Submitted: April 5, 2019
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
Petitioner suffered compensable left-shoulder and low-back
injuries in 2012. A year-and-a-half later, his treating
physician declared him at MMI, set restrictions, and approved
a less-demanding JA. Although Petitioner eventually returned
to work elsewhere, he left after a few months due to pain.
Respondent reinstated TTD benefits until January 22, 2015,
after a consulting orthopedic surgeon determined Petitioner
needed no further surgery and his treating physician
determined there was nothing more he could do for him.
Thereafter, Petitioner saw additional surgeons, several of
whom offered conditional recommendations for surgery.
Petitioner argues he is entitled to past due and ongoing TTD
benefits or past due and ongoing PTD benefits, and ongoing
medical benefits, including surgery.
Petitioner is not entitled to TTD benefits because he was at
MMI when Respondent terminated TTD benefits on January 22,
2015 and has remained at MMI ever since. Petitioner is not
currently a candidate for further surgery because the
conditions set by the surgeons recommending it have not been
met. Petitioner is, however, entitled to PTD and medical
benefits from January 22, 2015, on. After Respondent met its
initial burden of producing evidence that Petitioner was and
is not permanently totally disabled with an approved JA,
Petitioner met the ultimate burden of proving that he neither
had nor has a reasonable prospect of performing regular
employment given his older age, modest education, narrow work
history, limited transferable skills, and multiple physical
conditions. Because he is permanently totally disabled,
Petitioner is entitled to ongoing medical benefits. His
entitlement to further surgery will depend on whether the
specific procedure he seeks is considered a primary medical
service at some point in the future.
1 The trial in this matter was held on July 5 and 6, 2018, in
Helena, Montana. Petitioner David Schieber was present and
represented by Thomas J. Murphy and Matthew J. Murphy.
Respondent Liberty Northwest Ins. Corp. (Liberty) was
represented by Leo S. Ward. Jamie Kern, claims adjuster, was
also present on behalf of Liberty.
2 Exhibits: This Court admitted Exhibits 1 through
7, 9 through 31, 35 through 40, 42 through 45, 47 through 51,
and 54 through 68.
3 Witnesses and Depositions: This Court admitted the
depositions of Schieber, Alexander Bailey, MD, James Michael
Eule, MD, Fermin Santos, MD, and Lisa Kozeluh, CRC, into
evidence. Margot Luckman, CRC, Schieber, Kern, and Holly
Roberts were sworn and testified at trial.
4 Issues Presented: This Court rephrases the
following issues from the Pretrial Order:
Issue One: Is Petitioner entitled to past due and ongoing TTD
benefits as a result of his 3/26/2012 injury?
Issue Two: Is Petitioner entitled to past due and ongoing PTD
benefits as a result of his 3/26/2012 injury?
Issue Three: Is Petitioner entitled to ongoing medical
benefits, including, but not limited to, back surgery?
Issue Four: Is Petitioner entitled to costs?
5 This Court finds the following facts by a preponderance of
6 Schieber is 62 years of age and a resident of Osawatomie,
Kansas. He graduated from high school in 1975 and has had no
further formal education or training. He has a commercial
driver's license and has been a truck driver for most of
his adult life, his only other experience being custodial
work at a school.
7 On March 12, 2012, M.A. DeAtley Construction (DeAtley)
hired Schieber to work at a jobsite in Harlowton, Montana. As
a belly dump truck driver, Schieber's main job was
transporting gravel from a pit across rough pasture ground to
a field, between 60 and 80 times a day. However, DeAtley was
short on laborers, so when other employees asked him to help
with odd jobs during driving lulls, Schieber did. Among other
things, he moved equipment, some of it weighing over 100
pounds. DeAtley never told him not to help out at the
jobsite. Indeed, he felt it was an unwritten rule that if you
were not a team player, especially as a new employee, DeAtley
would not keep you around.
8 While he was working on the night of March 26, 2012,
Schieber hit a soft spot in the field and rolled his truck
and trailer onto their right sides. The accident left him
dangling from his seatbelt. After managing to free himself
and get out of the truck, Schieber felt "beat up"
but adrenaline masked the extent of his injuries.
9 DeAtley's night superintendent asked Schieber for a
urine sample to test for drugs but decided not to administer
a breathalyzer as those the company had on hand were expired.
He told Schieber he could not work for 72 hours but to come
back the next day to see the safety officer. Schieber
returned to his camper nearby, drank a few beers to settle
down, and eventually went to bed.
10 The next morning, the safety officer asked Schieber to
take a breathalyzer, but he declined, indicating: "I
don't think I could pass it, and I don't think it
would be fair to me if I took one because I went home and
drank some beer." However, because his left arm, lower
back, and right buttocks were bothering him, Schieber did
allow a DeAtley surveyor to bring him to the hospital to get
checked out. He left with instructions to rest and take
over-the-counter pain medicine as needed.
11 Schieber drove to his house in Huson to recuperate and
await word from DeAtley. But when he called the company to
check in, the secretary told him "they're going to
terminate you because you did a lot of property damage on
their vehicle." On April 2, 2012, Schieber received a
letter from DeAtley confirming his termination but citing his
refusal to take the breathalyzer as the cause.
