Submitted: July 12, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER, JUDGE
claims that he is not at MMI from his December 2014 injury,
and that he is entitled TTD and medical benefits from the
time Respondent terminated them. Petitioner further claims
that he is entitled to reasonable costs, attorney fees, and a
penalty. Although Respondent accepted liability for
Petitioner's injury, Respondent argues that
Petitioner's current complaints are not a result of the
incident at work, Petitioner has achieved MMI, and Respondent
is no longer liable for benefits. Respondent also contends
that its conduct has been reasonable because Petitioner's
presentation has been unique.
Petitioner proved by a preponderance of the evidence that he
suffered a compensable injury and that he has not reached
MMI. Petitioner is entitled to TTD and medical benefits from
the time Respondent terminated them, and, as the prevailing
party, Petitioner is entitled to reasonable costs.
Respondent's actions in terminating Petitioner's
benefits were unreasonable because it disregarded the
treating physician's opinions and seized upon the IME
physician's opinions despite their obvious faults.
Respondent's actions in failing to reinstate
Petitioner's benefits after the IME physician's
deposition were unreasonable because the IME physician
testified on a more-probable-than-not basis that
Petitioner's injury was compensable. Therefore,
Petitioner is entitled to attorney fees and a penalty.
1 The trial in this matter was held on July 12, 2016, in
Billings. Paul E. Toennis represented Petitioner Danial
Floyd. Charles G. Adams represented Respondent Zurich
American Insurance Co. of Illinois (Zurich). Claims adjuster
Penny Hart was also present on behalf of Zurich.
2 Exhibits: This Court admitted Exhibits 1 through
52 without objection.
3 Witnesses and Depositions: This Court admitted
Floyd's discovery deposition, his videotaped deposition
and written transcript, and the depositions of Shawn M.
Henry, DO, and Bernie L. McCaskill, MD, into evidence. Hart
was sworn and testified at trial.
4 Issues Presented: This Court restates the
following issues from the Pretrial Order.
One: Is Floyd at maximum medical improvement (MMI) for
his injury and if so, when did he reach such status?
Two: If Floyd is not at MMI, for what period is he
entitled to temporary total disability (TTD) benefits?
Three: Is Floyd entitled to further medical benefits
from the time Zurich terminated those benefits?
Four: Is Floyd entitled to costs, attorney fees, and a
5 The following facts are established by a preponderance of
6 At the time of his industrial injury, Floyd was 50 years
old. Floyd had smoked for more than 35 years, and developed
osteoporosis and osteopenia, meaning that his bone density
was lower than normal, to an extent that was unusual for men
of his age. Floyd's osteoporosis and osteopenia made him
more susceptible to fractures, and he had developed chronic
thoracic compression fractures.
7 However, before his industrial injury, Floyd had never
experienced any significant back problems. At most, his back
occasionally felt sore and stiff from a hard day's work,
and he took an over-the-counter pain reliever.
8 This Court viewed Floyd's testimony, which was
videotaped, and he was a credible witness.
9 Floyd began working for Hiland Partners LP, based in
Oklahoma, in October 2014 as a gauger. The position required
heavy labor activity.
10 On December 18, 2014, while Floyd was en route between
jobsites in Montana, his work truck developed a flat tire.
While changing the tire, he could not get one of the lug nuts
loose. Thus, he bent over to try to get more force on the lug
wrench. While jerking up, he twisted wrong, the wrench
slipped, and he felt several pops in his back. He had severe
pain in his legs, his groin, his lower back, and between his
shoulder blades. His legs folded on him and went numb, and he
fell to the ground. He lay in the snow for approximately 30
to 45 minutes. Floyd called his supervisors, who arrived and
took him to the hospital.
11 On the First Report of Injury, Hiland Partners LP
indicated it did not have any reason to question the
accident, and agreed Floyd was injured during his employment.
As set forth in the Pretrial Order, it is an uncontested
fact: "That on December 18, 2014, Petitioner suffered an
industrial injury arising from his employment with Hiland
Partners LP as he was removing lug nuts on a piece of
equipment (truck) near Sidney, Montana."
12 Upon receiving Floyd's claim of a work-related injury,
Zurich accepted liability. Penny Hart, who has been a
workers' compensation claims adjuster in Montana for more
than 15 years, adjusted Floyd's claim.
Treatment in Montana
13 On December 18, 2014, at the Sidney Health Center
Emergency Department, Linda R. Klein, MD, noted that Floyd
had pain, "10/10, " in his mid and low back with
radiation down the entirety of both legs. After detecting
paravertebral spasms in Floyd's mid thoracic and lumbar
spine on physical exam, Dr. Klein ordered a CT scan of those
areas. The CT scan showed three compression fractures in
Floyd's thoracic spine, and a compression fracture at L4,
with anterior wedging, meaning that the L4 vertebrae was
crushed and compressed, as opposed to being broken apart.
