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Davis v. Liberty Insurance Corp.

Court of Workers Compensation of Montana

December 26, 2017

ALAN DAVIS Petitioner
v.
LIBERTY INSURANCE CORPORATION Respondent/Insurer EMPLOYMENT RELATIONS DIVISION, DEPARTMENT OF LABOR AND INDUSTRY Intervenor.

          Submitted: August 18, 2017

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: Petitioner settled his indemnity benefits with insurer on a disputed liability basis, and reserved his future medical benefits. Thereafter, insurer declined to authorize a referral for Petitioner to see his surgeon, citing the five-year medical closure rule in § 39-71-704(1)(f)(i), MCA. Petitioner contends that he is entitled to ongoing medical benefits pursuant to § 39-71-704(1)(f)(ii), MCA, because he is permanently totally disabled.

         Held: Where the vocational rehabilitation expert was unable to point to any suitable jobs for Petitioner, and given Petitioner's older age, modest education, limited transferable skills, near-constant and high levels of pain, poor prognosis, and co-existing health conditions, Petitioner has met his burden of proving that he does not have a reasonable prospect of physically performing regular employment. Because he is permanently totally disabled, Petitioner is entitled to ongoing medical benefits pursuant to § 39-71-704(1)(f)(ii), MCA.

         ¶ 1 The trial in this matter was held on August 18, 2017, in Great Falls, Montana. Petitioner Alan Davis was present and represented by Thomas J. Murphy and Thomas M. Murphy. Larry W. Jones represented Respondent Liberty Insurance Corporation (Liberty). Quinlan L. O'Connor, represented Intervenor Employment Relations Division, Department of Labor and Industry.

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 23 without objection.

         ¶ 3 Witnesses and Depositions: This Court admitted Davis's deposition into evidence. Davis, LaDonna Maxwell, APRN, and Andy Fowler, CRC, were sworn and testified at trial.

         ¶ 4 Issues Presented: This Court addresses the following issues:[1]

Issue One: Did this Court err in ruling that, for purposes of establishing his entitlement to ongoing medical benefits under § 39-71-704(1)(f)(ii), MCA (2011), Davis had the burden of proving that he is permanently totally disabled?
Issue Two: Did Davis meet his burden of proving that he is permanently totally disabled and therefore establish his entitlement to ongoing medical benefits under § 39-71-704(1)(f)(ii), MCA (2011)?

         PROCEDURAL HISTORY

         ¶ 5 Davis's Petition for Hearing sets forth alternative claims. First, Davis contends that he is entitled to ongoing medical benefits pursuant to § 39-71-704(1)(f)(ii), MCA, because he is permanently totally disabled. In the alternative, Davis challenges the constitutionality of the five-year medical closure rule in § 39-71-704(1)(f)(i), MCA. This Court issued an Order ruling that the permanent total disability (PTD) issue would be bifurcated from the constitutional challenge, and tried first.

         ¶ 6 In ¶ 4 of its August 17, 2017, Order on Burden of Proof, this Court ruled that, for purposes of establishing his entitlement to ongoing medical benefits under § 39-71-704(1)(f)(ii), MCA, Davis bore the burden of proving that he is permanently totally disabled.[2] At the outset of trial, Davis moved this Court to reconsider this Order. This Court denied Davis's motion and indicated it would address its reasoning in its final decision.

         FINDINGS OF FACT

         ¶ 7 This Court finds the following facts based on a preponderance of the evidence.

         Davis's Background and Current Condition

         ¶ 8 Davis grew up in Montana and went to school in Great Falls. He dropped out of high school in eleventh grade because he had poor grades and wanted to work. He eventually obtained a GED.

         ¶ 9 His first job after high school was working as a gas station attendant, but his employer fired him after about a year because he could not keep track of the till. After that, he got jobs in vehicle maintenance - changing oil and air filters - and roofing.

         ¶ 10 It was at this later position that, in December 2004, Davis herniated his L4/L5 disk. He was 47 years old at the time. He underwent diskectomy surgery and was given permanent lifting restrictions as a result.

         ¶ 11 In early September 2006, Davis applied for a job at ProBuild Holdings, Inc. (ProBuild). On his job candidate profile tests, he scored 59% for "Dependability, " 60% for "Working Safety, " 68% for "Driving Safety, " and 21% for "People Relations." ProBuild hired Davis into a full-time insulation installer position, and he began working later that month.

         ¶ 12 By late September 2011, five years later, his back pain was down to a level 1 or 2 on most days with flares between 8 and 10 only on occasion. He was taking pain, anti-inflammatory, and muscle-relaxing medications but working on a full-time basis. He did not require any further surgical intervention.

         ¶ 13 In October 2011, Davis was working 40-plus hours per week. He made $16 per hour.

         ¶ 14 On October 7, 2011, while in the course and scope of his employment at ProBuild, Davis suffered injuries to his back, shoulders, and head. He was 54 years old at the time. He sought treatment and continued working, but his back worsened over the next several years.

