TERESA L. LEYS Petitioner
LIBERTY MUTUAL INSURANCE Respondent/Insurer.
Submitted: December 9, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
claims she suffered carpal tunnel and postconcussive
syndromes following a 2008 industrial motor vehicle accident.
Respondent accepted liability for the accident and paid TTD
benefits until June 23, 2015, at which time it denied that
Petitioner had postconcussive syndrome as a result of her
motor vehicle accident. Petitioner's carpal tunnel
syndrome recurred in late 2015, but Respondent refused to
reinstate TTD benefits. Petitioner argues that Respondent
remains liable for her carpal tunnel syndrome and that she is
entitled to PTD and/or TTD benefits because her
accident-related conditions have rendered her unable to work.
Respondent disputes its continued liability for
Petitioner's carpal tunnel syndrome and denies she is
entitled to any further wage loss benefits.
is no longer liable for Petitioner's carpal tunnel
syndrome because the medical opinions tying the recurrence to
her 2008 industrial motor vehicle accident were based on
misinformation and Respondent's initial acceptance of
liability for that condition was based on a mutual mistake of
fact. Petitioner is not entitled to TTD or PTD benefits for
postconcussive syndrome because her treating physician's
opinions were unreliable and, therefore, she did not meet her
burden of proving that she suffered from postconcussive
syndrome from 2015-present as a result of her 2008 industrial
motor vehicle accident.
1 The trial in this matter was held on October 27 and 28, and
December 9, 2016, in Helena, Montana. Petitioner Teresa L.
Leys was present and represented by James G. Hunt and Norman
H. Grosfield. Leo S. Ward represented Respondent Liberty
Mutual Insurance (Liberty).
2 Exhibits: The Court admitted Exhibits 1 through 59
3 Witnesses and Depositions: This Court admitted the
depositions of Leys, Stuart Hall, PhD, Lennard S. Wilson, MD,
and Sherry Reid, MD, into evidence. Leys, Kristi Wilson,
Aaron Leys, William David Stratford, MD, and Joseph K.
McElhinny, PsyD, were sworn and testified at trial.
4 Issues Presented: This Court recasts the issues
from the Pretrial Order as follows:
Issue One: Does Liberty remain liable for Leys' carpal
Issue Two: With regard to her alleged postconcussive
syndrome, is Leys either temporarily totally or permanently
totally disabled as a result of her June 9, 2008, industrial
Issue Three: If, with regard to her alleged postconcussive
syndrome, this Court determines that Leys is either
temporarily totally or permanently totally disabled, for what
period of time are such benefits due?
5 This Court finds the following facts by a preponderance of
6 Prior to the 2008 motor vehicle accident (2008 MVA) giving
rise to this claim, Leys had a significant medical history.
In 1997, she suffered a whiplash injury that required
physical therapy to resolve. In 1998, she began taking Zoloft
to get through depression stemming from her divorce. In 2005,
when she gradually discontinued Zoloft, she had substantial
problems with depression, anxiety, attention, concentration,
motivation, irritability, panic attacks, and sleep. That same
year, after documenting a history of worry and panic attacks,
neck and low-back pain, and numbness in Leys' arms, a
physician assistant recommended she get counseling and
mention the numbness to her neurologist to see whether a
brain MRI was indicated. Around this time, she was also
treated for a migraine headache. In 2006, Leys suffered a
displaced fracture of her left wrist, which required closed
reduction with conscious sedation. And in 2007, she suffered
chest pains and palpitations.
7 Around November of 2007, Leys started working full-time as
the Administrator at Edgewood Vista Management (Edgewood) in
Belgrade. About six months into her tenure, she and her
manager signed a 90-day action plan, designed to address some
long-standing problems at the facility. The plan documented a
number of performance issues on Leys' part, including
problems with trust, communication, training, scheduling,
time- and supply-management, follow-up, documentation, and
8 During this period, Leys had several stressors in her life,
including: working up to 60 hours a week with limited time
off, a sick father living on the Hi-Line, and problems with
her former boyfriend/common-law spouse.
