Submitted: October 18, 2000
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
of Case: Claimant allegedly injured his neck, left arm,
and head in a fall from a ladder which was attached to a
large milk tank. The insurer initially accepted liability and
paid medical and temporary total disability benefits. It
ceased paying TTD benefits when claimant dropped out of a
work-hardening program after one day and an IME physician
reported him at MMI. The Department and the Court then
entered an order requiring the insurer to pay 49 days of
benefits pursuant to section 39-71-610, MCA. Meanwhile, the
insurer alleged that the claim was fraudulent in that the
accident was staged.
Claimant is not credible and has a long history of what he
claims to be debilitating headaches. At the time of the
alleged accident he had been fired by a previous employer a
month previous, allegedly on account of loss of work due to
headaches, and was actively attempting to get a prescription
for narcotic drugs from his physician. He had also been told
that his employment at the dairy was not likely to last. He
has a previous history of drug abuse, and following the
alleged accident obtained additional narcotic and barbiturate
drugs by telling his physician that one narcotic was not
working, that his drugs had been stolen or flushed down the
toilet, that the pharmacy never filled his prescription, and
other similar stories. Coworkers' testimony about
conversations with claimant on the day of the alleged
accident, as well as the accident scene itself, raise
significant questions as to whether the accident in fact
occurred. Except for a superficial cut on his hand, there was
no objective evidence of any injury. The Court finds that the
accident did not occur and further finds that even if it did
happen, he reached MMI by the time his benefits were cut off.
Recommendations by the treating physician of further physical
therapy are unpersuasive as claimant's medical records
demonstrate he has been non-compliant in previous PT
attempts. Other recommendations for treatment are either
refuted by the IME doctor, who testified, or have been tried
and provided little relief.
Benefits: Interim Benefits. Claimant must
repay interim temporary total disability benefits awarded
under section 39-71-610, MCA (1999), where the Court finds
that the insurer properly terminated TTD benefits and that he
is not entitled to them.
Fraud. Claimant's lack of credibility,
his drug-seeking behavior, his attempts to obtain narcotics
from a physician four days prior to his alleged industrial
accident, his knowledge that he was unlikely to keep his
current job, his recent history of allegedly debilitating
headaches which he claimed got him fired a month and a half
previously from a previous job, his odd statements to his
coworkers, the incongruity between the manner in which he
claimed the accident occurred and the physical layout of the
place of the accident, his subsequent drug seeking behavior,
and his documented lies persuade the Court that the claimed
industrial accident was staged and was fraudulent.
Montana Code Annotated: 39-71-610 (1999).
Claimant must repay interim temporary total disability
benefits awarded under section 39-71-610, MCA (1999), where
the Court finds that the insurer properly terminated TTD
benefits and that he is not entitled to them.
Maximum Medical Improvement. Where
claimant's symptoms are subjective and where he has a
history of non-compliance with respect to recommended
treatment, or the treatment has been previously attempted and
was unsuccessful, there is no reasonable prospect for
further, material improvement in his condition, and he has
Proof: Conflicting Evidence: Medical.
Treating physician's opinions are given less weight where
the treating physician chose to believe claimant's
patently questionable stories about his need for further
narcotics, especially where the physician could have readily
checked the stories with claimant's wife but failed to do
so. The physician's trust in his patient was unwarranted
and showed a lack of objectivity.
Proof: Conflicting Evidence: Medical.
Medical opinions which are based on subjective symptoms
reported by a claimant who is not credible are not
Witnesses: Credibility: Drug Abuse.
Claimant's lack of credibility, his drug-seeking
behavior, his attempts to obtain narcotics from a physician
four days prior to his alleged industrial accident, his
knowledge that he was unlikely to keep his current job, his
recent history of allegedly debilitating headaches which he
claimed got him fired a month and a half previously from a
previous job, his odd statements to his coworkers, the
incongruity between the manner in which he claimed the
accident occurred and the physical layout of the place of the
accident, his subsequent drug-seeking behavior, and his
documented lies persuade the Court that the claimed
industrial accident was staged and was fraudulent.
The trial in this matter was held on September 6, 2000, in
Bozeman, Montana. Petitioner, Aubrey Schneider, (claimant),
was present and represented by Mr. Geoffrey C. Angel.
Respondent, Liberty Northwest Insurance Corporation
(Liberty), was represented by Mr. Larry W. Jones. A trial
transcript has not been prepared.
Exhibits: Exhibits 1 through 3, 5, and 15 were admitted
without objection. Pages 156 and 157 of Exhibit 1 are missing
in the exhibit notebook, however the intended pages are found
in Exhibit 1 to Dr. Ross' deposition. Exhibit 4 was
withdrawn. Exhibit 6 was admitted for impeachment purposes
only and over Mr. Angel's confidentiality objection.