Treatment in Montana
12 On April 4, 2012, Schieber saw Fred Westereng, PA-C,
complaining of continued right-sided back and hip pain, and
stiffness and soreness in his legs. Westereng thought the
problem was "muscular in origin, " and referred him
for physical therapy.
13 After a month, Schieber "ha[d] made good progress
with his SI joint pain but his L[eft] shoulder ha[d] not
reacted to conservative therapy."
14 On May 10, 2012, Gloria Kornish, PA-C, took him off work,
prescribed Lortab and Flexeril and referred him for
15 On June 11, 2012, Schieber saw Michael W. Woods, MD, for
his back and shoulder. Dr. Woods ordered MRIs of both areas
and released Schieber to modified duty, limiting his lifting
to 10 pounds and indicating "no prolonged sitting,
occasional bending/twisting of back."
16 Notwithstanding, DeAtley never offered Schieber
modified-duty work because it had already fired him.
17 Following review of the MRIs on July 12, 2012, Dr. Woods
recommended a right L5-S1 transforaminal epidural steroid
injection and continued physical therapy.
18 Liberty accepted Schieber's injury claim and paid
wage-loss and medical benefits for his left shoulder and low
Treatment in Alaska
19 Later that summer, after he relocated to Alaska, Schieber
had shoulder surgery with Mark E. Clyde, MD. Although he was
left with a "Popeye" biceps muscle from one of the
procedures, Dr. Clyde thought Schieber would do fine and
referred him for physical therapy. About six months later,
notwithstanding that Schieber was not yet medically stable as
to his shoulder, Dr. Clyde released him to return to regular
20 On November 9, 2012, Schieber saw James L. Glenn, PA-C,
complaining of "central lower back pain with referral
symptoms into the right buttocks, right posterior thigh into
calf with occasional symptoms into the pads of his feet,
" as well as "numbness and tingling in the right
leg, " though "not on a constant basis." Glenn
recommended six more weeks of physical therapy, after which
he gave Schieber a full-duty work status note.
21 Schieber returned to see Glenn in early January 2013,
after exacerbating his lower-back pain while clearing flood
water out of his basement. Glenn ordered an MRI, performed a
right L5 selective nerve root block, and gave Schieber a
light-duty work status note.
22 Although the nerve block temporarily reduced his pain,
Schieber decided to meet with Glenn's partner, James M.
Eule, MD, to discuss surgical options. The orthopedic spine
surgeon recommended a right L5-S1 foraminotomy with
decompression, took Schieber off work completely, and
performed the surgery on May 1, 2013.
23 On June 11, 2013, Dr. Eule noted that Schieber was doing
"better and better." He had "less pain,
although he ha[d] numbness on the ball of his foot still and
he still [had] a little bit of pinching in his calf."
Dr. Eule referred him for six more weeks of physical therapy
and noted, "He is not able to go back to his work as a
truck driver yet. [But] [i]f they have light duty he can do
24 Later that summer, perceiving Schieber's desire to get
back to work, Dr. Eule referred him for a work hardening
program with John DeCarlo, OTL. Schieber participated but
left the program without completing the last few sessions or
a final functional capacity exam (FCE) because he found the
experience "too confining." As he put it,
"people was [sic] always around me, and you know, asking
me questions. And I never communicated with people that
25 In notes from Schieber's last work hardening session
on September 27, 2013, DeCarlo wrote, "his pain
complaints have been almost nonexistent most recently. I do
anticipate return to work at full duties as a heavy equipment
26 The same day, Schieber told Dr. Eule he had
"accomplished what he need[ed] to" with work
hardening and was "ready to get back to work."
However, he had come to the realization that "he
need[ed] to do something less laborious than what he ha[d]
done in the past." Dr. Eule agreed, later testifying
that people who have had injuries significant enough to need
back surgery do not usually go back to heavy-labor-type jobs.
Dr. Eule declared Schieber at maximum medical improvement
(MMI) in relation to his spine issues, referred him for an
impairment rating for his back and his left shoulder, and
released him back to work with the standard restrictions he
gave anyone with a back problem that had required surgery,
including no lifting over 50 pounds, and limited bending,
lifting, and stooping.
27 On October 10, 2013, Schieber underwent an impairment
evaluation with Larry A. Levine, MD. He described his pain as
a zero "when he [wa]s not moving around, " and a
five "if he work[ed] or exercise[d]." Dr. Levine
noted no pain behavior and assigned Schieber a 16% whole
person impairment, including 3% for the left-shoulder injury
and 13% for the low-back injury.
28 Liberty paid Schieber the impairment benefit and
terminated Schieber's temporary total disability (TTD)
benefits as of December 9, 2013.
29 On December 16, 2013, Schieber returned to work as a maxi
haul truck driver, hauling ice chips to build roads for oil
companies in the North Slope region of Alaska.
30 On February 13, 2014, Schieber saw Glenn, complaining of
"stabbing" pain in his right buttocks, and
occasional symptoms into his right posterior thigh and calf.