         ¶ 15 Just before Thanksgiving 2013, Davis suffered an acute flare-up of back pain, which his medical providers attribute to his October 2011 injury. His nurse practitioner, LaDonna Maxwell, APRN, took him off work indefinitely.

         ¶ 16 A December 27, 2013, MRI of Davis's lumbar spine showed a herniated disk at L5-S1, "causing mass effect on the descending R S1 nerve root."

         ¶ 17 On February 13, 2014, Davis underwent a right L5-S1 diskectomy and foraminotomy performed by Dale M. Schaefer, MD.

         ¶ 18 Although his medical providers initially sent Davis's bills and records to the wrong insurer, Liberty eventually received the supporting documentation. Liberty accepted the claim for his 2011 low-back injury and paid wage-loss and medical benefits.

         ¶ 19 In a follow-up exam on May 19, 2014, Dr. Schaefer determined that Davis was at maximum medical healing.

         ¶ 20 In late July 2014, Maxwell released Davis to full-time, modified duty, with the following restrictions: no bending, squatting, or climbing, and only occasional kneeling and lifting up to 10 pounds.

         ¶ 21 Davis underwent a Functional Capacity Evaluation with Michael J. Jensen, PT, OCS, on August 7, and an impairment evaluation with Mark T. Stoebe, DC, DABCO, on August 19, 2014. Jensen determined that Davis had made a reliable effort and assessed his abilities similarly to Maxwell. However, Jensen indicated that, "Based upon his overall performance, it is questionable that he could consistently tolerate working full time." Stoebe determined that Davis had a 12% whole person impairment, noted that Davis was capable of returning to work within the guidelines Jensen indicated, and concluded that "workability from this point forward would best be directed by his general medical provider LaDonna Maxwell, NP."

         ¶ 22 On September 22, 2014, Maxwell further restricted Davis to "[w]orking only 4 hours/shift." And on November 13, 2014, after noting that his right foot went numb after about 4 hours, and that, "[w]hen his foot becomes numb, he is unable to perceive where he is stepping and he begins to drag his leg, " Maxwell updated Davis's restrictions and made them permanent. Although he could frequently lift up to 10 pounds, his restrictions included: no climbing ladders because it was a safety risk; no lifting more than 25 pounds; and only occasional pushing, pulling, reaching, bending, kneeling, squatting, and lifting between 11 and 25 pounds.

         ¶ 23 ProBuild brought Davis back to work as a retail sales representative for $11.50 per hour. He worked a four-hour shift, five days per week. After Davis worked his shift, he was "hurting" and "done." And his back pain worsened as the workweek progressed. He missed work on several occasions during the time he held the sales position because of flare-ups in pain.

         ¶ 24 Davis could not do all the essential functions of the retail sales job. He could not climb ladders to put items on shelves nor lift any heavy materials. Thus, he had to ask his co-workers for help.

         ¶ 25 Maxwell's January 19, 2015, treatment note indicates that Davis's "current condition is probably permanent and chances of improvement are slim to none."

          ¶ 26 Although Davis had planned to continue in the sales position, ProBuild determined that sales were insufficient to support the size of the sales team, and laid Davis off on January 13, 2016.

         ¶ 27 As a condition for receiving unemployment benefits, Davis was required to look for work. He applied for at least 10 jobs, including several sales positions, but never saw one that allowed for a 20-hour work week or received an offer.

         ¶ 28 Davis requested PTD benefits from Liberty on February 10, 2016. Liberty asserted that he did not qualify for PTD benefits.

         ¶ 29 On July 8, 2016, the parties settled their dispute over wage-loss benefits. However, their agreement states:

Medical benefits are expressly reserved by Claimant for any medical condition causally related to the October 7, 2011 workers' compensation claim to the extent such benefits are allowed under the Workers' Compensation Act, and the Insurer reserves any and all defenses at law or equity to any claims for medical benefits.[3]

         ¶ 30 On October 3, 2016, Davis saw Maxwell. Her note indicates, "He states his pain is as bad as it was prior to surgery. I am formally requesting authorization for a repeat appointment with Dr. Schaefer for workup and evaluation."

         ¶ 31 Liberty declined to authorize a referral to Dr. Schafer by e-mail on October 17, 2016, citing the five-year medical closure rule in § 39-71-704(1)(f)(i), MCA.

         ¶ 32 Currently, Davis is in near-constant pain. As a result, he has trouble concentrating, and feels sad and miserable all the time. Although he already has pain at about a level 8 out of 10, at least once a month, Davis suffers a flare-up from sitting or standing too long, where his pain becomes even more severe. At those times, he walks around, takes a muscle relaxer, and sometimes lays down. He also takes pain and anti-inflammatory medications. Davis's foot drop, which occurs more frequently now than before, can affect his ability ...


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