JOHN T. RICE Petitioner
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer.
Submitted: October 22, 2004
Petitioner Thomas J. Lynaugh Attorney at Law
Respondent Larry W. Jones Attorney at Law
DECISION AND JUDGMENT
claimant injured his neck and head in a 1996 motorcycle
accident and underwent a diskectomy and fusion at the C4-5
level, however, he thereafter returned to work and worked
successfully over a four-year period until he was thrown
about the cab of his truck when a large boulder struck the
truck. The incident was work related. The claimant thereafter
experienced significant neck and arm pain, as well as
headaches. A neurosurgeon diagnosed a C5-6 level herniated
disk and performed a diskectomy and fusion at that level.
Based on independent medical examination (IME) opinions,
however, the insurer denied liability for the surgery,
medical care, and indemnity benefits.
opinions of the treating neurosurgeon are more persuasive in
light of his greater expertise regarding the condition at
issue, his continuing treatment of the claimant over the
years, the fact that the claimant plainly suffered a
significant increase of symptoms following the 2003
work-related incident, and the fact that the surgery resulted
in a significant improvement of his symptoms. Dr. Ross'
testimony that claimant's symptoms were anatomically
inconsistent with a herniated cervical disk was unconvincing
where the neurosurgeon plainly felt they were not.
Attorney Fees: Reasonableness of Insurers.
The Workers' Compensation Court has indicated in past
decisions that an insurer is entitled to rely on the opinion
of an independent medical examiner. While the statement is
generally true, the prior decisions should not be read as
indicating that an insurer acts reasonably in every case in
which a denial of liability is based on an IME opinion. The
insurer has a duty to consider all facts and circumstances in
determining liability. Other facts and circumstances may
indicate that it cannot reasonably rely on an IME opinion.
Penalties: Insurers. The Workers'
Compensation Court has indicated in past decisions that an
insurer is entitled to rely on the opinion of an independent
medical examiner. While the statement is generally true, the
prior decisions should not be read as indicating that an
insurer acts reasonably in every case in which a denial of
liability is based on an IME opinion. The insurer has a duty
to consider all facts and circumstances in determining
liability. Other facts and circumstances may indicate that it
cannot reasonably rely on an IME opinion.
Proof: Conflicting Evidence: Medical.
Treating physician's opinions are more persuasive where
he has more expertise in the area of medicine under
consideration, where the opinions are more consistent with
the claimant's history, and where the treatment
prescribed by the treating physician is consistent with his
opinions and in fact materially improves the claimant's
The trial in this matter was held on October 22, 2004, in
Billings, Montana. Petitioner, John T. Rice (claimant), was
present and represented by Mr. Thomas J. Lynaugh. Respondent
was represented by Mr. Larry W. Jones. Exhibits 1 through 3,
5, 7 through 10, and 12 were admitted without objections.
Exhibits 4, 6, 11, and 13 were admitted over objections. The
claimant, Debra Rice, Dr. Scott Ross, and Gary Schild were
sworn and testified. In addition, the Court considered the
depositions of the claimant, Dr. Robert C. Wood, Dr. Scott K.
Ross, and Gary Schild.
After considering the trial testimony, exhibits, and
depositions, the Court bench ruled in favor of the claimant,
holding that he suffered an industrial injury to his neck on
April 1, 2003, and that the injury and his subsequent medical
treatment, including neck surgery, were causally connected to
his industrial injury. Therefore, I ruled that Liberty
Northwest Insurance Corporation (Liberty) is liable for
indemnity benefits, which it has been paying under a
reservation of rights, and for the claimant's post-injury
medical expenses related to his neck and surgery. The
rationale for my decision was delivered orally. The parties
agreed that a transcript of the Court's oral decision may
constitute its findings of fact and conclusions of law. A
copy of the transcript is therefore attached.
While the transcript of my bench ruling is attached, some
factual background information is necessary to understand my
ruling. The important facts are as follows:
The claimant is a heavy equipment operator for the Decker
Coal Company at its Decker, Montana, mine. He has worked for
Decker for thirty years.
The claimant was involved in a motorcycle accident in June
1996 when he hit a deer. He suffered neck, head, and other
Following the1996 motorcycle accident, the claimant was off
work for approximately one year. He returned to work in June
1997, but in September 1998 began experiencing severe neck
and arm pain attributable to his 1996 accident. He was
diagnosed with a herniated cervical disk at the C5-C6 level.
Dr. Robert Wood, a neurosurgeon, operated, doing a diskectomy
and fusion at the C5-C6.
After the claimant recovered from the surgery, Dr. Wood asked
Dr. Scott Ross, who specializes in occupational medicine, to
evaluate the claimant with respect to a return to work. Dr.
Ross saw the claimant in February of 1999 and approved
claimant's return to work as an equipment operator
The claimant returned to work in 1999 but again sought
medical advice from Dr. Robert Schultz in 2001 on account of
left arm pain. At the time, the claimant's primary job
was driving a dozer, which involved extensive use of his left
arm in an outstretched position. His difficulty was felt to
be positional and related to his dozer operation. Upon Dr.
Schultz's advice, the claimant arranged with his employer
to operate the dozer only occasionally, and even then to
cease doing dozer work if his arm started to hurt.
The limitation of his dozer work alleviated his arm pain and
he did not thereafter seek medical care until April 2, 2003,
after an April 1, 2003 work-related incident where the truck
he was driving was hit by a large boulder and he was thrown
about the cab of the truck, hitting his head. Following that
event, the claimant experienced extreme neck and arm pain, as
well as increased headaches.
Dr. Wood, the neurosurgeon, resumed the claimant's care.
He ultimately ordered a CT myleogram which disclosed a disk
protrusion at the C6-C7 level. He thereafter performed a
diskectomy and fusion at that level. The claimant's pain
improved significantly following the surgery.
Liberty denied liability for the surgery on the ground that
the surgery was unrelated to the April 1, 2003 incident. The
denial was largely based on the opinion of Dr. Ross, who
evaluated the claimant prior to the surgery. Dr. Ross
evaluated the claimant on referral by Dr. Wood, however, Dr.
Wood made the referral at the express ...