APPEAL FROM: Montana Workers' Compensation Court, WCC No. 2008-2066 Honorable James Jeremiah Shea, Presiding Judge
The opinion of the court was delivered by: Laurie McKINNON
Submitted on Briefs: February 20, 2013
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Liberty Northwest Insurance Corporation (Liberty) appeals an order of the Workers' Compensation Court (WCC) determining that Sharon Stewart is entitled to continued payment for her pain medication. Stewart cross-appeals the WCC's determination that she is not entitled to attorneys' fees or the statutory penalty.
¶2 We have consolidated the appeal and cross-appeal issues into the following three issues:
¶3 1. Whether the WCC erred when it determined that Stewart was entitled to continued payment for the pain patches prescribed by her treating physician.
¶4 2. Whether the WCC erred when it determined that Stewart was not entitled to reimbursement for her attorneys' fees.
¶5 3. Whether the WCC erred when it failed to impose the statutory penalty on Liberty, pursuant to § 39-71-2907, MCA.*fn1
Factual and Procedural Background
¶6 On August 26, 2002, Stewart suffered an injury in the course and scope of her employment with Gallatin Laundry Company, Inc. (Gallatin). Liberty, which insured Gallatin, accepted liability for Stewart's injury and paid wage loss and medical benefits with an 18% whole person impairment rating.
¶7 Stewart's initial treating physician, Dr. John Campbell, diagnosed her injury as a "probable medial meniscal tear" of the right knee. Stewart underwent two arthroscopic surgeries over the next few months, but she continued to have issues with pain and range of motion in her knee.
¶8 In 2003, Dr. Lowell Anderson examined Stewart. He noted that she continued to have right knee pain with an "unknown etiology." Dr. Anderson listed several possible causes for her pain including a "possible saphenous nerve neuroma." Dr. Anderson assigned Stewart a 35% impairment rating based on his opinion that Stewart's physical findings "most closely resemble the diagnostic findings in reflex sympathetic dystrophy." Based on Dr. Anderson's diagnosis, Stewart filed a petition with the WCC for an increased impairment rating.
¶9 An evidentiary hearing on Stewart's petition was held on August 9, 2006. Despite his earlier statements, Dr. Anderson testified in his deposition in preparation for the hearing, that he did not know how Stewart's saphenous nerve could have been injured during her surgeries, and that, while there was a good chance that Stewart suffered from a pain complex, he could not point to any medical evidence supporting the conclusion that there was a relationship between Stewart's surgeries and her pain symptoms.
¶10 The WCC, in a decision entered September 14, 2007, determined that Stewart failed to carry her burden of proving causation, thus the court denied her request for an increased impairment rating. Stewart did not appeal the WCC's decision.
¶11 On March 12, 2008, Stewart was informed by her pharmacist that Liberty would no longer approve or cover the expense of the pain patches that she had been using for the past several years. This determination was initiated without any advance notice or warning to Stewart or her counsel.
¶12 On March 26, 2008, Stewart filed her Petition for Emergency or Expedited Declaratory Relief to Reinstate Medical Benefits. In her petition, Stewart sought reinstatement of medical benefits for the Lidoderm pain patches for her knee as well as for attorneys' fees and penalties for Liberty's failure to provide benefits to cover the patches.*fn2 In support of her request for reinstatement of these benefits, Stewart had her medical records reviewed by Dr. Clifford Wheeless, an orthopedic surgeon licensed in North Carolina. Dr. Wheeless opined that more probably than not, ...