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State v. Sheehan

Supreme Court of Montana

August 1, 2017

STATE OF MONTANA, Plaintiff and Appellee,
MARK DUANE SHEEHAN, Defendant and Appellant.

          Submitted on Briefs: June 7, 2017

         APPEAL 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

          For Appellant: Chad Wright, Chief Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Mary E. Cochenour, Assistant Attorney General, Helena, Montana.



         ¶1 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.

         ¶2 We affirm.


         ¶3 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.

         ¶4 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 injury.

         ¶5 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.

         ¶6 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 never did.

         ¶7 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 pain."

         ¶8 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."

         ¶9 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 analysis.

         ¶10 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 damage."

         ¶11 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 ...

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