Schieber told Glenn he had been "doing quite well
driving a truck up on the Slope[, ] [but] [t]hey recently
changed him to driving a water truck and he had to get in and
out of the truck and load objects and load the water and this
seemed to exacerbate his symptoms." Glenn found no
significant changes between new lumber spine x-rays and those
taken in 2013. He gave Schieber prescriptions for Mobic and
Zanaflex and told him to get in touch if he was not better in
the coming weeks.
31 Schieber returned to see Glenn on March 18, 2014. He
reiterated that getting in and out of the trucks was
"really taxing on him, " that he "ha[d] had
some increased lower back pain, " and that he
"[wa]s quite miserable." He had stopped working,
did not think he could go back, and inquired about
disability. Glenn noted, "I think at this point he is
capable of doing some type of job, maybe not what he was
doing before, but he should be able to be gainfully employed
somewhere." Glenn ordered a lumbar spine MRI and
prescribed Celebrex for further relief of Schieber's
32 In April 2014, Schieber's claim file at Liberty was
reassigned from Karen Toldness to Jaimie Kern.
33 At a follow-up appointment on April 8, 2014, Schieber told
Glenn he was "quite uncomfortable" and did not
think he could return to his job. Glenn reviewed
Schieber's MRI, concluding, "[Schieber] has
significant right L5-S1 neuroforaminal narrowing that is most
likely causing his ongoing symptoms. . . . [H]e is unable to
return back to work at this point and is seeking out further
treatment options." Glenn suggested an epidural steroid
injection, but Schieber wanted to think about it. Glenn took
him off work pending his next appointment in two weeks.
34 Liberty started paying TTD benefits again as of April 8,
2014, under a reservation of rights.
35 On April 24, 2014, Schieber returned to see Glenn.
Schieber reported that he could not return to work at that
point. He was not interested in doing anymore injections but
wanted to be re-evaluated by Dr. Eule. Glenn kept him off
work pending his appointment with Dr. Eule on May 29, 2014.
But, after splitting up with his girlfriend, Schieber could
no longer afford to stay in Alaska and moved to Kansas before
Treatment in Kansas/Missouri
36 Schieber requested approval from Liberty for Fermin J.
Santos, MD, a physiatrist, to take over his care. However,
when Kern called the office to schedule an appointment, Dr.
Santos would only agree to see Schieber if "it was as an
IME, with the option to take over care." Kern assented.
37 Dr. Santos first examined Schieber on June 9, 2014.
Schieber complained of pain and stiffness in his back and
into his right buttock and constant numbness and tingling in
his feet, worse on the right than the left. His average pain
level was an eight, the pain was continuous, and it was
better when he kept moving and worse when sitting or standing
for long periods of time or driving or doing steps. Dr.
Santos recommended a trial of Gabapentin to treat the
tingling in his feet and put Schieber on light-duty status,
restricted him to sedentary work only, with alternate sitting
and standing as needed for pain control, and indicated he
should lift no more than 20 pounds and drive no more than
three hours consecutively.
38 Shortly thereafter, Dr. Santos reviewed Schieber's
medical record, x-rays, available imaging studies, and last
office visits at Kern's request and responded to a set of
questions she posed by letter. Dr. Santos recommended a
lumbar MRI, with and without contrast, to determine if there
was a "disc herniation, or scar tissue, contributing to
[Schieber's] foraminal stenosis, " as well as an EMG
of Schieber's right lower extremity "for objective
data to evaluate for radiculopathy." He anticipated that
Schieber would be at MMI once the additional workup was done.
39 On July 19, 2014, a lumbar MRI with and without contrast
indicated that Schieber had an "Essentially stable MRI
lumbar spine since 4/2/2014" with "No acute
40 On August 22, 2014, Dr. Santos performed an EMG of
Schieber's right lower extremity. The study was
"Abnormal" and showed that Schieber had
"chronic right L5 radiculopathy." Dr. Santos
recommended a right L5 transforaminal epidural steroid
injection, which he performed on September 10, 2014.
41 At a September 29, 2014, follow-up appointment with Dr.
Santos, Schieber reported "no significant
improvement" after the transforaminal epidural steroid
injection procedure. Dr. Santos kept the same work status and
restrictions in place and, determining that he had nothing
else to offer Schieber from a conservative standpoint,
referred him to Mark Bernhardt, MD, an orthopedic surgeon,
for surgical evaluation.
42 On November 7, 2014, after physical examination and review
of Schieber's x-rays, MRIs, and EMG, Dr. Bernhardt's
impressions included chronic low-back pain and chronic lumbar
radiculitis in the right leg. He returned Schieber to
light-duty work and set permanent restrictions of sedentary
work and alternate sitting/standing as needed for pain
control. He "d[id] not recommend further lumbar spine
surgery." Although Schieber claimed at trial that it was
his own reticence that led Dr. Bernhardt to determine he was
not a candidate for surgery, Dr. Bernhardt thought Schieber
was doing "too well" to consider surgical treatment
and that permanent activity restriction was probably his best
He would require right L5-S1 complete facetectomy and
transforaminal lumbar interbody fusion (TLIF) in an attempt
to resolve his persistent radicular symptoms. All things