FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
JAMES JEREMIAH SHEA JUDGE
Summary: Petitioner alleges she is permanently and totally
disabled as a result of an occupational disease affecting her right wrist,
cervical spine, and right vocal cord that impairs her ability to speak audibly.
Respondent counters that Petitioner has jobs approved for her by her treating
physician and is therefore employable and not totally disabled.
Held: Petitioner's job approvals were inconsistent with her
physical limitations and vocal impairment which renders her unable to speak
above a whisper. Given the totality of Petitioner's condition, she does not
have a reasonable prospect of employment, and is therefore permanently and
¶ 1 Trial in this matter began on January 24, 2013, and reconvened on February 7, 2013. Both days of trial were held in the Workers' Compensation Court in Helena, Montana. During both days of trial, Petitioner Connie Thompson was present and represented by Norman L. Newhall. Respondent Montana State Fund (State Fund) was represented by Charles G. Adams.
¶ 2 Exhibits: I admitted Exhibits 1 through 25, 27, 28, and 30 through 33. Thompson withdrew Exhibit 26. State Fund withdrew its hearsay objection to Exhibit 29, I overruled State Fund's relevancy objection to Exhibit 29, and reserved ruling on the foundation objection to it. On the second day of trial, I noted the foundation affidavit submitted by Thompson's attorney for Exhibit 29. State Fund withdrew its foundation objection to it and I admitted Exhibit 29.
¶ 3 Stipulations: The parties stipulated that paragraphs 48 and 49 of Thompson's proposed findings of fact could be amended by substituting a new, amended page 9. The parties also stipulated that the handwritten changes to Exhibit 18, page 10, were made as a result of Royce Pyette, M.D.'s deposition and the corrections he made to his own records of April 19, 2011.
¶ 4 Witnesses and Depositions: The parties agreed that the depositions of Dr. Pyette and Paul J. Byorth, M.D., and the video deposition of Thompson can be considered part of the record. On January 24, 2013, Amy Kirscher, Dale Bochy, MS, CRC, VRC, Karen Black, M.Ed., CRC, CCM, CDMS, and Thompson were sworn and testified. On February 7, 2013, Kirscher, Bochy, and Thompson concluded their testimony.
¶ 5 Issues Presented: The Pretrial Order sets forth the following issues:
Issue One: Whether Petitioner is permanently totally disabled.
Issue Two: Whether Petitioner is entitled to retroactive and ongoing total disability benefits.
Issue Three: Whether Respondent has acted unreasonably in its handling of the claim.
Issue Four: Whether Petitioner is entitled to reasonable costs, penalties, and attorney fees in accordance with § 39-71-611, MCA, and/or § 39-71-2907, MCA.
FINDINGS OF FACT
¶ 6 Thompson developed an occupational disease within the meaning of the Workers' Compensation Act (WCA) affecting her neck and right wrist in the course and scope of her employment as Office Manager for Potter Clinton Development, Inc. (Potter Clinton) in Bozeman, Gallatin County, Montana.
¶ 7 A First Report shows a "date and time of injury" as April 2, 2009.
¶ 8 On June 23, 2009, State Fund accepted liability for the claim.
¶ 9 As a result of her condition, Thompson underwent a C7-T1 anterior cervical discectomy, implantable device cage with plate arthrodesis surgery on June 12, 2009. A recognized risk of the surgery was vocal cord paresis.
¶ 10 In correspondence dated May 12, 2011, State Fund issued a 14-day notice terminating temporary total disability (TTD) benefits based upon approval of an alternative job as a librarian's assistant.
¶ 11 By letter dated December 16, 2011, Thompson advised State Fund that the librarian's assistant job required her to use her voice for extended periods of time and was clearly not within Thompson's vocal capacity. Thompson requested reinstatement of total disability wage-loss benefits effective April 19, 2011, and conversion to permanent total disability (PTD) status.
¶ 12 By letter dated December 19, 2011, State Fund refused to reinstate total disability benefits or to convert Thompson to PTD status.
¶ 13 State Fund re-commenced payment of TTD benefits under a reservation of rights as of July 15, 2012.
