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Montana State Fund v. Liberty Northwest Ins. Corp.

Court of Workers Compensation of Montana

July 3, 2017

MONTANA STATE FUND Petitioner
v.
LIBERTY NORTHWEST INS. CORP. Respondent and KIM L. WIARD Claimant.

          Submitted: February 4, 2016

          ORDER DENYING MONTANA STATE FUND'S MOTION FOR SUMMARY JUDGMENT AND GRANTING LIBERTY NORTHWEST INS. CORP.'S MOTION FOR SUMMARY JUDGMENT

          DAVID M. SANDLER JUDGE

         Summary: Respondent accepted liability for Claimant's 2011 bilateral carpal tunnel syndrome. Claimant changed positions and her symptoms essentially went away. In 2014, Claimant experienced an acute exacerbation of her chronic left carpal tunnel syndrome while working for the same employer, which by then, was insured by Petitioner. Petitioner paid Claimant benefits under a reservation of rights and filed a Petition for Hearing seeking indemnification from Respondent. The parties have cross-moved for summary judgment on the issue of liability for Claimant's 2014 condition.

         Held: In 2014, after reaching MMI for her 2011 condition, Claimant was required to work longer hours and extra shifts while Petitioner was the at-risk insurer. This exposure materially or substantially contributed to, and significantly aggravated, Claimant's preexisting carpal tunnel syndrome. Therefore, Petitioner is liable for Claimant's 2014 condition and is not entitled to indemnification from Respondent.

         ¶ 1 Petitioner Montana State Fund (State Fund) filed a Petition for Hearing against Respondent Liberty Northwest Ins. Corp. (Liberty) regarding the claim of Claimant Kim L. Wiard, seeking a determination that Liberty is liable: 1) for past, current and future payment of medical and indemnity benefits related to Wiard's ongoing bilateral carpal tunnel condition; and 2) to reimburse State Fund for the costs of benefits it has paid and will pay for Wiard. Stephanie A. Hollar represents State Fund. Michael P. Heringer represents Liberty. Garry D. Seaman represents Wiard.

         ¶ 2 This case is before this Court on State Fund's and Liberty's Cross-Motions for Summary Judgment. A hearing on the motions was neither requested nor held.

         FACTS

         ¶ 3 Wiard began working for Tricon Timber, LLC (Tricon) in 2002. She worked at Tricon until February 2014, with the exception of several breaks, including approximately six months in 2007 during which time she assisted her husband, who was a carpenter, and a few short lay-offs when Tricon ran out of supplies.

         ¶ 4 Wiard's first job at Tricon was to stack one-by-four boards. She soon moved to the faster-paced planer department, where her job was to quickly flip over and stack boards of varied size. Although the work was hard on her body, especially her wrists and hands, she continued in this position into 2011.

         ¶ 5 Wiard began treating with Patrick W. Tufts, MD, around 2010; among other things, he diagnosed her with bilateral carpal tunnel syndrome caused by her employment. During Wiard's treatment, which lasted through mid-June 2011, Dr. Tufts administered several steroid injections, prescribed pain medications, and recommended the use of wrist braces. He also encouraged Wiard to get a different job and raised the possibility of surgery if her carpal tunnel condition did not improve.

         ¶ 6 Wiard complained to her superiors at Tricon and was able to secure a different position aimed at alleviating her carpal tunnel syndrome. By the time she saw orthopedic surgeon Alan D. Alyea, MD, on August 1, 2011, she was training to be a trimmer, which involved placing boards into position to be cut by saw to a custom length. Dr. Alyea developed a treatment plan and indicated that he would determine whether surgical intervention was appropriate after Wiard underwent nerve conduction studies.

         ¶ 7 Later in August, Wiard filed a claim with Liberty for an occupational disease (OD) involving both wrists. Liberty accepted the claim.

         ¶ 8 As a trimmer, Wiard moved her hands in a different way. She found the work much easier and saw her carpal tunnel symptoms largely, if not completely, dissipate. Although she occasionally took over-the-counter pain medication during this time, Wiard did not need to wear her wrist braces. Indeed, she cancelled her appointment for the nerve conduction studies and had no further treatment for her carpal tunnel syndrome for several years.

         ¶ 9 At some point in 2012 or early 2013, Wiard moved into a grader position. The grader position involved turning boards over and putting them in one of three positions. For Wiard, that job was "a little bit" more difficult than being a trimmer, but for a time, "mostly more mental than it was physical."

         ¶ 10 Liberty stopped providing coverage for Tricon on November 1, 2013. State Fund became Tricon's insurer.

         ¶ 11 Sometime after she became a grader, Wiard got a new supervisor. He seemed, to Wiard, to be concerned with proving himself. He put a lot of pressure on his workers to increase the number of board feet they were doing, and expected them to work 10-and 12-hour days, and extra shifts. In around early 2014, Wiard's carpal tunnel symptoms, including pain and swelling, began to come back on and off depending on how many hours she worked. At one point, Wiard told her supervisor her left hand was bothering her and took a day off. He made her come in and use her right hand to work.