14 Floyd first saw Alan K. Dacre, MD, at Ortho Montana Spine
Clinic in Billings on January 7, 2015, "with a chief
complaint of mid back and low back pain." Floyd reported
that since his injury, he had pain between his shoulder
blades, above his belt-line, and in his low back, legs, and
groin. He also had numbness on the outside of both legs,
which, over time, affected his groin and full thighs all the
way to his knees.
15 Dr. Dacre ordered AP and lateral thoracic spine x-rays,
which demonstrated degenerative disk disease in Floyd's
mid thoracic spine, and compression fractures of T7, T8, and
T9. Dr. Dacre also ordered AP and lateral lumbar spine
x-rays, which demonstrated an L4 compression fracture with
approximately 25% anterior column height loss. Dr. Dacre
prescribed a brace and pain medication, and recommended that
Floyd have MRIs of his thoracic and lumbar spine to identify
which compression fractures were acute.
16 Floyd underwent the recommended MRIs on January 9, 2015.
The MRI of Floyd's thoracic spine revealed chronic
compression fractures of T7, T8, and T9. The MRI of
Floyd's lumbar spine revealed an L4 compression fracture
with soft tissue edema in the interspinous ligaments at L3-4.
The radiologist noted, "Edema at the fracture site
suggests this is an acute injury." Thus, the radiologist
concluded: "I appreciate an acute mild superior endplate
compression fracture of L4. Edema of the interspinous
ligaments, facet joints and compression fracture is
consistent with an acute compression fracture secondary to
17 Dr. Dacre reviewed the MRI at a follow-up appointment with
Floyd on February 13, 2015. He ordered new lumbar spine
x-rays, but perceived no change from previous films and noted
that there was no additional collapse of Floyd's L4
fracture. Dr. Dacre noted that Floyd's low-back pain
persisted "despite observation and conservative
bracing" and, "Oral pain medications at this point
are not helping." Dr. Dacre explained that the next
treatment option would be a surgical procedure called
"kyphoplasty, " which Floyd agreed to consider. In
the meantime, Dr. Dacre instructed him to continue with the
brace and prescribed new pain medication. Dr. Dacre informed
Zurich that Floyd was not released to return to work.
Treatment in Texas
18 In March 2015, Floyd moved back to Texas. Hart authorized
Dr. Henry, a board-certified orthopedic spine surgeon at the
Texas Back Institute, to take over Floyd's treatment.
19 Dr. Henry first saw Floyd on April 7, 2015. He took a
medical history, reviewed Floyd's MRIs and x-rays, and
stated that he agreed with the radiologists' findings.
Upon physical examination of Floyd's spine, Dr. Henry
noted, "The patient demonstrates poor range of motion
with flexion, extension, side bending and rotation." Dr.
Henry conducted Waddell's tests, but they were negative.
Dr. Henry assessed Floyd as having "Low back pain
secondary to work-related injury [in] which patient sustained
a compression fracture of L4 back in early December."
Dr. Henry confirmed at his deposition that this was his
diagnosis of Floyd throughout the time he treated him.
20 Dr. Henry recommended a physical therapy program for 6 to
8 weeks, ordered lumbar spine x-rays as well as a bone
density study, and prescribed a Medrol Dosepak, a
non-steroidal anti-inflammatory, a muscle relaxer, pain
medication, and a neuromuscular stimulation unit to reduce
spasm and pain, and to help with atrophy in his lumber spine.
21 Floyd began a course of physical therapy on April 14,
22 On June 3, 2015, Floyd had a bone densitometry assessment,
which revealed osteoporosis in one area and osteopenia, or
low bone mass density, in several others, including L1-L4.
23 Dr. Henry saw Floyd again on June 16, 2015. Dr. Henry
prescribed Floyd additional medication for osteoporosis and
referred him to an endocrinologist. Dr. Henry explained that
it is unusual "for a 50-year-old working male to have
osteoporosis and start developing compression
fractures." Dr. Henry filled out a Texas Workers'
Compensation Work Status Report Form, in which he checked the
box indicating that the "injured employee's medical
condition resulting from the workers' compensation injury
. . . has prevented and still prevents the employee from
returning to work . . . ."
24 On July 23, 2015, Zurich refused to authorize additional
physical therapy. Although the physical therapist thought
Floyd had "Fair" rehabilitation potential, Zurich
determined that Floyd had not shown sufficient progress.
25 On July 28, 2015, Floyd returned to see Dr. Henry with
complaints of worsening low-back pain, radiating to his legs.
Dr. Henry recommended an epidural steroid injection to
"cool down the nerve root inflammation and radicular
pain that he . . . is experiencing in bilateral legs."
Dr. Henry filled out another Texas Workers' Compensation
Work Status Report, again stating that Floyd could not work
as a result of his workers' compensation injury.
26 In July 2015, Hart wrote to Dr. Henry, asking if Floyd was
capable of returning to a modified-duty job, which would have
required him to regularly bend and stoop, lift up to 50
pounds, carry a 30-pound tool tray up and down stairs and
ladders, and walk, on average, 5 miles per day. Dr. Henry
sent a handwritten note back stating: "No the patient
does not meet the ...