 21, 2000

DALE J. BEYL Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for M & C BEVERAGE, INCORPORATED Employer.

          Submitted: October 23, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER, JUDGE.

         Case Summary: Claimant injured his elbow at work and was thereafter diagnosed as suffering from epicondylitis, which is an inflammation of bony or soft tissues in the elbow. Dr. Scott Ross, an occupational physician designated by the insurer to perform an IME, as well as the claimant's treating physician at that time, determined him to be at MMI without any impairment and released him to return to his time-of-injury job. Claimant found other temporary work but experienced continuing elbow pain. After his last job, he filed an occupational disease claim and was examined by Dr. Dean Sukin, an orthopedic surgeon designated by the Department of Labor and Industry. Dr. Sukin found that claimant needs surgery, is not at MMI, and unless surgery is performed cannot return to this time-of-injury job. However, Dr. Sukin is unwilling to do the surgery since he believes it would be a conflict of interest to serve as an IME evaluator and then become the claimant's treating physician. In any event, none of claimant's physicians on record have agreed to do the surgery

         Held: Dr. Sukin's opinions were persuasive in light of his independence from both claimant and insurer, his specific medical expertise, his reasoned opinions, and the claimant's efforts to return to gainful employment. Claimant is therefore determined not to have reached MMI and is granted a reasonable time to seek surgery from an orthopedic surgeon who previously treated him or find a new surgeon who is willing to perform the surgery. He is entitled to retroactive TTD benefits, except for periods he was working, and to future benefits until he recovers from surgery or until a reasonable time for finding a willing surgeon expires. He is not entitled to permanent partial or rehabilitation benefits since he has no impairment rating.

         Topics:

Medical Conditions: Epicondylitis. Medical evidence that claimant continues to suffer from epicondylitis is persuasive.
Proof: Conflicting Evidence/Medical. Testimony of an independent orthopedic surgeon that claimant continues to suffer from epicondylitis of his elbow and needs surgery is more persuasive than other medical evidence, including that of a physician specializing in occupational medicine, since (1) the surgeon has specific expertise in treatment of the condition under consideration; (2) the surgeon performed a truly independent medical evaluation, having been designated by the Montana Department of Labor and Industry to evaluate claimant for an occupational disease; (3) the surgeon was unwilling to compromise his independence by performing surgery and taking on the role of claimant's treating physician; (4) the claimant's continuing symptoms were validated by another orthopedic surgeon; and (5) the claimant attempted to return to gainful employment and, in fact, has attempted to work since his injury.
Remedies. Where a claimant presents persuasive evidence from an independent medical examiner that he needs surgery, but the IME physician is unwilling to do the surgery because he believes it would be a conflict of interest to assume the role of claimant's treating physician, and where no other physician has agreed to do the surgery, claimant shall have a reasonable, but not open-ended, time to find a surgeon willing to do the surgery.
Benefits: Temporary Total Benefits. Where a claimant needs surgery for a work-related injury, he or she is still temporarily totally disabled and has not reached maximum medical improvement. Such claimant is entitled to temporary total disability benefits during periods of unemployment until recovery from surgery or for a reasonable period of time in which to undergo surgery.
Evidence: Expert Testimony: Physicians. Some deference may be given to a specialist whose specialty encompasses treatment of the claimant's specific condition.
Terms: Maximum Medical Improvement. A claimant who needs surgery has not reached maximum medical improvement where he is willing to undergo the surgery.
Benefits: Medical Benefits: Surgery. Where persuasive medical evidence demonstrates that claimant's condition will be improved by surgery, the insurer must pay for the surgery.
Benefits: Permanent Partial Benefits. Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to permanent partial disability benefits.
Montana Code: 39-71-703 (1997). Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to permanent partial disability benefits.
Benefits: Rehabilitation Benefits. Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to rehabilitation benefits.
Montana Code: 39-71-1006 (1997). Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to rehabilitation benefits.
Impairment: Impairment Ratings. Section 39-71-711 defines permanent impairment under the Workers' Compensation Act and must be followed in determining whether a worker is a disabled worker within the meaning of rehabilitation provisions, § 39-71-1011 (2) (1997).
Montana Code: 39-71-711 (1997). Section 39-71-711 defines permanent impairment under the Workers' Compensation Act and must be followed in determining whether a worker is a disabled worker within the meaning of rehabilitation provisions, § 39-71-1011 (2) (1997).
Montana Code: 39-71-1011(2) (1997). Section 39-71-711 defines permanent impairment under the Workers' Compensation Act and must be followed in determining whether a worker is a disabled worker within the meaning of rehabilitation provisions, § 39-71-1011 (2) (1997).

