Submitted: June 7, 2017
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY
M. SANDLER JUDGE.
Petitioner was working as an aide at a high school, a special
needs student hit her, and then hit and pinched her two days
later, leaving bruises. Petitioner did not seek nor require
medical treatment for her bruises, although, after they
resolved, she reported increased neck and arm pain to her
medical providers. The attacks caused PTSD, and aggravated
her preexisting anxiety, depression, and pseudoseizures,
resulting in her inability to work. Petitioner asserts that
she suffered compensable physical injuries, and compensable
physical-mental injuries in the attacks.
is entitled to summary judgment on Petitioner's claims.
Petitioner did not suffer compensable physical injuries in
the attacks. Although she had bruising, she neither sought
nor required medical treatment for her bruises, which
resolved without any resulting disability. While
Petitioner's treating physician for her fibromyalgia
diagnosed increased neck and arm pain as a result of the
attacks, his diagnosis was based entirely on Petitioner's
subjective complaints of pain and was not substantiated by
objective medical findings. Petitioner did not suffer
compensable psychological injuries in the attacks.
Petitioner's anxiety, depression, and PTSD are
mental-mental conditions, and her pseudoseizures are a
mental-physical condition. Neither mental-mental nor
mental-physical conditions are compensable under the
Workers' Compensation Act.
1 Respondent Montana Schools Group Insurance Authority
(MSGIA) moves for summary judgment on the grounds that
Petitioner TG did not suffer a compensable physical injury,
and on the grounds that TG's anxiety, depression, and
posttraumatic stress disorder (PTSD) are mental-mental
conditions and that her pseudoseizures are a mental-physical
condition, neither of which is compensable under the
Workers' Compensation Act. TG opposes the motion, arguing
that the evidence shows she suffered a physical injury, and
2 TG worked as a paraprofessional in a special needs
classroom for Helena Public Schools.
Conditions¶ 3 Before the incidents at issue in this
case, TG had several preexisting conditions, including
fibromyalgia, anxiety, panic attacks, depression, and
4 On June 16, 2015, TG saw Allen M. Weinert, MD, to follow up
on her "fibromyalgia with diffuse body pain." Dr.
She has put in for a job transfer to work with younger
students [as] she relates that some of the disabled students
that she works with in high school are quite violent and she
has suffered injuries because of this. She relates that she
does develop anxiety and panic attacks because of these
exposures. She still has multiple fibromyalgia tender points,
but is dealing with this with consistent exercise.
complained of low-back pain. On physical examination, Dr.
Weinert noted, inter alia, mildly and moderately
reduced range of motion in her neck and shoulders, and
"diffuse tender points" in her neck and upper back.
Dr. Weinert continued her prescriptions, which included
trazodone, Ultram, Neurontin, bupropion, Xanax, and Maxalt.
5 On September 18, 2015, TG went to the ER because she had
five episodes of seizure-like activity. The ER physician
thought that TG may have been having anxiety and panic
6 On September 23, 2015, TG saw Bryan Hilborn, DC. Dr.
Hilborn noted slightly to moderately limited range of motion
in her cervical, thoracic, and lumbar areas. Dr. Hilborn
treated her with chiropractic adjustments.
7 On September 29, 2015, TG saw Katy J. Wessel, DO, for her
seizure-like activity. Dr. Wessel witnessed an episode. Dr.
Wessel noted that TG did not have tonic-clonic movements and
thought it could be a pseudoseizure. However, Dr. Wessel was
not convinced TG was having a panic attack. Thus, Dr. Wessel
referred TG to neurology. Dr. Wessel restricted TG from
driving because "if she had an episode like she had in
our clinic today while driving, she would surely get in an
8 On October 7, 2015, a special needs student hit TG. On the
Accident/Incident Report, TG wrote that the student
"started to hit and kick. He hit me in the face and
knocked my glasses off my face." She checked the boxes
stating her face and hands were injured in the incident. She
suffered bruising from this incident.
9 The following day, MSGIA denied liability for this claim on
the grounds that the "information currently available to
this office indicates you have not sought medical treatment
in relation to your 10/7/2015 claim. Based on this, we must
respectfully deny your claim as it does not meet the
requirements for a compensable injury under the Montana
Workers' Compensation Act."
10 On October 9, 2015, the student again became violent with
TG. On the Accident/Incident Report, TG wrote that the
student first hit her with an open hand in the gym. The
student then slapped another student. Thus, TG decided to
remove him from the gym. As they walked to the classroom, the
student hit her again in the head, stomach, and breasts. The
student also pinched her. TG could not get the student off
her, and yelled for help. Three coworkers rescued her. TG
reported injuries to her shoulder, upper arms, forearm, upper
back, and lower back. She suffered bruising from this
11 On October 13, 2015, MSGIA denied liability for this claim
on the grounds that TG did not seek medical treatment for her
12 TG continued to work until the Thanksgiving holiday, but
did not return thereafter.