9 On June 9, 2008, Leys was in the course of her employment
with Edgewood, driving a company car, when she noted a
vehicle in her rear-view mirror. Leys was traveling
approximately 15 miles an hour. The other driver got very
close to her and waved at her to get out of the way. He then
backed off substantially before zooming up behind her again,
rear-ending her at an excessive speed for the zone, pushing
her approximately 250 feet forward, and fleeing the scene.
10 Leys told her medical providers that, just before impact,
she had both hands on the steering wheel. However, it is now
known that statement was false as Leys was holding her cell
phone with her right hand and talking to her co-worker and
friend, Coreen Rooney.
11 The first things Leys recalled after impact were finding
everything from her passenger seat on the floor, looking for
her phone, and seeing a man at her driver's-side window.
The man, Matthew L. Garson, DDS, was a witness to the
accident. He stated:
I was at the side of Ms. Leys' vehicle within 20-30
seconds of the impact. Ms. Leys was visibly upset and
appeared dazed and confused when I arrived. Although I was
able to speak with Ms. Leys, I don't know if she
understood me because she didn't seem focused during our
conversation. She told me her neck hurt and it appeared to me
that her neck was injured. . . .
I remained at the scene . . . approximately 10-15 minutes
from the time of impact. During this time, she continued to
appear dazed and confused.
Leys called 9-1-1 but was confused by the operator's
Leys was transported from the scene of the accident to
Bozeman Deaconess Hospital by ambulance. When medical
personnel arrived, they documented that Leys was
"A㬞," meaning that she was alert and oriented to
person, place, time, and situation. Leys denied hitting her
head and losing consciousness. The ambulance record indicates
that she denied "SOB, numb/tingling extrem[i]ties,
head/neck pain, blurred vision, dizziness, [and]
nausea," but did complain of "mid back pain in
spine, lower right abd pain, [and] right temporal pain."
13 Rooney met Leys at the Emergency Room and said that Leys
looked "dazed and confused." Rooney reported that
Leys started to cry, which "shocked" Rooney. Leys
kept saying, "I can't believe this happened,"
but when Rooney asked her what had happened to her, Leys
could not say.
14 However, a nurse recorded that Leys scored 15 on the
Glasgow Coma Scale, the highest score possible, indicating
that her neurologic status was normal.
15 Leys told hospital personnel that she had a left-side
headache and right upper quadrant abdominal pain, and that
she had had chest pain right after the accident. She
underwent cervical, thoracic, and lumbar spine x-rays, which
were negative, and was medicated for pain and discharged with
a diagnosis of low-back pain due to myofascial strain.
16 Leys returned to work the following day with just a
headache but felt worse over the following days. She
continued to work, though for fewer hours than before.
17 At some point shortly after the accident, Liberty accepted
liability and started paying benefits.
18 Over the next eight-and-a-half years, Leys received a
variety of care, including: medical, neurological, surgical,
and chiropractic treatments; physical, occupational, and
speech therapies; and counseling.
19 On June 13, 2008, four days after the accident, Leys went
to see Jonathan M. Wilhelm, DC, CCEP, at Pro Chiropractic.
She complained of neck pain, left-shoulder pain, occipital
pain, mid-back pain, muscle spasms, tingling into her arms,
and poor concentration. Among Dr. Wilhelm's initial
impressions were whiplash associated disorder, and
postconcussive syndrome or mild traumatic brain injury. He
gave her a "fair" prognosis and recommended ice,
natural anti-inflammatories, and over-the-counter pain
relievers. However, on August 4, 2008, noting that Leys
continued to suffer from persistent symptoms, Dr. Wilhelm
referred her for postconcussive syndrome rehabilitation with
Cathy Fisher, MS, CCC-SLP, at Neuro Rehab Associates, Inc.
20 On August 14, 2008, Leys established care with Timothy J.
Adams, MD, at Bridger Internal Medicine. Dr. Adams indicated
she was experiencing pain in the back of her neck and on both
sides of her head, as well as bilateral tingling in her
hands. He further noted that she had noticed some memory
problems, forgetfulness, inattention, irritability,
frustration, and impatience since her accident. Dr. Adams
assessed Leys as having cervicalgia, prescribed a trial of
Xanax, ordered an MRI, and referred her for physical therapy.