Exhibits 9 (page 1, lines 22-26, page 2, lines 1and 2) and 14
(page 6, lines 8 through 23 only) were admitted over
objections but were admitted only for impeachment purposes.
Exhibits 7, 8, and 10 through 13 were refused. Proposed
Exhibit 16, which was to be prepared by Mr. Angel, was never
Mr. Angel objected to respondent's contentions in the
Final Pretrial Order which concern prior criminal convictions
and bad acts. The Court will disregard those contentions in
accordance with its ruling on the motion in limine.
Witnesses and Depositions: The parties agreed that the
depositions of Scott K. Ross, M.D., Robert A. Jackson, M.D.,
and Aubrey Schneider of May 10, 2000, (Schneider Dep. I, )
and June 13, 2000, (Schneider Dep. II, ) shall be considered
by the Court. Claimant, Merle Joseph Ferrier and Scott
VanDyke were sworn and testified.
Issues Presented: The issues, as stated in the Final Pretrial
Order, are as follows:
1.Whether Gene Schneider suffered an industrial accident on
March 14, 1999?
2.Whether Gene Schneider reached MMI on September 21, 2000
3.Whether Gene Schneider should repay the Section 610
benefits Liberty Northwest paid pursuant to this Court's
4.Whether Liberty Northwest should pay the costs and
attorney's fees incurred by Gene Schneider in pursuing
5.Whether Liberty Northwest's refusal to pay medical and
wage loss benefits was unreasonable?
Having considered the Final Pretrial Order, the testimony
presented at trial, the demeanor and credibility of the
witnesses, the depositions, the exhibits, and the arguments
of the parties, the Court makes the following:
At the time of trial, claimant was 43 years old. In the 25
years since graduating from high school he has worked in a
number of jobs, including work in the oil fields and on power
lines, farming, and guitar manufacturing.
Over the years, claimant has suffered a number of injuries,
including numerous work-related injuries, nine of which are
documented. He has undergone back and neck surgeries. The
latest surgery was 1996, when he underwent a C6-7 anterior
cervical diskectomy and fusion. (Ex. 1 at 181.)
History and Preexisting Medical Conditions
I begin these findings of fact with an overview of the
claimant's prior medical history and preexisting medical
conditions. The overview is limited to claimant's back,
neck, and headaches. The overview is important in evaluating
claimant's complaints following his alleged injury and in
evaluating his credibility.
In 1989 claimant was injured in an automobile accident and
underwent a diskectomy, apparently at the lumbar level, which
left him with a 10% impairment rating. (Ross Dep. Ex. 3 at
On September 27, 1995, claimant injured his neck and upper
shoulder girdle when attempting to lift a heavy steel cabinet
while working for Gibson Guitar. (Ex. 1 at 58, 64, 110.) He
subsequently returned to work with no restrictions (id. at
55), however, he re-injured himself on February 19, 1996,
while moving a fully-loaded guitar rack (Id. at 64,
111). An MRI of the cervical spine was remarkable for a C6-7
protrusion. (Id. at 110.) After a protracted course
of physical therapy and multiple medications, including
narcotic analgesics, in May 1996 he underwent a C6-7 anterior
cervical diskectomy with fusion and a decompression of the
left C7 nerve root. (Id. at 110, 181.) He was
subsequently found to also have a stress fracture of the
spinous process of C7. (Id. at 181.)
Although he continued to have residual chronic headaches, Dr.
Robert Jackson, who is claimant's family physician,
placed claimant at maximum medical improvement (MMI) as of
February 12, 1997. (Id. at 130, 182.) On March 10,
1997, Dr. Eugene J. Dolan, the neurosurgeon who operated on
claimant, placed him at MMI in relation to his neck injury
and restricted him to intermittent lifting of 20-40 pounds.
(Id. at 177-78.) Dr. John Vallin, a physiatrist,
conducted an independent medical examination (IME) on
November 12, 1996, and placed him at MMI at that time.
(Id. at 110-11.) Dr. Vallin rated claimant with a 5%
whole person impairment pertaining to his cervical disk
fusion and subsequent diskectomy and a 5% whole person
impairment regarding his upper extremities. (Id.
110-12.) On March 10, 1997, Dr. Thomas L. Schumann evaluated
claimant at Dr. Dolan's request and assigned him a 15%
whole person impairment per the AMA guides. (Id. at
After recovering from his 1997 cervical diskectomy and
fusion, claimant continued to experience severe headaches.
Dr. Jackson testified that the history of headaches went back
to at least 1994. (Jackson Dep. at 6.)
