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Wendy Tuttle v. First Liberty Insurance Corp.

October 23, 2012

WENDY TUTTLE PETITIONER
v.
FIRST LIBERTY INSURANCE CORP. RESPONDENT/INSURER.



The opinion of the court was delivered by: James Jeremiah Shea Judge

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

Summary: Petitioner alleges her current disability is a result of her September 2008 industrial accident, entitling her to reinstatement of disability benefits retroactive to the time her benefits were terminated in December 2008 and payment of medical expenses. Respondent counters that Petitioner was placed at MMI with a 0% impairment rating three and a half months post-injury, and that a temporal relationship between Petitioner's industrial accident and the herniated disks discovered over two years post-MMI is insufficient proof of causation.

Held: Respondent is correct that a temporal relationship between Petitioner's current disability and her industrial accident, without more, is insufficient to meet her burden of proof. However, there is ample factual and historical evidence in this case that correlate the objective medical findings of the two herniated disks to Petitioner's work-related injury. Petitioner has therefore met her burden of proof in establishing on a more probable than not basis that the herniated disks in her thoracic and lumbar spine, and her current disability for which she seeks benefits, are causally related to her September 2008 industrial accident. Petitioner has not demonstrated an entitlement to benefits retroactive to the time her benefits were terminated in December 2008. Petitioner is entitled to temporary total disability benefits as of April 27, 2011, the date on which her doctor issued a report stating she could no longer perform her duties.

¶ 1 Trial in this matter was held March 16, 2012, in the Workers' Compensation Court in Helena, Montana. Petitioner Wendy Tuttle was present and represented by John C. Doubek. Respondent First Liberty Insurance Corp. (Liberty) was represented by Larry W. Jones.

¶ 2 Exhibits: I admitted Exhibits 1 through 5 and 7 through 10 without objection.*fn1

During the course of trial, additional Exhibits 11 and 12 were identified and admitted without objection.

¶ 3 Stipulations: The parties stipulated to the filing of post-trial briefs.

¶ 4 Witnesses and Depositions: The parties agreed that Tuttle's deposition can be considered part of the record. Tuttle and Mark Ibsen, M.D., were sworn and testified.

¶ 5 Issues Presented: The Pretrial Order sets forth the following issues:*fn2

Issue One: Whether the Insurer should be required to pay Petitioner temporary total disability and/or permanent total disability benefits retroactively from the time she was cut off.

Issue Two: Whether the Insurer should be required to continue to pay Petitioner temporary total disability and/or permanent total disability benefits.

Issue Three: Whether the Insurer should be required to pay medical benefits for treatment bills incurred by Petitioner.

FINDINGS OF FACT

¶ 6 On September 2, 2008, Tuttle suffered an industrial injury arising from her employment with Rocky Mountain Care Center (RMCC) in Helena, Montana.*fn3

¶ 7 At the time of Tuttle's injury, Liberty insured RMCC under Compensation Plan No. 2.*fn4

¶ 8 Tuttle testified at trial. I found Tuttle to be a credible witness. Tuttle testified that she received her Registered Nurse (RN) diploma following a three-year program in Minnesota. She has held a number of nursing positions in pediatrics, geriatrics, and home care.

¶ 9 In December 2007, Tuttle began working for RMCC in Helena as a full-time RN, caring for patients and supervising nurses' aides.*fn5

¶ 10 Tuttle explained that her first report of injury references only the second of two incidents that occurred during the evening and early morning hours of her 12-hour shift on September 1-2, 2008.*fn6 She testified that the first incident occurred when a large male patient in a walker grabbed her left arm when she attempted to give him an insulin injection. The patient pulled Tuttle over his walker, restraining her, and she "[felt] something give," injuring her back and shoulder. When the patient finally released her, Tuttle stated she was in a lot of pain in her left shoulder and down her back. She took some non-prescription pain medication after the incident and continued her rounds.*fn7

¶ 11 The injury report regarding the second incident indicates Tuttle injured her mid left and low back while reaching across a resident in bed to draw blood.*fn8 Tuttle testified that she needed to draw blood from the patient's arm that was against the wall. Because she was unable to pull the bed away from the wall, she had to crawl over the patient and "felt [her] back just give." When she was done, she had difficulty straightening up and had pain from the middle of her back on down.*fn9

¶ 12 Following these incidents, Tuttle went to a massage therapist on September 6, 2008,*fn10 and then began treating with Mary Eckmann, D.C., on September 10, 2008.*fn11 Dr. Eckmann's initial treatment notes show that Tuttle complained of constant lower thoracic pain with muscle spasms, worse on the left, with "[f]requent (51 to 75% of awake time) lumbar region pain," and headaches.*fn12 Dr. Eckmann performed an "Orthopedic Evaluation" during her initial treatment of Tuttle and noted on a sitting straight leg raise (SLR) test for sciatica: "positive on the left producing moderate pain."*fn13

Dr. Eckmann assigned Tuttle work restrictions following her evaluation.*fn14

¶ 13 Dr. Eckmann noted only slight improvement to Tuttle's thoracic and lumbar pain during her next several treatments.*fn15 On October 21, 2008, Dr. Eckmann noted that the severity of Tuttle's lumbar pain increased significantly the night before to a level of 10 out of 10. She restricted Tuttle to no more than a four-hour shift that day.*fn16 In her last visit on November 3, 2008, Tuttle complained to Dr. Eckmann that she was being asked to do more at work and had increasing pain after her shifts. Dr. Eckmann restricted Tuttle to light duty with shifts of no more than eight hours per day and no more than thirty hours in a week.*fn17

¶ 14 Throughout Tuttle's treatment with Dr. Eckmann, her back complaints and muscle spasms were consistently located on the left side.*fn18

¶ 15 Upon referral from Dr. Eckmann,*fn19 Tuttle was seen by Paul Eodice, D.O., on September 26, 2008. Dr. Eodice found Tuttle suffering from mid-thoracic pain localized on the left with occasional lumbar pain. He assigned her lifting restrictions of no more than 20 pounds, no bending or stooping, and ordered her to decrease her work day, initially, to no more than 4-6 hours per day.*fn20 Tuttle normally worked a 12-hour shift three days a week.*fn21

ΒΆ 16 Tuttle attended physical therapy sessions with Matthew S. Fischer, MSPT, at Fischer Physical Therapy, where he noted on her initial exam that she was "very tender" over ...


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