Submitted: April 10, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
suffered a compensable right shoulder injury in 2007. In
2013, her treating physician, an orthopedic surgeon,
diagnosed her with a torn rotator cuff and labrum in her left
shoulder and opined that her left shoulder condition is an
overuse syndrome caused by her inability to fully use her
right shoulder for many years. Petitioner seeks medical
benefits and TTD or PTD benefits. Respondent denied liability
for Petitioner's left shoulder condition, relying on its
IME physician, who opined that while Petitioner's left
shoulder condition is degenerative, it likely cannot be
attributed to compensatory overuse alone.
is liable for Petitioner's left shoulder condition
because it is an overuse syndrome caused by her inability to
fully use her right shoulder after her compensable injury.
This Court gives greater weight to Petitioner's treating
physician because he has greater credentials to opine as to
the cause of a shoulder condition. Respondent is liable for
medical benefits. However, Respondent is not currently liable
for TTD benefits because Petitioner has not suffered a total
wage loss as a result of her injury, including her left
shoulder condition, because she was released to return to
work but has voluntarily refused to return. Respondent is not
currently liable for PTD benefits because Petitioner is not
at MMI and because there is insufficient evidence to find
that she does not have a reasonable prospect of performing
1 The trial in this matter was held on April 10, 2018, in
Helena. John C. Doubek represented Petitioner Jenny York
(York). Norman H. Grosfield represented Respondent MACo
Workers' Compensation Trust (MACo).
2 Exhibits: This Court admitted Exhibits 1 through
15 without objection.
3 Witnesses and Depositions: This Court admitted the
deposition Larry Stayner, MD. Jenny York was sworn and
testified at trial.
4 Issues Presented: This Court restates the issues
in the Final Pretrial Order as follows:
Issue One: Is York entitled to medical benefits from MACo for
her left shoulder condition?
Issue Two: Is York entitled to TTD or PTD benefits from MACo?
5 The following facts are established by a preponderance of
6 York was a credible witness.
7 In 2007, York worked as a Licensed Practical Nurse (LPN)
for Lewis and Clark County at the Cooney Nursing Home. York
provided direct nursing care to the residents, including
assisting residents with bathing, administering IVs, and
furnishing breathing treatments. The job was classified as
8 On July 16, 2007, York suffered a right shoulder injury
while lifting a resident who had fallen.
9 At the time of her injury, MACo insured Lewis and Clark
County. MACo accepted liability for York's right shoulder
10 York underwent a course of physical therapy. However, the
physical therapy did not help and York's pain from the
injury persisted. Due to her ongoing right shoulder pain,
York began using her left shoulder more extensively.
11 In 2009, York began working at the Veteran's
Administration's (VA) Medical Center at Fort Harrison.
York worked as an LPN on the surgical floor, where she
frequently lifted and moved patients and pushed a 110-pound
12 On December 15, 2008, York saw David B. Heetderks, MD, an
orthopedic surgeon, complaining of an intermittent stabbing
pain in her right shoulder.
13 On March 10, 2009, York underwent an MRI of her right
shoulder, which showed impingement and rotator cuff tears.
Dr. Heetderks recommended surgery. However, because York had
just started working at the VA Medical Center, she was unable
to schedule the surgery.
14 On July 22, 2009, York suffered a thoracic strain and a
lumbar spine injury at the VA Medical Center. York filed a
federal workers' compensation claim. The Office of
Workers' Compensation Programs (OWCP) accepted liability.
15 On July 23, 2011, York suffered another lumbar spine
injury while working as an LPN at the VA Medical Center. York
filed another federal workers' compensation claim. The
OWCP accepted liability and combined York's back injury
16 On August 17, 2011, Dr. Heetderks operated on York's
right shoulder, repairing her impingement and rotator cuff
17 Following her surgery, York could not drive nor perform
all her activities of daily living. Thus, she went to Texas
to stay with her sister, who drove her to and from physical
therapy and helped her with her daily activities.
18 After four to five months, York returned to Montana. She
did not get complete relief from her right shoulder surgery.
Starting on March 14, 2012, she underwent a series of
corticosteroid injections. However, York continued to suffer
from intense right shoulder pain.
19 On April 23, 2012, York had an MR arthrogram of her right
shoulder which showed a torn labrum.
20 On May 6, 2012, York resumed working at the VA Medical
Center. However, due to her restrictions from her right
shoulder injury, the VA Medical Center reassigned her to a
sedentary position in the outpatient department, where she
worked as a Medical Support Assistant. York's duties
included answering the telephone, checking patients into the
office, helping patients with forms, taking histories, and
checking vital signs. York's desk was behind a sliding
window made of bullet proof glass, which she opened and
closed whenever she needed to speak privately with someone in
the lobby or exchange papers. Because of the pain in her
right shoulder, York frequently opened and closed the window
with her left hand.
21 During this time, York experienced an emerging and
increasing pain in her left shoulder.
22 While working as a Medical Support Assistant, York had an
incident in which her left shoulder pain increased. She
reached for a stack of papers, with the intent of passing the
papers though the window. As she reached, she felt a pulling
and tearing sensation in her left shoulder. At the time, she
thought it was a pulled muscle. Because she had been
suffering with left shoulder pain for some time, and because
she thought she just had a pulled muscle, she did not file
another federal workers' compensation claim.
23 In June 2012, York saw Larry Stayner, MD, an orthopedic
surgeon, to obtain a second opinion on treatment options for
her right shoulder. York informed Dr. Stayner that she was
also experiencing left shoulder pain, which she attributed to
overuse. However, since her main problem was with her right
shoulder, Dr. Stayner did not address her left shoulder. Dr.
Stayner's examination revealed multidirectional
instability in York's right shoulder ― i.e., due to
laxity in her ligaments, her shoulder joint moved too far
― and a recurrent rotator cuff tear. Dr. Stayner
recommended a comprehensive surgery to repair her right
24 On July 16, 2012, York underwent a surgical procedure in
an attempt to relieve her ongoing back pain. Peter P. Wendt,
MD, performed the surgery.
25 Due to symptoms from her back injuries York did not return
to work ...