         ¶ 12 On February 17, 2014, Wiard was seen at Mineral Community Hospital for left and right wrist pain. She was scheduled for a clinic appointment the following day and taken off work until then.

         ¶ 13 Later the same night, however, Wiard went to the emergency room at Kalispell Regional Medical Center, complaining of severe pain in her right wrist, radiating to her right shoulder. John V. Van Arendonk, MD, assessed her as having an acute exacerbation of carpal tunnel syndrome. Wiard was given a shot of Toradol for pain, discharged with several prescriptions and a work release, and referred for follow-up with an orthopedic surgeon in two to three days.

         ¶ 14 On February 19, 2014, Wiard presented to the St. Joseph's Emergency Room in Polson in severe distress and complaining of pain in her left hand for three or four days. Michael Righetti, MD, took a history from Wiard and her daughter, examined Wiard, and assessed her as having an "acute exacerbation" of chronic left carpal tunnel syndrome, meaning "a[n] increase in symptoms over a period of three to five days." He performed an emergent open carpal tunnel release on her left wrist the same day.

         ¶ 15 Thereafter, Dr. Righetti advised Wiard to schedule a carpal tunnel release for her right wrist at her earliest convenience, which he performed endoscopically on March 25, 2014.

         ¶ 16 Wiard filed an OD claim for left carpal tunnel syndrome with State Fund in March 2014. State Fund first denied the claim on April 1, 2014, due to a lack of information, and reaffirmed its denial on May 6, 2014, because Wiard's medical documentation indicated she had originally been diagnosed with work-related carpal tunnel syndrome when State Fund did not insure Tricon.

         ¶ 17 Wiard requested that Liberty accept liability for her surgery and time loss relative to the August 2011 claim. Liberty denied the request, noting Wiard's filing of a new claim with State Fund.

         ¶ 18 On February 13, 2015, State Fund advised Wiard that it would pay temporary total disability and medical benefits under § 39-71-608, MCA, as there was a dispute between it and Liberty as to which insurer was liable for the benefits.

         ¶ 19 On July 16, 2015, Dr. Righetti examined Wiard and answered several questions in writing at State Fund's request. Dr. Righetti opined that, with respect to her bilateral carpal tunnel syndrome, Wiard had reached maximum medical improvement (MMI), had no permanent impairment, had no lifting restrictions, and required no further treatment.

         ¶ 20 On September 17, 2015, David J. Hewitt, MD, MPH, DABT, performed an independent medical evaluation (IME) of Wiard, which included obtaining a history and physical examination, and reviewing her available records from November 2, 2010, through July 16, 2015. Dr. Hewitt's assessment of Wiard was that her bilateral carpal tunnel syndrome, open left carpal tunnel release, and endoscopic right carpal tunnel release were related to her 2014 claim with State Fund. In response to questions posed by State Fund, he agreed that "the condition/diagnosis that required surgery in 2014 [was] the same condition or diagnosis identified in 2010, and on the first report of injury dated August 2011, " and that "the condition that Dr. Righetti treated Ms. Wiard for in 2014 [was] a continuation of the disease process she was previously evaluated and treated for." He further opined that Wiard's "symptoms and exam findings were consistent with bilateral carpal tunnel syndrome since at least 2010" and "repetitively flipping boards while working at Tri[c]on [was] a reasonable explanation for the development of carpal tunnel syndrome in this case."

         ¶ 21 Shortly after Wiard's IME, Dr. Righetti reviewed Dr. Hewitt's report and indicated in writing that he agreed with his opinions.

         ¶ 22 On October 29, 2015, Dr. Righetti gave a deposition. When asked again if he agreed with Dr. Hewitt's opinion that the condition/diagnosis that required surgery in 2014 was the same condition/diagnosis identified in 2010 and 2011, Dr. Righetti answered, "That's correct." However, as to Dr. Hewitt's opinion that the condition for which Dr. Righetti treated Wiard in 2014 was a continuation of the disease process for which he previously evaluated and treated her, Dr. Righetti disagreed, opining that, "Occasionally the natural progression of this condition can peak at severe symptoms, but it is highly unusual." As to Wiard, Dr. Righetti stated that he thought he saved her hand, that he had never seen carpal tunnel syndrome as bad as hers in his career, and that it would be extremely unusual for her left wrist condition to be a natural progression of her carpal tunnel syndrome.

         ¶ 23 Dr. Righetti explained that with chronic carpal tunnel syndrome, a person's symptoms can wax and wane depending on her activities. Not having symptoms for a period of time would indicate that the person's activities were not aggravating her condition. Dr. Righetti opined that Wiard likely reached MMI after the 2011 carpal tunnel episodes before he saw her in February 2014, "[b]ecause she went from [20]11 to [20]14, which is three years. And during that period of time she didn't elect to have any surgery. The likelihood is that she would have reached maximum medical improvement with mild residual symptoms that she was electing to live with." Dr. Righetti specifically opined that after ...


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