Submitted: July 11, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
Petitioner asserts that he has CRPS in his left ankle as a
result of an industrial accident. Petitioner relies on his
current treating physician who, like many other medical
providers who examined him, observed some of the objective
signs of CRPS per the Budapest criteria, which are included
in the Montana Utilization and Treatment Guidelines.
Respondent denied liability, relying on the opinions of the
physicians who examined him under § 39-71-605, MCA, and
one of his treating physicians, who opined that Petitioner
does not have CRPS. The psychiatrist who examined Petitioner
under § 39-71-605, MCA, concluded that Petitioner has
Somatic Symptom Disorder, a psychological condition.
Petitioner proved by a preponderance of the evidence that he
suffers from CRPS and that it was caused by an industrial
accident. This Court gives greater weight to Petitioner's
current treating physician's diagnosis of CRPS under the
criteria in the Montana Utilization and Treatment Guidelines
primarily because his opinion was supported by the other
medical evidence in this case while the opinions of the
physicians who examined Petitioner under § 39-71-605,
MCA, and the treating physician who agreed with them, were
1 The trial in this matter was held on June 19, 20, and 22,
2018, in Helena. Petitioner Daniel Ward was present and
represented by Matthew J. Murphy and Thomas J. Murphy.
Respondent Victory Insurance Co. (Victory) was represented by
Jon T. Dyre.
2 Exhibits: The Court admitted Exhibits 1 through 3,
9, 12 through 31, 33 through 65, 67 through 79, 81, and 82
without objection. The Court admitted Exhibits 4, 8, 11, and
66 over Ward's objections. Exhibits 5 and 7 were
withdrawn. The Court sustained Victory's objections and
Exhibits 6-1 through 6-3, 6-5, 6-7 through 6-14, and 6-17
were not admitted. During the trial, the Court admitted
Exhibits 6-4, 6-6, 6-15, and 32. The Court admits Exhibit 10,
a written statement of Tyler Brenner, because although a
determination in an unemployment insurance case is not
admissible under § 39-51-110, MCA, evidence submitted in
an unemployment insurance case can be admitted in other
cases. Moreover, the parties deposed Brenner and Ward cross
examined him on the subject matter of the statement. The
Court admits Exhibit 80 for the reasons set forth in footnote
7. This Court excluded Exhibit 83 under ARM
24.29.1595(5)(c). This Court admits Exhibit 84 because
Victory cited no authority supporting its claim that this
Court may not admit copyrighted materials.
3 Witnesses and Depositions: This Court admitted the
depositions of Ward, Riley Silvernail, Tyler Brenner, Jon
Robinson, MD, and Bradley L. Aylor, MD, into evidence. This
Court overrules Ward's objections to the questions on
pages 25 and 28 in Dr. Aylor's deposition because the
questions, while technically compound, were not confusing.
This Court overrules Ward's objections to the questioning
of Tyler Brenner on trial Exhibit 10 because Exhibit 10 is
admissible. This Court overrules Ward's objections to the
questions on page 18 of Silvernail's deposition because,
given the context, the questions were not asking Silvernail
to speculate. Daniel Ward, Angel Ward, Ashley Burch, William
D. Stratford, MD, Emily Heid, MD, and Michael Schabacker, MD,
were sworn and testified at trial.
Issues Presented: The Pretrial Order sets forth the
Issue One: Whether Petitioner is entitled to acceptance of
liability for his February 15, 2016, claim?
Issue Two: Whether Petitioner is entitled to acceptance of
liability for his December 13, 2016, claim?
Issue Three: Whether Respondent is liable for
Petitioner's alleged Complex Regional Pain Syndrome, or a
similar condition, which Respondent disputes exists?
Issue Four: Whether Petitioner is entitled to payment of
incurred medical treatment costs?
Issue Five: Whether Petitioner is entitled to any further
medical benefits at this time?
Issue Six: Whether Petitioner is entitled to any further
indemnity benefits at this time?
Issue Seven: Whether Petitioner is entitled to his attorney
fees, costs, and/or a penalty?
4 The primary issue in this case is whether Ward has Complex
Regional Pain Syndrome (CRPS) from his industrial accident on
December 13, 2016. There is some controversy with CRPS, as it
is not currently well-understood. The Montana Utilization and
Treatment (U&T) Guidelines explain:
Complex Regional Pain Syndrome (CRPS Types I and II)
describes painful syndromes, which were formerly referred to
as Reflex Sympathetic Dystrophy (RSD) and causalgia. CRPS
conditions usually follow injury that appears regionally and
have a distal predominance of abnormal findings, exceeding
the expected clinical course of the inciting event in both
magnitude and duration and often resulting in significant
impairment of limb function.
CRPS I (RSD) is a syndrome that usually develops after an
initiating noxious event, is not limited to the distribution
of a single peripheral nerve and appears to be
disproportionate to the inciting event. It is associated at
some point with evidence of edema, changes in skin, blood
flow, abnormal sudomotor activity in the region of the pain,
allodynia, or hyperalgesia. The site is usually in the distal
aspect of an affected extremity or with a distal to proximal
gradient. The peripheral nervous system and possibly the
central nervous system are involved.
CRPS II (Causalgia) is the presence of burning pain,
allodynia, and hyperpathia usually in the hand or foot after
partial injury to a nerve or one of its major branches. Pain
is within the distribution of the damaged nerve but not
generally confined to a single nerve.
