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York v. Maco Workers Comp Trust

Court of Workers Compensation of Montana

January 15, 2019

JENNY YORK Petitioner

          Submitted: April 10, 2018




         Petitioner 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.


         Respondent 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 regular employment.

         ¶ 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 the evidence.

         ¶ 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 heavy duty.

         ¶ 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 injury.

         ¶ 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 medication cart.

         ¶ 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 claims.

         ¶ 16 On August 17, 2011, Dr. Heetderks operated on York's right shoulder, repairing her impingement and rotator cuff tears.

         ¶ 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 shoulder.

         ¶ 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 ...

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