MICHAEL P. BRIGHT Petitioner
MONTANA STATE FUND Respondent/Insurer.
Submitted: April 11, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER, JUDGE.
Petitioner suffered a back injury in 1994 while working at
DPHHS. He retired from DPHHS in 2009, but continued his
second job at a retail store, where he was frequently
required to lift up to 40 pounds and occasionally required to
lift up to 100 pounds. His back pain worsened, but Respondent
denied further liability for his condition in 2014, relying
on Petitioner's treating physician's opinion that his
low back was aggravated by lifting at the retail store.
Petitioner resigned from the retail store in 2015, claiming
that he could no longer work, in part, because of his back
condition. Petitioner seeks TTD or PTD benefits from the date
he resigned, asserting that his back condition is a natural
progression of his 1994 injury. Respondent asserts that it is
not liable for TTD or PTD benefits because, inter
alia, Petitioner's work at the retail store
aggravated his low-back condition and he has not returned to
Respondent is not liable for TTD or PTD benefits.
Petitioner's asserted inability to work is not the result
of a natural progression of his 1994 injury; rather, his work
at the retail store aggravated his back condition and he has
not returned to baseline.
1 The trial in this matter was held on April 11, 2018, in
Helena, Montana. Petitioner Michael P. Bright was present and
represented by John C. Doubek. Melissa Quale represented
Respondent Montana State Fund (State Fund). Jacqui Garcia,
Claims Manager for State Fund, was also present.
2 Exhibits: The Court admitted Exhibits 1 through 18
without objection. Bright withdrew Exhibit 19. After trial,
State Fund moved to reopen the record to add a response to
questions it had sent to Matthew McLaren, MD. This Court
ruled that it would allow State Fund to reopen the record on
the condition that it deposed Dr. McLaren, so he could
explain his answer and be subject to cross examination. State
Fund declined to depose Dr. McLaren and, therefore, this
Court denied its Motion to Reopen the Record.
3 Witnesses and Depositions: This Court admitted
Bright's deposition into evidence. Valerie Bright,
Bright, and Garcia were sworn and testified at trial.
4 Issues Presented: In the Pretrial Order, the
parties state that the issues for this Court to decide are
whether State Fund is liable for temporary total disability
(TTD) or permanent total disability (PTD) benefits from the
day Bright stopped working at Dollar Tree. Nonetheless, in
Petitioner's Proposed Findings of Fact, Conclusions of
Law and Judgment, and at trial, Bright asked this Court to
rule that he is currently entitled to medical benefits and
that he will be entitled to permanent partial disability
benefits at age 67. However, this Court does not address
issues that are not presented in the Pretrial
Order; thus, this decision is limited to whether
State Fund is liable for TTD or PTD benefits.
5 This Court finds the following facts by a preponderance of
6 In 1982 or 1983, prior to the incident giving rise to this
claim, Bright worked for the Department of Revenue, Liquor
Division, as a warehouseman. While he was working in that
capacity, a shipping pallet he was standing on gave out from
underneath. He landed on the floor and injured his back.
7 Orthopedist Brooke Hunter, MD, saw Bright at various times
since then for significant flare-ups of his back pain.
8 In 1990, the Department of Health and Human Services
(DPHHS) hired Bright as a case manager. In that position, he
was responsible for managing a caseload; he interviewed
people and determined their eligibility and continuing
eligibility for social programs.
9 On July 1, 1994, Bright injured his low back while moving
some file cabinets at work.
10 State Fund accepted liability for Bright's low-back
injury and paid medical benefits, as well as a 7% whole
11 Bright returned to work four days after the incident and
continued in his time-of-injury position while he underwent
treatment for his back.
12 Dr. Hunter saw Bright on August 24, 1994 and documented
the July 1 incident. He noted that Bright had increased back
pain going down to his ankles in an L-5 distribution. He gave
Bright Tylenol #3 and Ibuprofen and told him to call in if he
was not doing better in a few weeks.
13 Bright returned to see Dr. Hunter in 1995 for a flare-up
of his back pain. He also had pain in his lateral calf and
down to the toes.
14 In 1996, Bright became a fraud investigator at DPHHS.
15 Bright saw Dr. Hunter again in 1997 for a recurrence of
low-back pain. Bright had had locking up and pain down into
the buttocks, as well as right-leg pain down into the calf,
and numbness down into the heel. X-rays were taken of flexion
and extension views, which revealed complete obliteration of
the L-5, S-1 space with vacuum phenomena but no gross
16 In February 1998, Sandra H. Rincon, an adjuster for State
Fund, wrote to Dr. Hunter to clarify several issues with
regard to Bright's claim. In particular, she asked
whether Bright's L5-S1 condition was related to the
injury of July 1, 1994, to which Dr. Hunter answered
17 Following another flare-up of Bright's back pain, Dr.
Hunter ordered a lumbar MRI, which Bright had on May 1, 1998.
Dan Alzheimer, MD, had the following impression:
1. Discal desiccation of L3 inferiorly.
2. Significant discal narrowing at L5-1.
3. Modic Type II Endplate changes at L5-S1.
4. No evidence of spinal stenosis.
5. Marked improvement of the herniated discs seen at S1
previously [in a 1993 MRI].
18 Dr. Hunter referred Bright to see Ronald K. Hull, MD, a
pain management consultant, on May 21, 1998. After an
evaluation, Dr. Hull made the following assessment:
The patient's symptoms are associated with documented
objective degenerative disc disease most severe at L5-S1 with
a prior history of a herniated L5-S1 intervertebral disc
which has improved since 1993. . . . I suspect he may well
have some degree of mechanical low back pain with the
associated degenerative disc disease and some degree of facet
More importantly, I am concerned that there is a likelihood
of psychologic and emotional factors influencing the
patient's perception of pain based on the fact that his
pain condition is so long-standing. Plus, he does exhibit
four positive Waddell's findings on examination.
Hull recommended that Bright undergo a chronic pain
psychologic evaluation before any other medical
investigations or treatment.
19 Upon review of Dr. Hull's report with Bright, Dr.
Hunter explained that Bright did not have a "surgical
spine problem," and concurred with Dr. Hull about
ordering a psychological evaluation.
20 On July 20, 1998, Bright met with Mary K. Bogumill, PhD, a
Clinical Neuropsychologist. Dr. Bogumill administered a
number of psychological tests, reviewed Bright's records,
and conducted a clinical interview. Dr. Bogumill's
interpretation was that Bright had a pain disorder ...