         ¶1 This matter is submitted upon depositions of Jackie Anderson, James Armstrong, Scott K. Ross, M.D., Jim Kimmell, Rhonda Shumway (two depositions -- Shumway Dep. I taken on April 14, 2000, and Shumway Dep. II taken on June 27, 2000), Dean Sukin, MD., the claimant, and in addition 25 exhibits.

         ¶2 Claimant was injured August 12, 1998, and his claim was accepted. At issue here is whether he is entitled to further benefits. The issues, as stated in the Pre-trial Order, are as follows:

A. Whether the Claimant is entitled to past temporary total disability benefits (from the date of termination) pursuant to section 39-71-701, M.C.A.
B. Whether the Claimant is entitled to rehabilitation benefits pursuant to section 39-71-1006, M.C.A.
C. In the alternative to issue B., above, whether the Claimant is entitled to permanent partial disability benefits pursuant to section 39-71-703, M.C.A.
D. Whether the Claimant is entitled to further medical benefits, including an operation to his right elbow, pursuant to section 39-71-704, M.C.A.
Issue E, requesting attorney fees and a penalty, has been withdrawn.

         ¶3 Having considered the Pre-trial Order, the briefs filed by the parties, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         Claimant

         ¶4 Claimant is 31 years of age. (Ex. 6 at 2.) He graduated from high school. He was a C student. (Beyl Dep. at 21.)

         ¶5 Claimant has worked as a delivery merchandiser/route salesman, sanitation worker, grocery stocker, warehouse delivery person and manager, cashier/checker at a Cenex station, ditch rider, and farmer. (Ex. 16 at 15.)

         Industrial Injury

         ¶6 Claimant was employed as a delivery person by M & C Beverage, Incorporated (M & C) in Miles City, Montana, from October 1996 to August 12, 1998. (Ex. 16 at 47.) His job entailed the delivery of cases and kegs of beer.

         ¶7 On August 12, 1998, while working for M & C, claimant was lifting a case of beer and felt a snap in his right elbow. (Ex. 14 at 1.) He was unable to continue working and never returned to his time-of-injury job.

         Claim for Compensation and Acceptance

         ¶8 At the time of the injury, M & C was insured by Liberty Northwest Insurance Corporation (Liberty). Liberty accepted liability for the injury.

         Medical Treatment

         ¶9 On the same day as his injury, claimant was treated in the emergency room of the Holy Rosary Health Center in Miles City. He was diagnosed with cellulitis[1] of the right elbow and forearm and given antibiotics. (Ex. 16 at 52.)

         ¶10 The following day -- August 13, 1998 -- claimant was examined by Dr. J.R. Grierson, a general surgeon practicing in Miles City. Claimant still had swelling in his right elbow and was complaining of an inability to grip objects, as well as tingling in his fingers. (Id. at 58 and Ex. 5 at 1.) Dr. Grierson reported:

On examination there is a slight erythema measuring approximately 5 x 10 cm. around the lateral humeral epicondyle. There is point tenderness over the lateral humeral epicondyle. Feel this is a marked lateral epicondylitis with perhaps even a tear of the insertion of the supinators. Advised ice, tennis elbow band, sling, no work, Cataflam and recheck again in five days time.

(Ex. 16 at 59.)¶11 Claimant returned to Dr. Grierson for further evaluation on August 18, 1998. At that time he still had "considerable tenderness," but the redness and swelling were gone. (Id.) X-rays were taken but were normal. (Id.) This same date, Dr. Grierson provided a note for claimant to be off work until August 24, 1998. (Ex. 5 at 2.)

         ¶12 On August 25, 1998, claimant was seen by Dr. Daniel C. Brooke, an orthopedic surgeon. Dr. Brooke noted that claimant was "exquisitely tender over the lateral epicondylar ridge, over the insertion of the extensor wad" and "mildly tender over the elbow joint proper laterally." (Ex. 16 at 59.) He described the situation as "unusual" and suggested an MRI, as well as testing to rule out gout. (Id.)

         ¶13 An MRI was done on August 26, 1998, and read by Dr. Mark N. Irion, a radiologist. Dr. Irion noted a small bony irregularity off of the proximal aspect of the olecranon process, which he said "may be due to a remote injury." (Id. at 54.) He noted "[n]o other significant abnormality." (Id.)

         ¶14 Following the MRI, Dr. Brooke diagnosed traumatic lateral epicondylitis. (Ex. 1 at 8.) "Epicondylitis" is "inflammation of an epicondyle or of adjacent tissues." Merriam-Webster Medical Dictionary (1997), online at www.medscape.com. The "epicondyle" is "any of several prominences on the distal part of a long bone serving for the attachment of muscles and ligaments: a: one on the outer aspect of the distal part of the humerus or proximal to the lateral condyle of the femur -- called also lateral epicondyleb: a larger and more prominent one on the inner aspect of the distal part of the humerus or proximal to the medial condyle of the femur -- called also medial epicondyle." (Id.) ...


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