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Leys v. Liberty Mutual Insurance

Court of Workers Compensation of Montana

August 7, 2019

TERESA L. LEYS Petitioner

          Submitted: December 9, 2016




         Petitioner 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.


         Respondent 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 without objection.

         ¶ 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 tunnel syndrome?[1]
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 injury?
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 the evidence.[2]


         ¶ 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 interaction.

         ¶ 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.

         Industrial Accident

         ¶ 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 directions.

         ¶12 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 Intermountain Neurology.

         ¶ 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 operations.

         ¶ 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, 2009.

         ¶ 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 brain injury."

         ¶ 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 alternating response.

         ¶ 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 disrupted.

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 long-term consequences."


         ¶ 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 temporary, relief.

         ¶ 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, 2010.

         ¶ 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.

         Dr. 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 (MMI).

         ¶ 49 In the fall of 2009, Leys twice drove to Havre to visit her family.


         ¶ 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 other pain."

         ¶ 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 ...

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