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Schneider v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

April 20, 2001

AUBREY SCHNEIDER Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for JOEL BOS, d/b/a BOS TOP DAIRY Employer.

          Submitted: October 18, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER, JUDGE

         Summary 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.

         Held: 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.

         Topics:

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 reached MMI.
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 persuasive.
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.

         ¶1 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.

         ¶2 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 submitted.

         ¶3 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.

         ¶4 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.

         ¶5 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 [sic]?
3.Whether Gene Schneider should repay the Section 610 benefits Liberty Northwest paid pursuant to this Court's order?
4.Whether Liberty Northwest should pay the costs and attorney's fees incurred by Gene Schneider in pursuing this Petition?
5.Whether Liberty Northwest's refusal to pay medical and wage loss benefits was unreasonable?

         ¶6 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:

         FINDINGS OF FACT

         Claimant

         ¶7 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.

         ¶8 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.)

         Medical History and Preexisting Medical Conditions

         ¶9 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.

         ¶10 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 2.)

         ¶11 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.)

         ¶12 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 182.)

         ¶13 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.)

         ¶14 Dr. Jackson's record documents severe headaches during the six months preceding the alleged accident at issue in this case.

• 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 note:
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 acetaminophen.

         ¶15 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.)

         History of the Present Claim

         ¶16 On or about March 9, 1999, claimant went to work as a probationary employee at Bos Top Dairy ("Bos"), which is a dairy farm.

         ¶17 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.

         ¶18 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.

         ¶19 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) benefits.

         ¶20 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 Proceeding

         ¶21 This action followed the December 22, 1999 cutoff of benefits. The petition, docketed March 3, 2000, seeks payment of further compensation and medical benefits.

         ¶22 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).)

         ¶23 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 ...


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