21 Leys had the MRI at Bozeman Deaconess Hospital on August
21, 2008, which was "[u]nremarkable." Dr. Adams
referred Leys to neurologist Sherry Reid, MD, at
22 On August 26, 2008, Leys saw Steve Anderson, PT, MPT, a
physical therapist. Anderson noted that Leys complained of
bilateral arm numbness and waking several times a night as a
result. Anderson indicated that Leys presented with
"signs and symptoms of soft tissue tightness and
cervical spine dysfunction as well as upper thoracic
dysfunction related to motor vehicle accident of
06/09/08." He thought that she was "an excellent
candidate for conservative care to reduce soft tissue
complaints and improve musculoskeletal dysfunction and
impairments," as well as "an excellent candidate
for further followup with a specialist assessment for
neurologic involvement of the head injury." Leys treated
with Anderson until September 20, 2010.
23 At the end of August, Edgewood granted Leys a 30-day leave
of absence to deal with her medical issues; the leave period
began the first week of September 2008. Her manager contacted
her near the end of the 30 days, inquiring as to whether she
was coming back to work the following Monday. Leys indicated
that she had not been given a medical release and had
restrictions, to which he replied, in essence, "be there
if you want to keep your job." When Leys said that she
would require accommodations, she received a reply thanking
her for her "voluntary" resignation.
24 On September 24, 2008, Leys returned to see Dr. Adams for
a complete physical. She reported that she "fe[lt] fine
except her neck pain." On exam, Dr. Adams noted
"[n]o unusual anxiety or evidence of depression."
25 On September 25, 2008, Leys saw Fisher, a speech-language
pathologist, for a cognitive linguistic assessment.
Fisher's note states, "Initially, she denied that
she lost consciousness but with time realized that there was
a lapse in her memory. The first thing she remembers after
the accident was two witnesses coming to her door." Leys
denied having any past concussions or head injuries. Fisher
administered several standardized tests and reported that
Leys' scores fell in the average range overall. Fisher
recommended speech-language therapy with the goals of
improving attention, memory, and executive functioning. Leys
treated with Fisher through February of 2010.
26 In a letter dated October 2, 2008, Edgewood formalized the
end of its employment relationship with Leys, writing:
"This letter is to notify you that we are accepting your
voluntary resignation with Edgewood Vista, Belgrade effective
October 7, 2008." Among the reasons given included that
Leys had been placed on a performance improvement plan in
April 2008 for serious concerns regarding her performance and
conduct as Administrator, Leys had indicated that she was
still unable to perform the duties for which she was hired,
and Edgewood could not accommodate a part-time or other
modified job for Leys' position as Administrator given
that it was essential to the company's business
27 On October 6, 2008, Leys saw Michelle Rosen, OTR/L, for
occupational therapy. Leys' chief complaints included
struggling with concentration, difficulty with reading, pain
in her neck, back, and shoulder muscles, difficulty with
peripheral vision, and "everything takes longer."
Following evaluation, Rosen summarized Leys' impairments
as follows: "Testing and results indicate impairments
for upper extremity gross motor coordination, left hand fine
motor coordination, visual perceptual skills, processing
speed, gross ocular skills, and independence with activities
of daily living." Rosen felt that Leys demonstrated
excellent rehab potential and worked with her through May 4,
28 On October 16, 2008, Leys saw Dr. Reid, a neurologist. Dr.
Reid has served as Leys' treating physician. Dr. Reid had
no pre-accident medical records, but Leys denied any prior
head injuries or headaches, or arm or neck problems. She
further told Dr. Reid that, at the time of the accident, her
hands were on the steering wheel, and she sustained a brief
loss of consciousness and confusion. After cognitive and
physical examination of Leys, Dr. Reid assessed her as having
postconcussive syndrome following a concussion/mild traumatic
brain injury, as well as secondary mood disruption, sleep
disruption, cognitive dysfunction, headache, dizziness and
visual disturbance, neck and back pain, and possible
underlying entrapment neuropathy. Leys declined an EMG of her
arms at that time. Dr. Reid counseled her to continue her
current therapeutic modalities, including physical therapy,
speech therapy, and occupational therapy, increased her
Zoloft and put her on a trial of Ambien, and, for her neck
pain, referred her to Bradley Lewis Aylor, MD, PT, at Bozeman
Sport and Spine.