Dr. Jackson's record documents severe headaches during
the six months preceding the alleged accident at issue in
• On September 11, 1998, claimant reported
"continuing to have pounding headaches on the right side
of the head. They start at the neck posteriorly and then
radiate forward to the orbit." (Ex. 1 at 28.)
• On September 23, 1998, claimant called Dr. Jackson and
reported he had a "persistent headache now for three or
four days." (Id. at 27.)
• On December 23, 1998, claimant reported his headaches
were "about the same." (Id.)
• On January 16, 1999, claimant reported "he's
had a headache for several days." He requested a
prescription for Tylenol #4. (Id. at 26.)
• On January 28, 1999, a month and a half prior to the
claimant's alleged accident at issue in this case, Dr.
Jackson wrote, "Patient has a long history of headaches
which have been resistant to medication. He has had neck
surgery, a neck fracture, and injury to a nerve from the neck
which causes his headaches. His prognosis is poor to ever be
100% free of headaches." (Ex. 1 at 143.) Dr. Jackson
contemplated referring claimant "to a pain specialist
for further evaluation." (Id.) Dr. Jackson
noted that claimant's diagnoses of occipital cervical
neuralgia and muscle tension was originally made by Dr. Joav
Kofman, a neurologist with the Billings Clinic, on May 19,
1997. (Jackson Dep. at 7.) He explained that "occipital
neuralgias" indicated that claimant has probable
traction on occipital nerves which can cause pain, as well as
trigger headaches. (Id. at 6-7.)
• On February 1, 1999, Dr. Jackson made the following
Patient reports that he was fired from his job because of his
headaches and the fact that he missed three days of work. . .
. His pain had been getting slowly worse, and he was seeking
Tylenol #4 on several occasions . . . . There's some
tenderness in the posterior neck and it feels that
there's something "loose" in there. He's
having headaches now in the same area as before as well, from
the right vertex to the right orbit. . . .
(Id. at 26.)
• On February 8, 1999, Dr. Jackson recorded no change in
the headaches. (Id. at 25.)
• On March 10, 1999, four days prior to the alleged
injury, claimant called Dr. Jackson and requested Tylenol #4.
Dr. Jackson refused the request, noting that claimant should
"stick to one type of pain med." (Id.) At
that time, claimant was taking Darvocet-N 100 (id.), which is
a combination of a narcotic analgesic and Tylenol, which is a
non-narcotic analgesic. Physicians Desk Reference at 1254
(1992 Ed.). Then on March 12, 1999, claimant obtained a
prescription for Fioricet, which is a barbiturate with
A review of claimant's medical records shows he has a
history of drug addiction and alcoholism. (Ross Dep. at 13;
Ex. 1. at 181 -82, 184, 193; Ex. 2 at 1.)
of the Present Claim
On or about March 9, 1999, claimant went to work as a
probationary employee at Bos Top Dairy ("Bos"),
which is a dairy farm.
Claimant alleges that on March 14, 1999, while working at
Bos, he fell off a ladder attached to a milk tank and injured
his neck, shoulder, back, and left hand. His primary
complaints since the alleged accident are severe headaches
and pain in his neck, shoulders, arm, and back.
At the time of the alleged accident, Bos was insured by
Liberty, which accepted liability for the claim. Liberty
thereafter paid temporary total and medical benefits.
In July of 1999, Liberty referred claimant to Dr. Scott Ross,
a physician specializing in occupational medicine. Dr. Ross
prescribed a work-hardening program. Claimant began the
program on September 20, 1999, but after one day of the
program he declined to continue. Dr. Ross then found him at
MMI. Based on that finding, on December 22, 1999, Liberty
terminated claimant's temporary total disability (TTD)
Claimant did not return to work at Bos. He did not become
employed again until three or four weeks prior to trial, when
he took a job with Metra RV in Billings. He works at Metra RV
25 to 30 hours a week.
This action followed the December 22, 1999 cutoff of
benefits. The petition, docketed March 3, 2000, seeks payment
of further compensation and medical benefits.
Shortly after the filing of the petition, Liberty appealed a
decision of the Department of Labor and Industry (Department)
ordering it to pay claimant 49 days of TTD benefits under
section 39-71-610, MCA (§ 610). That appeal was made a
part of this action. Initially, the Court ruled in
Liberty's favor, however, upon reconsideration and after
receipt of a further medical report supporting claimant's
allegation that he has not reached MMI, the Court affirmed
the Department's decision and ordered Liberty to pay the
section 610 benefits. (Further Order Regarding Section
39-71-610, MCA, Benefits (June 7, 2000).)
Liberty contends that claimant has reached MMI and is not
entitled to further benefits. While not raised in its initial
Response To Petition For Hearing, in subsequent notices
regarding its contentions in this case, Liberty alleged that
the claim in this case ...