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Doubek v. CNA Insurance Co.

Court of Workers Compensation of Montana

November 10, 2004

RONALD DOUBEK Petitioner
v.
CNA INSURANCE COMPANY Respondent/Insurer.

          Submitted: July 13, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary:

         The claimant suffers from asbestosis related to his work at the W.R. Grace zonolite mine. He filed an occupational disease claim in 1990 and it was accepted by CNA, which insured W.R. Grace. In July 1999 claimant was hospitalized with heart-related problems. CNA has denied payment for his hospitalization and follow-up care on the ground that his condition and care were unrelated to his asbestosis.

         Held:

         The claimant's heart condition, July 1999 hospitalization, and his follow-up care were causally related to his asbestosis. CNA is liable for his medical expenses. Further, it is liable for attorney fees and a penalty since its denial of liability was unreasonable.

         Topics:

Causation: Medical Condition. A workers' compensation insurer is liable only for medical conditions which are caused by the claimant's industrial accident or occupational disease.
Proof: Conflicting Evidence: Medical. The treating physician's opinions are entitled to greater evidentiary weight than the opinions of a non-treating physician, at least where all other factors are equal.
Proof: Conflicting Evidence: Medical. Where the treating physician has greater expertise in the treatment of the medical condition at issue than other physicians rendering opinions in the case, the treating physician's opinions are entitled to even greater deference than required under the treating physician rule.
Penalties: Insurers. While conflicting medical opinions ordinarily raise issues of fact which are appropriately submitted to the Workers' Compensation Court for resolution, the fact that the insurer has obtained an IME opinion supporting its denial does not preclude a finding that its denial was unreasonable. An insurer must fairly and reasonably evaluate all facts and opinions with respect to medical issues.
Penalties: Insurers. An insurer acts unreasonably and is liable for a penalty, § 39-71-
2907, MCA (1989), with respect to denied medical benefits where the treating physician finds a causal relationship between the medical condition treated and the industrial injury or occupational disease and where the physician expressing a contrary opinion was hired by the insurer, was provided with only selected records regarding the claimant's treatment, is less qualified than the treating physician, and relies on a medical test of questionable quality and value.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2907, MCA (1989). An insurer acts unreasonably and is liable for a penalty, § 39-71-2907, MCA (1989), with respect to denied medical benefits where the treating physician finds a causal relationship between the medical condition treated and the industrial injury or occupational disease and where the physician expressing a contrary opinion was hired by the insurer, was provided with only selected records regarding the claimant's treatment, is less qualified than the treating physician, and relies on a medical test of questionable quality and value.
Attorney Fees: Medical Benefits. An insurer acts unreasonably and is liable for attorney fees pursuant to § 39-71-612, MCA (1989), with respect to denied medical benefits where the treating physician finds a causal relationship between the medical condition treated and the industrial injury or occupational disease and where the physician expressing a contrary opinion was hired by the insurer, was provided with only selected records regarding the claimant's treatment, is less qualified than the treating physician, and relies on a medical test of questionable quality and value.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-612, MCA (1989). An insurer acts unreasonably and is liable for attorney fees pursuant to § 39-71-612, MCA (1989), with respect to denied medical benefits where the treating physician finds a causal relationship between the medical condition treated and the industrial injury or occupational disease and where the physician expressing a contrary opinion was hired by the insurer, was provided with only selected records regarding the claimant's treatment, is less qualified than the treating physician, and relies on a medical test of questionable quality and value.

         ¶1 The trial in this matter was held in Kalispell, Montana, on July 13, 2004. The petitioner was present and represented by Mr. Tom L. Lewis. The respondent was represented by Mr. David M. Sandler.

         ¶2 Exhibits: Exhibits 1 through 25 were admitted into evidence. Rulings on objections to particular exhibits were rendered orally. Exhibits to which there were relevancy objections were reviewed to determine if relevant. They were admitted and were considered to the extent that they were relevant.

         ¶3 Witnesses and Depositions: Dr. Alan C. Whitehouse, Dr. Brent P. Pistorese, and Sandra Mayernik testified at trial. In addition, the parties submitted the depositions of Drs. Whitehouse and Pistorese to the Court for its consideration.