Historically, three stages were thought to occur. These
stages include: Stage 1 - Acute (Hyperemic), Stage 2 -
Dystrophic (Ischemic), and Stage 3 - Atrophic. However, the
stages in CRPS I are not absolute and in fact, may not all be
observed in any single patient. Signs and symptoms fluctuate
over time and are reflective of ongoing dynamic changes in
both the peripheral and central nervous systems.
Although there has been some debate regarding both the
existence and pathophysiologic basis of CRPS, as with all
chronic pain, psychological issues should always be
addressed, but there are a number of studies identifying
5 CRPS is diagnosed clinically, meaning that there is not a
specific test upon which a physician can make a definitive
diagnosis. Rather, physicians rely upon a collection of
subjective symptoms and objective signs to make the
diagnosis. CRPS is diagnosed under what have become known as
the Budapest criteria, established by the International
Association for the Study of Pain in 1993. The U&T
Guidelines have adopted the Budapest criteria to diagnose
CRPS. They are:
1. Continuing pain, which is disproportionate to any inciting
2. At least one symptom in three of the four
-Sensory: reports of hyperesthesia and/or allodynia.
- Vasomotor: reports of temperature asymmetry and/or
skin color changes and/or skin color asymmetry.
- Sudomotor/edema: reports of edema and/or sweating
changes and/or sweating asymmetry.
-Motor/trophic: reports of decreased range of motion
and/or motor dysfunction (weakness, tremor, dystonia) and/or
trophic changes (hair, nail, skin).
3. At least one sign at time of evaluation in two or
more of the following categories:
-Sensory: evidence of hyperalgesia (to pinprick)
and/or allodynia (to light touch and/or deep somatic pressure
and/or joint movement).
-Vasomotor: evidence of temperature asymmetry and/or
skin color changes and/or asymmetry. Temperature asymmetry
should ideally be established by infrared thermometer
measurements showing at least a 1°C difference between
the affected and unaffected extremities.
-Sudomotor/edema: evidence of edema and/or sweating
changes and/or sweating asymmetry. Upper extremity
volumetrics may be performed by therapists that have been
trained in the technique to assess edema.
- Motor/trophic: evidence of decreased
range-of-motion and/or motor dysfunction (weakness, tremor,
dystonia) and/or trophic changes (hair, nail, skin).
4. No other diagnosis that better explains the signs and
6 A person diagnosed under these criteria can obtain an
impairment rating under the 6th Edition of the
Guides to the Evaluation of Permanent
7 The following facts have been proven by a preponderance of
8 During the winter of 2016, Ward worked as a laborer for
Little Bear Construction (LB), a company that installs siding
on houses. Tyler Brenner and his wife Angel own LB.
9 On February 15, 2016, Ward suffered an injury to his left
ankle in the course of his employment. At the time of his
injury, Ward was making $18 per hour.
10 Ward initially saw a physician's assistant, who
thought that Ward had a sprained ankle. However, because
Ward's ankle did not materially improve, on April 4,
2016, the physician's assistant ordered an MRI and
referred Ward to Jon F. Robinson, MD, an orthopedic surgeon.
11 Victory initially paid benefits under § 39-71-608,
MCA, and then obtained an extension from the Department of
Labor & Industry. It thereafter accepted liability.
12 On May 10, 2016, Ward saw Dr. Robinson, who specializes in
ankle injuries. Dr. Robinson reviewed Ward's left-ankle
MRI, which the radiologist read as normal. However, Dr.
Robinson noted instability in Ward's ankle. Dr. Robinson
explained that when a ligament is stretched and lengthened,
it can appear normal on an MRI. Thus, he clinically diagnosed
Ward with injuries to the lateral ligaments and tendons of
his ankle. Dr. Robinson recommended surgical repair.
13 On May 18, 2016, Dr. Robinson surgically repaired
Ward's left ankle, which included reattaching a ligament
that had torn off the bone. At the time, Dr. Robinson
expected Ward to fully recover in approximately 12 weeks, as
more than 90% of his patients with such injuries return to
full unrestricted activity with "basically a normal
14 On July 12, 2016, Ward saw Dr. Robinson. Dr. Robinson
noted that Ward was making "good progress." Dr.
Robinson advised Ward to transition from a post-surgery
walking boot to a regular shoe. Dr. Robinson released Ward to
"full unrestricted activity as long as he wears a lace
up boot . . . ."
15 On August 15, 2016, Ward resumed working for LB.
Ward's ankle remained painful and did not feel stable.
16 Thereafter, LB promoted Ward to a lead installer, a
position in which Ward was the person on a ladder or lift
taking measurements, telling the laborer what was needed, and
installing the siding, soffit, and fascia. Following this
promotion, Ward made $19 per hour. Ward's work
performance was generally satisfactory.
17 Ward returned to Dr. Robinson on October 6, 2016. Dr.
Robinson noted increased pain and swelling, and tenderness
over his lateral ankle, all of which was unusual to have five
months after ankle ligament reconstruction. Dr. Robinson gave
Ward several options and Ward decided to try an ankle brace.
18 Ward returned to Dr. Robinson on December 7, 2016. Ward
continued to wear the brace but continued to have ankle pain.
19 On December 13, 2016, Ward reinjured his left ankle while
working when his foot slipped off the second rung of a ladder
and he landed flat-footed. Ward told Brenner that he
reinjured his ankle. Ward worked the rest of the day.
However, while Ward was driving home, Brenner called and
fired him because of his ankle injury.
20 Victory did not reinstate Ward's temporary total
disability (TTD) benefits because Brenner falsely told Ashley
Burch, the claims ...