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Suzanne O'mahoney v. Liberty Insurance Corp.

March 8, 2013

SUZANNE O'MAHONEY
PETITIONER
v.
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 she is permanently and totally disabled due to right arm pain from her industrial injury. Respondent argues that Petitioner has had several jobs approved for her by her treating physician, and that her subjective pain complaints are insufficient to support a finding of permanent total disability.

Held: While Petitioner is undergoing evaluation and treatment at a pain clinic upon referral of her treating physician, she is not at MMI and her claim for permanent total disability is premature. She is entitled to continuation of temporary total disability benefits while she completes her pain treatment.

¶ 1 Trial in this matter was held May 23, 2012, in the Workers' Compensation Court in Helena, Montana. Petitioner Suzanne O'Mahoney was present and represented by Bernard J. Everett. Respondent Liberty Insurance Corp. (Liberty) was represented by Larry W. Jones.

¶ 2 Exhibits: I admitted Exhibits 1 through 10 without objection. During the course of trial, Exhibit 11 was identified and I admitted it without objection.

¶ 3 Stipulations: The parties stipulated that O'Mahoney's medical records could be admitted into evidence without objection.

¶ 4 Witnesses and Depositions: The parties agreed that O'Mahoney's deposition can be considered part of the record. O'Mahoney, Tom F. Earhart, Shannon Marie Guindon, and Megan Hrabe, CRC, were sworn and testified at trial.

¶ 5 Issues Presented: The Court restates the following issues set forth in the Pre- Trial Order:*fn1

Issue One: Whether Petitioner is entitled to permanent total disability benefits for her industrial injury.

Issue Two: Whether Petitioner is entitled to her costs.

FINDINGS OF FACT

¶ 6 On October 2, 2008, O'Mahoney injured her right arm in the course and scope of her employment with Bon Ton Stores, Inc. (a/k/a Herbergers) in Butte, Montana.*fn2

¶ 7 Liberty accepted liability for the injury and has paid O'Mahoney certain wage-loss and medical benefits.*fn3

¶ 8 O'Mahoney's wage rate at the time of her injury was $15.88 per hour.*fn4

¶ 9 Nick DiGiovine, M.D., medically approved the following job analyses submitted by Liberty's vocational consultant: motel desk clerk, Best Western, Butte; host/hostess, Perkins Family Restaurant & Bakery, Butte; parking lot cashier/attendant, Bert Mooney Airport Authority, Butte; para-educator, Hellgate Elementary School, Missoula; and night auditor, Best Western Butte Plaza Inn, Butte.*fn5

¶ 10 O'Mahoney applied for and was awarded social security disability benefits, in part, for the injury she sustained in her industrial accident. She is also diabetic, has high blood pressure, and wears a hearing aid.*fn6

¶ 11 O'Mahoney testified at trial. I found her to be a credible witness. O'Mahoney testified that, in addition to being a restaurant manager, secretary, daycare business owner, and sales manager for Herbergers, she also worked for about 6 months at a Subway making sandwiches and cleaning the restaurant, and 6 months as a substitute janitor for the Anaconda School District.*fn7

¶ 12 O'Mahoney explained that on October 2, 2008, she was in the back receiving room at Herbergers, trying to access two pieces of shelving that were stacked vertically among other shelves. The shelving moved, trapping her right arm. She required assistance extricating her arm.*fn8

¶ 13 O'Mahoney stated that she immediately felt pain in her arm, but because she believed the pain would resolve, she avoided going to a doctor until the following month.*fn9 On November 13, 2008, O'Mahoney began treating with Dr. DiGiovine, who diagnosed traumatic right lateral epicondylitis and right ulnar nerve neurapraxia and placed her on limited duty.*fn10 She continued to treat with Dr. DiGiovine on a conservative basis, with braces and occasional injections.*fn11

¶ 14 On June 9, 2009, Dr. DiGiovine recommended an EMG of O'Mahoney's right arm to address her complaints of increasing elbow pain and aching from her shoulder down into her wrist and hand.*fn12 The EMG was performed on June 23, 2009, and showed decreased conduction velocity in O'Mahoney's right median and right ulnar sensory nerves, with the impression of: "[c]arpal tunnel syndrome and ulnar nerve impairment at Guyon's canal consistent with trauma history."*fn13

¶ 15 Following the EMG, Dr. DiGiovine performed carpal tunnel release and ulnar tunnel release surgery on July 13, 2009.*fn14 Post-operatively, Dr. DiGiovine found that O'Mahoney had limited improvement, and noted that she seemed to be doing well, but that "subjectively she is not expressing that degree of expected improvement."*fn15

ΒΆ 16 Thereafter, O'Mahoney continued to treat with Dr. DiGiovine on a conservative basis, the doctor noting in his exam notes of January 6, 2010, that O'Mahoney continued to complain of persistent pain in her wrist/forearm, with "the ...


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