         ¶4 Issues Presented: The Court restates the issues as follows:

¶4a Whether the petitioner is entitled to payment of the medical expenses itemized in Exhibit 15.
¶4b Whether the petitioner is entitled to a 20% penalty.
¶4c Whether the petitioner is entitled to attorney fees and costs.

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 The petitioner in this case is Ronald Doubek and I will hereinafter refer to him as "claimant." He is 69 years old.

         ¶7 The claimant worked for W.R. Grace and its predecessor companies at its Libby mine from approximately 1953 to 1960 and again from 1965 to 1990. (Ex. 2 at 9.)

         ¶8 On or about May 31, 1990, the claimant was diagnosed as suffering from asbestos-related lung disease and filed an occupational disease (OD) claim. CNA Insurance Company (CNA) insured W.R. Grace at the time in question and accepted liability for his claim. (Pretrial Order, Uncontested Fact 2; Exs. 1 and 2.)

         ¶9 In 1993 the claimant and CNA entered into a compromise settlement of his claim. The settlement provided for a lump-sum payment of $18, 500 in satisfaction of his claim for indemnity benefits. (Ex. 3.) It reserved future medical and hospital benefits (id.), thus preserving his entitlement to seek medical benefits for his OD.

         ¶10 The present case arises out of medical expenses the claimant incurred in connection with treatment for a heart condition he developed in 1999. CNA has denied liability for the heart condition, asserting that it is not causally related to the claimant's asbestosis. The medical expenses for which reimbursement is sought total $24, 301.82. (Petitioner's Proposed Findings of Fact, Conclusions of Law and Judgment, ¶ 8; Ex. 15.)

         ¶11 Two doctors testified in this proceeding - Dr. Alan C. Whitehouse and Dr. Brent P. Pistorese. Both are pulmonologists and both testified by way of deposition and at trial.

         ¶12 The medical history as pertains to the present controversy begins on March 11, 1999, when the claimant was hospitalized at the Deaconess Medical Center in Spokane, Washington, for shortness of breath and discomfort in his left chest. (Ex. 20 at 19.) Dr. Whitehouse began treating the claimant at that time and has been his chief treating physician since that time.

         ¶13 Dr. Whitehouse is a board certified pulmonologist who has been treating Libby asbestosis cases for approximately three decades. As I noted in Fellenberg v. Transportation Ins. Co., 2004 MTWCC 29, ¶ 16, the predominant asbestos in Libby is tremolite, which has amphibole fibers. Amphibole fibers are different from the more common, less dangerous serpentine fibers of chrysolite and other types of asbestos. Amphibole fibers are needle like, lodge in the lung, and over a period of years, migrate or penetrate through the lungs into the pleura, which is the membrane surrounding the lungs. Dr. Whitehouse has evaluated approximately 500 patients from Libby and maintains and tracks data concerning those patients. He has also treated asbestosis patients from the Hanford, Washington, nuclear facility.

         ¶14 Upon admission to the hospital on March 11th, the claimant was suffering from pleural effusions, which are an accumulation of fluid between the two layers of pleura in the chest cavity. The pleural effusions were caused by the claimant's underlying asbestosis. (Whitehouse Dep. at 6.)

         ¶15 The fluid in the claimant's chest was surgically drained. (Id. at 9 and Ex. 20 at 12.) The claimant was further treated with supplemental oxygen, steroids, and diuretics. (Whitehouse Dep. at 6, 9.) Upon discharge he was placed on Prednisone, which is a steroid. However, on June 10, 1999, he was instructed to taper his Prednisone over four weeks so that at the end of the four weeks his Prednisone usage would end. (Ex. 4 at 23.)

         ¶16 On July 13, 1999, the claimant was re-hospitalized for congestive heart failure. (Ex. 4 at 22.) Congestive heart failure is a general term for the inability of the heart to adequately circulate blood throughout the body. However, in this case Dr. Whitehouse used the term to mean left ventricle failure. (Whitehouse Dep. at 32.) The left ...


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