29 In the fall of 2008, Leys had a neuropsychological
evaluation, at Dr. Reid's and Leys' attorney's
referral, with David E. Nilsson, PhD, ABPP-CN.
30 Dr. Nilsson first met with Leys to take a history. Leys
reported to Dr. Nilsson that she had a "momentary loss
of consciousness" in the accident. She recalled the
impact, but not the immediate subsequent events; her first
memory was bystanders coming to her window. Leys told Dr.
Nilsson that immediately after the accident she experienced
blurred vision, nausea, tingling in her hands, and head,
neck, and back pain. She reported that she continued to have
nausea, vomiting, blurred vision, daily headache, decreased
sex drive, memory problems, depression, anxiety, problems
with concentration, insomnia, easy fatigability, neck pain,
and tingling in her hands. Leys reported that she returned to
work but, due to the sequalae from her injuries,
"started multiple tasks and finished few." She
reported that she had to rely on her assistant but that when
her assistant left in August 2008, she "could not
function." She informed Dr. Nilsson that she was
"dismissed and blamed for previous problems." Leys
reported that she had problems with simple tasks, such as
paying her bills. She reported that she got lost while
driving to familiar places.
31 Dr. Nilsson documented that, prior to her accident, Leys
had had no serious medical or physical injury or disease,
that she had experienced occasional migraines through early
adulthood, and that she had a family history of depression
and was taking Zoloft. Although Leys did "not describe
depression as being her most prominent symptom," Dr.
Nilsson noted that she reported experiencing "reactive
irritability, low stress and frustration tolerance, more
anxiety-based symptoms commonly associated with the traumatic
32 Dr. Nilsson then administered several neuropsychological
tests on November 14, 2008. Dr. Nilsson concluded that
Leys' test results showed a brain injury:
Results of neuropsychological testing suggest that Ms. Leys
was, and continues to be, a bright woman, obtaining a
WAIS-III Full Scale I.Q. score of 121 (92nd
percentile). However, consistent with her medical history of
acquired brain injury, subtest scaled scores varied
dramatically. No preinjury testing was available at the time
of the evaluation. Her overall test profile reflected
dramatic variability of functional capacity, subtest scaled
scores ranging from the 99th percentile (i.e.,
Similarities, Comprehension) down to the 25th
percentile (i.e., Digit Span). Most prominently displayed was
her difficulty for memory, consistent with anecdotal report.
Language memory, particularly structured (i.e., story),
tended to be a relative strength, but below the projected
level of her intellectual and cognitive ability. Ms. Leys
struggled most dramatically for less structured tasks and for
tasks requiring language association learning, reflecting her
relative difficulty conceptually organizing information. The
structured format for recognition memory (i.e., multiple
choice), benefitted her recall, in star[k] contrast to the
less structured testing format. Her lowest scores were for an
unstructured visual-spatial perceptual task, scoring only at
the 16th percentile. Similarly, as would be
expected given such an injury, Ms. Leys struggled rather
impressively for higher order executive function, scoring
within an "average" range or below, struggling for
sequencing and the cognitive flexibility required of
33 Thereafter, in the cover letter to Leys' attorney, to
which he attached his report, Dr. Nilsson noted:
She now is currently roughly eight months post-injury and
continues to display the physical, neurocognitive, and
neurobehavioral sequelae commonly expected for such a medical
history. I find no indication of any effort to exaggerate or
distort symptoms. Ms. Leys displays prominent weakness for
grip strength bilaterally, as well as difficulty for fine
motor control and dexterity, a particularly prominent
difficulty for nursing. She continues to experience numbness
and tingling as well in both hands, more prominently for the
right. She displays a variety of other physical symptoms,
including disruption of sleep, easy fatigability, and
persistent headache, all of which are significantly
disruptive to her day-to-day routine.
Cognitively, Ms. Leys exhibits prominent memory deficits
across a variety of areas in significant contrast to her
current levels of estimated intellectual and cognitive
ability. She is a very bright woman, but consistent with her
report, her functional capacity is significantly impaired and
Dr. Nilsson recommended, inter alia, changing
Leys' antidepressant/antianxiety medication, continuing
speech and occupational therapy, and getting a sleep study.
