TERRY L. HAGBERG Petitioner
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
M. SANDLER JUDGE.
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
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).
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
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
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
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
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.
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.
Splitter also referred Hagberg to Michael Schabacker, MD, at
the Northern Rockies Regional Pain Center for pain
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 ...