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Harned v. State Compensation Insurance Fund6/8/1999
DECISION AND JUDGMENT
This trial in this matter was held on February 26, 1999, in Butte, Montana. Petitioner, Eugene Harned (claimant), was present and represented by Mr. Bernard J. Everett. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. David A. Hawkins.
Exhibits: Exhibits 1 through 17 were admitted without objection. Following the trial, an April 8th, 1999 letter from Dr. Chriss A. Mack's business manager and a January 11, 1999 office note were received by the Court and admitted as Exhibit 18.
Depositions: The parties agreed that the depositions of claimant, James Porta, Dr. Michael Lahey, and Dr. Allen M. Weinert can be considered part of the record.
Claimant was injured at work on June 7, 1996. He suffered a right-sided herniated disk at the L5-S1 level. (Ex. 11 at 1.) His claim for compensation is not disputed.
On December 19, 1996, claimant underwent a " icroscopic laminotomy and disk excision removing herniated disk and disk from L-5/S-1." (Ex. 11 at 12.) Despite surgery claimant has continued to complain of low-back and right leg pain. Dr. Chriss A. Mack, a neurosurgeon, has recommended additional surgery. Other physicians have recom- mended against additional surgery. Based on their recommendations, the State Fund refused to authorize the additional surgery, arguing that it is not reasonable.
In this action, claimant asks the Court to order the State Fund to authorize and pay for the surgery recommended by Dr. Mack. In conjunction with that request, he also seeks temporary total disability (TTD) benefits until the surgery is performed and he fully recovers. If the Court denies those requests, claimant asks the Court to determine that he is permanently totally disabled (PTD) and entitled to PTD benefits. Claimant also seeks attorney fees and a penalty.
The need for surgery is a medical issue. At the commencement of trial, I ascertained that the medical evidence the parties intended to offer was through depositions of Drs. Michael Lahey and Allen M. Weinert and the medical records admitted as exhibits. Having reviewed the depositions and exhibits in advance of trial, I advised the parties that I intended to order the surgery recommended by Dr. Mack on the condition that Dr. Mack reviews the opinions of Drs. Weinert and Lahey and, after considering their opinions, still recommends surgery. Pending Dr. Mack's review, I ordered that claimant be placed on TTD benefits.
In conjunction with my order, I provided counsel with the options of deposing Dr. Mack or obtaining his further opinion on a more informal basis. Counsel have proceeded in an informal fashion. Mr. Hawkins wrote to Dr. Mack asking him to undertake the review requested by the Court. On April 8, 1999, the business manager of Dr. Mack's office replied to that request by forwarding an office note of January 11, 1999. The note reflected a January 11, 1999 conversation between Dr. Mack and Dr. Weinert. In her letter, the business manager wrote:
Per Dr. Mack's request, I am forwarding the last visit (phone call) with Mr. Harned in response to the question you posed in you letter of March 4, 1999.
The letter and Dr. Mack's office note have been marked and admitted as Exhibit 18.
In his January 11, 1999 office note, Dr. Mack reiterates his recommendation of surgery notwithstanding Dr. Weinert's opinions. The note reads in relevant part:
1-11-99 PHONE CALL: I am receipt of a letter from Dr. Weinert who aptly suggested that a repeat microdiscectomy is not likely to resolve Mr. Harned's back pain. I agree with this completely. He clearly h
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