Submitted: February 4, 2016
TO MONTANA SUPREME COURT
ORDER DENYING MONTANA STATE FUND'S MOTION FOR
SUMMARY JUDGMENT AND GRANTING LIBERTY NORTHWEST INS.
CORP.'S MOTION FOR SUMMARY JUDGMENT
M. SANDLER JUDGE.
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.
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
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.
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
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
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,
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
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 ...