Dr. Nilsson thought that Leys "will continue to recover
but has likely achieved a majority of recovery
expected." However, Dr. Nilsson stated, "Follow-up
neuropsychological testing may be of benefit in roughly 12
months to monitor recovery and to better understand specific
34 After conducting an initial evaluation and EMG testing on
March 20, 2009, at Dr. Reid's request, John A. Vallin,
MD, diagnosed Leys with bilateral carpal and cubital tunnel
syndromes. He noted however,
I would be unable to explain how her MVA could have caused
these findings given the absence of any fracture or
dislocation of the wrist. She does have a history of an old
left wrist fracture with slight deformity involving the ulnar
aspect of the wrist. She has no preexisting history other
than some reported intermittent numbness of the arms with
sleeping which had not previously been evaluated. It is
possible that the MVA may have exacerbated her ongoing
symptoms though this is unclear as well.
35 On March 26, 2009, Leys underwent an initial evaluation
with Dr. Aylor. He noted that her primary complaints were
neck pain, right- and left-shoulder girdle pain, and daily
headaches. Her secondary complaints included bilateral arm
pain, bilateral hand pain, left greater than right, and
aching in upper arms with tingling and numbness in forearm
and hands bilaterally. Dr. Aylor diagnosed her with Cervical
Spondylosis, Cervicalgia, and Headache, and treated her over
the next six months with mixed results.
36 In April 2009, Dr. Aylor gave Leys joint injections under
fluoroscopic guidance in her neck, followed by trigger point
injections a week later. Both provided immediate, though only
37 On April 23, 2009, Amy Keefer, LCSW, in Bozeman, saw Leys
for an initial intake. She met with Leys for two hours and
administered the Beck Depression Inventory II, which showed
Leys was suffering from "moderate depression."
Keefer continued seeing Leys for therapy until March 25,
38 On April 28, 2009, at Dr. Reid's referral, Leys had an
overnight polysomnography study "to determine if there
may be a sleep disorder contributing to her symptoms of
excessive daytime somnolence as well as her memory
decline." Virginia Pascual, MD, the attending physician,
diagnosed her with "Mild REM related obstructive sleep
apnea." Although she noted, "It does not appear
that this degree of apnea would account for her
symptomatology," due to the fact that Leys had symptoms
consistent with ADHD and also excessive daytime somnolence,
Dr. Pascual prescribed her a stimulant.
39 By May 4, 2009, having worked with Leys for over six
months, Rosen told Dr. Reid Leys had improved in some ways,
but her "remaining impairments . . . continued to impact
her participation in life roles and performance of activities
of daily living." Rosen recommended "continued
Occupational Therapy" and rated her rehab potential as
excellent "due to her motivation and follow
through." Leys continued OT with Stacie Erfle, OTR/L
through January 6, 2010.
40 Later in May, Dr. Aylor gave Leys more joint injections,
followed by more trigger point injections. Aside from her
right arm, Leys reported some improvements.
41 On June 1, 2009, Leys saw Dr. Reid. In a letter to Dr.
Adams the same date, Dr. Reid indicated:
Her left arm symptoms have resolved. She continues to have
right arm tingling and pain. . . . She continues to have
depth perception problems, although this is improving. . . .
She . . . does not trust her judgment and has difficulty
multitasking. She is forgetful and has been lost. She
continues to have word-finding problems. She has difficulty
cooking and actually left the stove on. She still feels
depressed but feels that her emotions and animation is
improving . . . . Her dizziness has resolved. Her headaches
are better, as her neck gets better. She is eager to get back
to work and thinks she could do it about four hours per day
at most in a quiet environment. She does not feel that she
could do her previous job.
Reid opined that Leys might be able to try a couple of jobs
with significant limitations.
42 At his June 10, 2009, re-evaluation with Leys, Dr. Aylor
recommended "medial branch radiofrequency ablation for
C2-3 and C3-4 with the goal of alleviating the upper cervical
symptoms and improving her functional capabilities." He
performed the procedure on June 23, 2009. Three weeks later,
Dr. Aylor noted, "There has been significant improvement
of symptoms following the radiofrequency ablation in terms of
improvement of headache. She no longer has radiating symptoms
into the arms." However, he did document that Leys had
some "neuritis associated with radiofrequency
ablation," for which he prescribed Neurontin.