Treatments Following the Workplace Incidents
13 On December 8, 2015, TG saw Nicole C. Clark, MD. Dr. Clark
- who had previously treated TG for "significant anxiety
and headaches" - noted, "This is a 55-year-old
woman with episodes that are likely nonepileptic events
related to her anxiety." Dr. Clark also noted: "She
has still been having significant anxiety. She has been
attacked by students several times at work and she is fearful
of being attacked again. She has taken medical leave off work
right now bc she feels that she is unable to deal with that
environment." Dr. Clark also noted, "At the end of
her visit she tells me that she is scared to go back to work
and everyday she is supposed [to] go to work she gets
nauseous and throws up just thinking about going back with
that student who recently attacked her."
14 On December 9, 2015, TG returned to Dr. Wessel because she
was suffering from severe depression. Dr. Wessel wrote:
She was attacked at work again by a student as she teaches
the special needs kids. She says it occurred in the end of
Oct. sometime. She did an accident report at the school, but
she does still have to work in the same classroom with him.
When it occurred, the kid chased her and pushed her up
against a wall and was hitting her and pinching her. She says
he started out in the gym and she ran and he caught her. She
says she has not been able to go back to work since
Thanksgiving as she has been sick and felt anxious to the
point of vomiting and is unable to go to work.
Wessel also noted, "She has a long-standing history of
anxiety and it has been extremely severe to her at times in
her life to the point she is unable to work which is where
she is currently."
15 On December 9, 2015, Dr. Wessel wrote a letter taking her
off work as a result of her psychological conditions, and
opining that the cause of TG's PTSD was the attacks:
Please allow [TG] to take medical leave due to her severe
anxiety and depression. We are in the process of attempting
to get it under better control. Please be willing to work
with her as to when she will be able to return. In my
professional opinion, she is also suffering from some post
traumatic stress from some incidents that have occurred on
16 On December 21, 2015, TG returned to Dr. Weinert. Dr.
[TG] is a . . . school aide who returns for follow up of
diffuse body pain with fibromyalgia with increased symptoms
of neck and left arm pain since suffering an assault at work.
The patient relates in late October she was attacked by a
student who hit her about the [sic] and arms causing
bruising. She denies any concussion. She relates suffering
emotional trauma from this and began to develop what she
describes as "seizures." [They] seemed to be worse
before she went to school and her primary care physician
diagnosed her with PTSD and she has been off of work since
November 23. She does have an appointment with a psychiatrist
on January 6. The patient still relates a great deal of
discomfort in the posterior neck and left arm. She denies any
numbness or weakness in the arms. She has seen a neurologist
for seizures and relates that one of her medical providers
did describe her events as pseudoseizures. The patient
relates that [they] seemed to be triggered by thoughts of
going to work and she relates that she developed diarrhea and
nausea and vomiting as well as diffuse body shaking.
Weinert's physical examination was in all material ways
identical to his physical examination on June 16, 2015: he
noted mildly and moderately reduced range of motion in her
neck and shoulders, and diffuse tender points in her neck and
shoulder areas. While TG told Dr. Weinert she suffered
bruising in the attacks, he noted, "No ecchymosis is
evident about the shoulders or arms." Dr. Weinert's
impressions included: "Fibromyalgia with diffuse tender
points with recent exacerbation of neck and left arm pain
related to an assault at work which appears to be soft tissue
in nature"; depression and anxiety; and probable
pseudoseizures. Dr. Weinert discontinued TG's
prescription for Ultram because it lowers seizure threshold,
and replaced it with a low dose of Norco. He refilled
TG's prescriptions for Neurontin and trazodone. He did
not make any other changes to her prescriptions.
17 On December 23, 2015, TG saw Elize Cline, NP. TG had
undergone an EEG, which was normal. Cline noted, "her
'seizure' events described do not sound epileptic in
nature as her eye movements are not abnormal, maintains
consciousness and able to hear voices during events, is able
to lower herself to the ground, and the pre-event shaking is
not typical of seizures." Cline also noted, "She
self-reports high anxiety, stress and 'PTSD'
diagnosed by her [primary care physician] as the cause for
many of her shaking events." Cline also noted, "She
often has the episodes accompanied by extreme nausea and
vomiting just before she leaves for work in the morning. She
is very nervous about work as she has been assaulted many
times by students."
18 On January 7, 2016, TG saw Connie O'Connor, MD, a
psychiatrist. Dr. O'Connor noted that TG was having the
seizure-like activity "once a month until she was
'attacked' by a student in October. She now has them
once a week[, ] especially when she thinks about going back
to work." Dr. O'Connor understood that TG had been
attacked by the student five times. Dr. O'Connor also
noted that TG has "anxiety daily triggered by thoughts
about going back to work, " and, "[s]he has
flashbacks twice a day and she avoids going back to school or
talking about being attacked." Dr. O'Connor
diagnosed TG with recurrent major depressive disorder,
posttraumatic stress ...