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Floyd v. Zurich American Insurance Co. of Illinois

Court of Workers Compensation of Montana

April 12, 2017


          Submitted: July 12, 2016




         Petitioner 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.

         Held: 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.

         Issue One: Is Floyd at maximum medical improvement (MMI) for his injury and if so, when did he reach such status?

         Issue Two: If Floyd is not at MMI, for what period is he entitled to temporary total disability (TTD) benefits?

         Issue Three: Is Floyd entitled to further medical benefits from the time Zurich terminated those benefits?

         Issue Four: Is Floyd entitled to costs, attorney fees, and a penalty?


         ¶ 5 The following facts are established by a preponderance of the evidence.


         ¶ 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."[1]

         ¶ 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.

         Floyd's 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 hyperflexion injury."

         ¶ 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.

         Floyd's 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, 2015.

         ¶ 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 ...

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