43 On June 29, 2009, Fisher updated Leys' progress with
respect to her neurocognitive treatment to date. She
indicated, "Terry [sic] has made excellent progress yet
still notices deficits in the areas of attention, memory,
executive functioning and word retrieval. She has excellent
metacognitive skills yet still needs some assistance to
develop compensatory strategies for daily tasks." Fisher
recommended continued "[s]peech-language therapy."
44 At her July 20, 2009, appointment with Anderson, Leys
expressed her readiness to "begin progression of
overhead strengthening." Where, in the past, these
exercises had resulted in headaches, Leys was now able to
tolerate them. I.e., she continued to have burning symptoms
in her neck and headaches, but she did not feel these
symptoms were aggravated by the exercises.
45 In the summer of 2009, Leys drove by herself to and from
Salt Lake City, Utah, to see a friend.
46 At her August 10, 2009, re-evaluation with Dr. Aylor, Leys
complained of neck pain, which radiated into the left side of
the skull, as well as intermittent numbness in her hands and
wrists, left greater than right. Leys reported that her
headaches returned the previous week, beginning in the
afternoon, but resolved with 1-2 Tramadol. Dr. Aylor
recommended that she consider repeating the radiofrequency
ablation if her headaches returned down the road.
47 In late summer 2009, Leys drove by herself to and from San
Diego, California, to see her son.
48 At his October 7, 2009, re-evaluation with Leys, Dr. Aylor
indicated that she continued to have "decreased
sensation at the base of the skull and upper neck as well as
what she describes as a burning sensation," which he
related to the radiofrequency ablation. He suggested that
Leys continue using the "Neurontin with the expectation
that with time the irritation to the nerve will
resolve," and, given that he had no other treatment
recommendations, placed her at maximum medical improvement
49 In the fall of 2009, Leys twice drove to Havre to visit
50 Starting in January of 2010, Leys became entitled to
Social Security Disability benefits, against which Liberty
took an offset.
51 On January 6, 2010, Fisher indicated improvements to
Leys' mood, insight, and functioning, but deficits in her
ability to initiate tasks and acceptance. Fisher recommended
continued speech therapy to "target executive
functioning skills including helping her to modify tasks and
the environment, anticipating difficulties so she can develop
strategies to compensate for them and self-assess performance
so that she can make modifications for the future," as
well as asking her neurologist about "Craniosacral
therapy as a modality to reduce her headaches and possibly
52 On January 20, 2010, Leys saw Dr. Reid, who wrote a letter
to Dr. Adams stating that Leys' "depression is worse
and she has oftentimes stayed in bed for 2-3 days at a time.
She is unable to cope." Dr. Reid also told Dr. Adams
that Leys had daily headaches. Dr. Reid noted that Leys
"continues to have persistent cognitive problems
especially with forgetfulness and multitasking." Dr.
Reid recommended that Leys continue with her physical,
occupational, and speech therapy. Dr. Reid also increased
Leys' Zoloft dose.
53 On February 9, 2010, Leys saw Richard N. Vinglas, MD, a
hand surgeon at Bridger Orthopedic. He documented that she
complained of bilateral hand numbness, tingling, and pain
that started after her motor vehicle accident; Leys denied
any symptoms before that. Dr. Vinglas recommended she undergo
cubital and carpal tunnel release surgeries.
54 On February 25, 2010, Leys told Fisher that Dr. Reid had
referred her to vocational rehabilitation and that she had
been volunteering but having difficulty. Nonetheless, Fisher
noted that Leys was "excited to start the return to work
process by working with a Vocational counselor."
55 In follow-up letters to Dr. Adams in the spring of 2010,
Dr. Reid noted that Leys' depression had improved and
that she was looking to wrap up counseling soon. She further
noted that Leys had completed speech therapy and her
functional ability had improved, although she was still
having problems with judgment, initiation, and execution, and
her vision was still impaired. Finally, Dr. Reid indicated
that Leys was continuing with ...