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Hagberg v. Ace American Insurance Co.

Court of Workers Compensation of Montana

April 15, 2019

TERRY L. HAGBERG Petitioner
v.
ACE AMERICAN INSURANCE COMPANY Respondent/Insurer.

          Submitted: May 21, 2018

          ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PETITIONER'S MOTION FOR SUMMARY JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: Respondent argues it is entitled to summary judgment because the IME physician's opinion that Petitioner's pain is unrelated to his industrial accident should control as he is the medical professional with greater expertise. Respondent alternatively argues that the pain medications prescribed by Petitioner's treating physician constitute palliative or maintenance care rendering it outside the scope of its liability. Petitioner asserts he is entitled to summary judgment because his treating physician's opinion that Petitioner's pain stems from his industrial injury carries more weight than the IME physician's opinion, and because his prescription pain medication constitutes primary medical services.

         Held: Respondent's Motion for Summary Judgment is denied, and Petitioner's Motion for Summary Judgment is granted. The physicians have equal credentials to opine as to the cause of Petitioner's current back pain, but this Court gives more weight to the opinions of Petitioner's treating physician because his opinion is based upon better evidence. Moreover, this Court determines that Petitioner's prescription pain medications constitute primary medical services because they are necessary to sustain him at MMI and are therefore not palliative or maintenance care.

         ¶ 1 The parties dispute whether Respondent Ace American Insurance Company (Ace American) remains liable for Petitioner Terry L. Hagberg's prescription pain medications for his back pain. Relying on the opinion of its IME physician, whom Ace American claims has more expertise, Ace American argues that Hagberg's current back pain is not a sequela of his industrial injury; rather, Ace American argues that Hagberg's current pain is solely a result of his degenerative conditions. In the alternative, Ace American contends it is not liable for Hagberg's prescription pain medications because they constitute palliative or maintenance care. Hagberg relies on the opinion of his treating physician, who has opined that his current back pain is from his industrial injury and that his prescription pain medications are primary medical services because they are necessary to maintain maximum medical improvement (MMI).

         STIPULATED FACTS[1]

         ¶ 2 Hagberg injured his back while lifting a 200-250 pound burner unit on or about May 18, 2006, while working for NAES Power in Rosebud County, Montana.

         ¶ 3 Ace American accepted liability for his claim.

         ¶ 4 On June 14, 2006, Hagberg saw Lawrence Splitter, DO. Dr. Splitter diagnosed Hagberg with a lumbar strain, prescribed pain medications and a muscle relaxer, and recommended an MRI.

         ¶ 5 On June 23, 2006, Hagberg had a CT scan of his lumbar spine. The CT scan showed probable foraminal narrowing at L5-S1. Hagberg also had x-rays which demonstrated degenerative disk narrowing at L4-L5, L5-S1, and L3-L4.

         ¶ 6 On June 26, 2006, Hagberg returned to Dr. Splitter complaining of right leg pain. Dr. Splitter referred Hagberg to Lashman Soriya, MD, a neurosurgeon.

         ¶ 7 On July 20, 2006, Hagberg had a lumbar myelogram with a CT scan demonstrating moderate to severe central stenosis at L3-L4.

         ¶ 8 On July 24, 2006, Hagberg saw Dr. Soriya, who recommended microsurgical L2- L4 segmental decompression. Dr. Soriya prescribed a pain reliever and a muscle relaxer.

         ¶ 9 On September 13, 2006, Dr. Soriya performed the segmental decompression surgery.

         ¶ 10 On September 22, 2006, Dr. Soriya noted that Hagberg still had bilateral hip pain, but that his lower extremity discomfort had resolved.

         ¶ 11 On October 17, 2006, Dr. Soriya noted that Hagberg reported significant improvement in lower extremity symptomology and back pain.

         ¶ 12 However, on November 15, 2006, Hagberg returned to Dr. Splitter, who noted:

The patient still complains of low back pain that he rates about 8-9 out of 10 precipitated by prolonged sitting, standing, and range of motion, alleviated by taking his medications. He states he is in physical therapy which does not seem to be helping that well. However, he just started that. He complains of numbness in the bilateral feet on the dorsal and plantar aspects distally and bilateral buttock pain. He describes the pain as a dull ache.
. . . No changes since 6/26/06 other than resolved radicular symptoms in the lower extremities and recent L2 to L4 segmental decompression.

         ¶ 13 On January 3, 2007, Hagberg returned to Dr. Splitter. Dr. Splitter observed that Hagberg still had back pain, with no changes since his last appointment. Dr. Splitter also noted:

The patient states that bilateral sacroiliac joint injections did not help. He ranks his pain 10/10 today. He states that he did his functional capacity evaluation yesterday. He stated he could not complete it because of pain. However, I got the results [of] the FC[E] [after] he left today, and it demonstrated he is able to work in the medium physical demand level for an eight-hour day. He passed 3/3 validity criteria, which suggested excellent effort. He describes his pain as a dull ache. Aggravating factors are movement. Alleviating factors are trying to stay still. Pain is constant.

         Dr. Splitter opined that Hagberg had reached MMI and that Hagberg had a 26% whole person impairment under the 5th Edition of the Guides to the Evaluation of Permanent Impairment. Dr. Splitter explained:

He qualified for a 10% impairment of the lumbar spine given his single-level decompression with residual pain, and an additional 2% regarding two extra levels . . . and . . . he qualified for 15% impairment due to loss of motion. These two impairments are combined . . . to correspond to a 26% impairment of the whole person.[2]

         Dr. Splitter also referred Hagberg to Michael Schabacker, MD, at the Northern Rockies Regional Pain Center for pain management.

         ¶ 14 Dr. Schabacker has been acting as Hagberg's treating physician since January 3, 2007. Dr. Schabacker specializes in pain medicine, physical medicine, and rehabilitation. He is certified by the American Board of Physical Medicine and Rehabilitation and Pain Medicine.

         ¶ 15 Dr. Schabacker prescribed Hagberg opiate pain medications for his back pain.

          ¶ 16 On September 21, 2007, the parties settled the indemnity portion of Hagberg's workers' compensation claim, leaving medicals open.

         ¶ 17 On December 29, 2009, x-rays of Hagberg's lumbar spine showed chronic-appearing degenerative changes with sclerosis.

         ¶ 18 On June 17, 2010, x-rays of Hagberg's lumbar spine revealed a progression of the lower lumbar degenerative disease when compared to the December 29, 2009, exam.

         ¶ 19 On September 6, 2012, x-rays of Hagberg's lumbar spine showed no significant change except for an increase in the scoliosis, a L3 laminectomy, and mild degenerative ...


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