¶ 14 Thompson initially saw Michael A. Layman, M.D., on March 28, 2009, complaining of pain in her right shoulder blade radiating down her arm into her long and ring fingers with associated numbness. According to Dr. Layman's office note, Thompson described a classic C7 right cervical radiculopathy. Dr. Layman recommended Thompson follow-up with Steven R. Speth, M.D., for her neck and right upper extremity pain, and Robert B. Blake, M.D., for carpal tunnel syndrome.
¶ 15 Thompson saw Dr. Speth on April 3, 2009, complaining of 50% neck pain and 50% right upper extremity pain. After reviewing X-ray and MRI scans of Thompson's neck which showed degenerative changes at several levels, Dr. Speth recommended a nerve root block injection at Thompson's C7 level, and medial branch blocks at C7 and T1.
¶ 16 On April 17, 2009, Thompson saw Dr. Blake for her right hand numbness and elbow pain. Dr. Blake referenced Dr. Speth's referral to John A. Vallin, M.D., for a C7 nerve root block, which did provide Thompson some relief. Dr. Vallin also performed electrodiagnostic studies that revealed carpal tunnel and cubital canal syndromes on the right, and an acute C7 radiculopathy.
¶ 17 On June 1, 2009, Dr. Layman wrote to State Fund Claims Examiner Amy Kirscher, stating that the degenerative and arthritic changes in Thompson's neck affecting her cervical nerve root were more likely than not related to an occupational disease as a result of her many years as an executive assistant. Dr. Layman felt that Thompson needed a referral to a surgeon for a determination of further treatment for her cervical spine. Dr. Layman also opined that Thompson's ulnar neuropathy and carpal tunnel syndrome were a result of repetitive trauma and overuse and also constituted an occupational disease. Dr. Layman deferred to Dr. Blake's opinion that these conditions could be treated conservatively without surgery.
¶ 18 Thompson underwent her first cervical surgery on November 9, 1999, consisting of an anterior cervical discectomy and C-4 to C-7 fusion performed by Howard C. Chandler, Jr., M.D., at St. Patrick Hospital in Missoula. On June 12, 2009, Chriss A. Mack, M.D., performed Thompson's second cervical surgery at St. Patrick Hospital, consisting of a C7-T1 anterior cervical discectomy and an implantable device cage with plate arthrodesis.
¶ 19 A CT scan of Thompson's cervical spine on September 11, 2009, revealed a solid fusion from C4-T1, anterolisthesis of C2 on C3 with marked bilateral facet disease, and very marked anterior osteophyte formation with degenerative facet disease at C3-C4. On that same day, Dr. Mack performed a postoperative exam of Thompson. He prescribed physical therapy and noted that Thompson's residual weakness in her voice "would be a significant impairment" in her type of occupation. Dr. Mack further noted: "I will need some advice from my ENT [ear, nose and throat] colleagues on whether or not a tincture of time is in order . . . or whether or not speech therapy would be indicated."
¶ 20 On December 31, 2009, Dr. Mack responded to Kirscher's inquiry, stating that Thompson was at maximum medical improvement (MMI) for her cervical condition, but that she had vocal cord paresis that might affect her occupation, and asked for a referral to an occupational medicine specialist to determine her impairment rating. Dr. Mack approved Thompson to return to work on a medical basis, but noted that her employer would need to determine if her "voice issue" would preclude employment. He also referred her for follow-up with an ENT specialist.
¶ 21 Thompson was referred by the Montana Health System Service Coordinator to Paul J. Byorth, M.D., a Billings Otolaryngologist, for evaluation of her voice and throat problems. Dr. Byorth first saw Thompson on November 17, 2009, and determined that her hoarseness was secondary to right vocal cord paresis – meaning a temporary condition – as opposed to paralysis which would imply a permanent condition.Dr. Byorth noted that Thompson's voice was weak, breathy and easily fatigued, and she had difficulty projecting her voice.
¶ 22 Dr. Byorth noted the increased chance of laryngeal nerve injuries with repeat anterior cervical surgeries such as Thompson had undergone. He advised Thompson it could take up to a year for her right vocal cord to reinnervate. Dr. Byorth explained that a year's wait was standard for someone with recurrent laryngeal nerve injury. Dr. Byorth ...