Submitted on Briefs: June 7, 2017
FROM: District Court of the First Judicial District, In and
For the County of Lewis and Clark, Cause No. BDC 2012-149
Honorable Jeffrey M. Sherlock, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Deborah S.
Smith, Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana, Mary E.
Cochenour, Assistant Attorney General, Helena, Montana.
Mark Sheehan received workers' compensation benefits
after suffering a job-related injury in 2009. In 2012, the
State charged Sheehan with felony theft, by common scheme,
for obtaining benefits by means of deception after he
allegedly misrepresented the severity of his injury to
medical providers. At the close of the evidence, Sheehan
moved to dismiss based on insufficient evidence. The District
Court denied the motion. The District Court also rejected
Sheehan's proposed jury instruction on the termination of
benefits under workers' compensation statutes. The jury
found Sheehan guilty. On appeal, Sheehan contends that there
was insufficient evidence to convict him and that the
District Court abused its discretion in rejecting his
proposed jury instruction.
AND FACTUAL BACKGROUND
Sheehan worked as a heavy equipment operator for Riverside
Sand and Gravel in Billings, Montana. He injured his left
shoulder on October 1, 2009, when his jacket sleeve got
caught on the controls as he was exiting an excavator.
Riverside's manager, Kenneth Crouse, submitted a
"First Report of Injury Form" the next day to the
Montana State Fund-Riverside's workers' compensation
insurer. Sheehan returned to his home in Plains to recover
from the injury.
The State Fund accepted Sheehan's claim and assigned it
to claims examiner Karen Horne. The State Fund began paying
Sheehan temporary total disability (TTD) benefits of $1, 252
on a bi-weekly basis on October 7, 2009. The State Fund also
paid medical services benefits related to Sheehan's
After returning to Plains, Sheehan went to see Dr. Terry
Smith. Dr. Smith initially diagnosed Sheehan's injury as
a sprained shoulder. After receiving MRI results, Dr. Smith
added a diagnosis of a cervical sprain and a brachial plexus
injury. Sheehan saw a physical therapist, Dr. Stanley
Stanhope, from October 2009 to January 2010. Dr. Stanhope
observed that, throughout the course of therapy, Sheehan
demonstrated a limited range of motion and self-reported
acute pain symptoms. Dr. Stanhope noted that Sheehan's
pain symptoms were "odd, " "bizarre, "
and "rare, " given the nature of his injury.
In January 2010, Crouse conveyed his suspicions to Horne
about Sheehan's inability to work and his concerns
regarding Sheehan's motivation to return to work. Crouse
requested that Horne investigate Sheehan's workers'
compensation claim. Horne referred an "activity
check" to the State Fund's Special Investigation
Unit. The State Fund contracted with a private investigator
to monitor Sheehan and observe his activities. The private
investigator observed Sheehan twice in early February 2010.
The investigator did not observe Sheehan engage in any
activities that were inconsistent with his reported injury.
Also in early February 2010, Horne contacted Sheehan and told
him that Riverside had a modified duty position available.
Sheehan said that he would attempt to return to work, but he
Around that same time, Sheehan began seeing Dr. Michael
Righetti, an orthopedic surgeon. Dr. Righetti took a history
of Sheehan's symptoms at his initial visit. Dr. Righetti
noted that Sheehan's case was "difficult . . .
because the symptoms that he was having were confusing."
Based on his evaluation of Sheehan, Dr. Righetti ascertained
that Sheehan's subjective symptoms did not match the
doctor's objective findings. For example, Dr. Righetti
noted that Sheehan exhibited "give-away weakness, "
which he explained "is usually a sign that somebody is
trying to show that they are weak, but they may not be
weak." Dr. Righetti noted further that Sheehan's
injured arm showed no evidence of loss of muscle mass, which
he stated would be unusual after five months of alleged
non-use since "muscles atrophy considerably" within
a week of non-use. Additionally, Dr. Righetti observed that
Sheehan displayed "exaggerated expressions of
Nevertheless, Dr. Righetti believed that Sheehan could have
an injury, and he referred Sheehan for a functional capacity
exam. The results of that exam, coupled with the results of a
nerve conduction study, led Dr. Righetti to conclude that
Sheehan suffered from a mild brachial plexus lesion. Dr.
Righetti admitted that he "missed the diagnosis
originally." Dr. Righetti's letter to Horne
following a February 24, 2010 visit with Sheehan acknowledged
that his "original impressions are likely to have been
inaccurate in that this patient is probably not exaggerating
his symptoms." Dr. Righetti set a treatment plan for
Sheehan and followed up with him on April 5, 2010. Dr.
Righetti's letter to Horne following the April 5 visit
confirmed the brachial plexus diagnosis and clarified that
the diagnosis "explains his symptoms and the lingering
symptoms." In that same letter, Dr. Righetti indicated
that Sheehan's symptoms were not yet under control, so
Dr. Righetti could not determine what Sheehan was
"capable of performing."
Dr. Righetti examined Sheehan again on May 3, 2010, at the
request of Horne, to determine whether Sheehan could return
to work as an equipment operator. After seeing him, Dr.
Righetti determined that Sheehan could not return to work at
that time. Dr. Righetti based his opinion on Sheehan's
continued complaints of pain and his "expression of an
inability to do this job." Dr. Righetti notified Horne
of his conclusion, and she requested an alternative job
Sheehan saw Dr. Smith again on May 13, 2010. Sheehan
expressed concern to Dr. Smith that Dr. Righetti was going to
release him to work. Sheehan told Dr. Smith that he had tried
operating a mini excavator, but after thirty minutes he was
in extreme pain and could barely move his arm. Dr. Smith
noted that Sheehan's ability to use his left arm had not
improved and that his pain levels were worse than when Dr.
Smith initially treated him. Dr. Smith's letter to the
State Fund following the visit indicated that Sheehan may
"not regain much function of the left arm due to nerve
Sheehan saw Dr. Righetti the next day. Dr. Righetti concluded
that Sheehan was at maximum medical improvement-meaning that
Sheehan's injury was not "going to get much better
with the treatment options . . . available" and that his
"condition [had] established a certain degree of
stability." Dr. Righetti determined that Sheehan had a
thirteen percent upper extremity impairment and an eight
percent whole body impairment due to his injury. Dr. Righetti
clarified that he based the impairment rating on the
objective findings from the nerve conduction study-not on his
physical examinations of Sheehan-and on Sheehan's
subjective symptoms, which Dr. Righetti explained were
"unsubstantiated by objective findings" and led him
to suspect that Sheehan's symptoms "were not
valid." Dr. Righetti cleared Sheehan to work with
restrictions and recommended no further treatment on his
shoulder. Dr. Righetti noted in a letter to Horne regarding
his May 14 visit with Sheehan that ...