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Sherwood v. Watkins & Shepard Trucking

Court of Workers Compensation of Montana

August 22, 2005

SCOTT SHERWOOD Petitioner
v.
WATKINS & SHEPARD TRUCKING Respondent/Insurer.

          Submitted: June 23, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: 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 medical history.

         Held: The occipital nerve stimulator is neither medically necessary nor reasonable. Therefore, the insurer is not liable for it.

         Topics:

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 procedure.

         ¶1 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 M. Wills.

         ¶2 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.

         ¶3 Witnesses and Depositions: Mark W. Knight and Dr. Lennard S. Wilson testified at trial. No depositions were submitted.

         ¶4 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.

         ¶5 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 the following:

         FINDINGS OF FACT

         ¶6 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 & ...


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