Submitted: June 23, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
One of the claimant's physicians recommended an occipital
nerve stimulator to control the claimant's headaches. The
insurer denied liability for the procedure based on the
opinion of another of the claimant's physicians that the
stimulator was not warranted and on a similar opinion of a
medical panel which examined the claimant and reviewed his
The occipital nerve stimulator is neither medically necessary
nor reasonable. Therefore, the insurer is not liable for it.
Benefits: Medical. An insurer is required to
pay for only necessary and reasonable medical treatment.
Benefits: Medical. Where one of the
claimant's treating physicians opines that implantation
of an occipital nerve stimulator for control of the
claimant's headaches is not medically reasonable; that
opinion is supported by a panel of physicians consisting of a
neurosurgeon, a neurologist, and a psychiatrist; and the
panel neurologist provides persuasive and reasoned testimony
supporting a finding that the procedure is not medically
reasonable, the Court finds that in fact it is not medically
reasonable and denies the claimant's petition requesting
the Court to order the insurer to authorize and pay for the
The trial in this matter was held on May 9, 2005, in Helena,
Montana. The petitioner, Scott Sherwood, was present and
represented by Mr. Norman H. Grosfield. The respondent,
Watkins & Shepard Trucking, was represented by Mr. Kelly
Exhibits: Exhibits 1 through 12 and 14 were admitted
without objection. Mr. Wills objected to Exhibit 13 but after
colloquy with the Court, withdrew his objection; the exhibit
was admitted. Subsequent to trial, Mr. Wills submitted a
motion for leave to file an additional exhibit, which is an
April 28, 2005 "Follow-Up Consultation" note of Dr.
Michael H. Schabacker. Mr. Grosfield was contacted and did
not object. The note has been admitted as Exhibit 15.
Witnesses and Depositions: Mark W. Knight and Dr.
Lennard S. Wilson testified at trial. No depositions were
Issues Presented: The Court restates the issues set
forth in the Pretrial Order as follows:
¶4a Whether the petitioner should be allowed to have an
occipital nerve stimulator implanted in accordance with Dr.
John C. Oakley's recommendation.
¶4b Whether the respondent has been unreasonable in
denying authorization for payment of the occipital nerve
stimulator, and whether the petitioner is entitled to a
penalty, attorney fees, and costs.
Having considered the Pretrial Order, the testimony presented
at trial, the demeanor and credibility of the witnesses, the
exhibits, and the arguments of the parties, the Court makes
On November 4, 1993, and May 14, 1996, the petitioner
(claimant) suffered industrial injuries arising out of and in
the course of his employment with Watkins & Shepard
Trucking (Watkins & ...