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Schieber v. Liberty Northwest Ins. Corp.

Court of Workers Compensation of Montana

September 20, 2019


          Submitted: April 5, 2019



         Summary: 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.

         Held: 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 the evidence.[1]

         Schieber's Background

         ¶ 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.

         Schieber's Injury

         ¶ 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.

         Medical Evidence

         Schieber's 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 orthopedic evaluation.

         ¶ 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 back.

         Schieber's 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 work.

         ¶ 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 that."

         ¶ 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 intensely."

         ¶ 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 operator."

         ¶ 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 symptoms.

         ¶ 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 the appointment.

         Schieber's 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 abnormalities."

         ¶ 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 option:

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 ...

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