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Hams v. Liberty Northwest Insurance Corporation2/10/2000
Hams v. Liberty from hams2
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on December 28, 1999, in Helena, Montana. Petitioner, Loren Hams (claimant), was represented by Mr. Kenneth S. Thomas. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. A trial transcript has not been prepared.
Exhibits: Exhibits 1through 5 were admitted without objection.
Witnesses and Depositions: Claimant and Sandy Scholl were sworn and testified. In addition, the parties submitted depositions of claimant, Dr. Michael Righetti, Dr. Dana Headapohl, and Sandy Scholl for the Court's consideration.
Issues Presented: The issues, as restated by the Court, are as follows:
1. Whether claimant has reached maximum medical improvement.
2. Whether claimant is entitled to temporary total disability benefits retroactive to September 9, 1999, and continuing until he reaches maximum medical healing.
3. Whether respondent is liable for further medical expenses.
4. Whether respondent's termination of claimant's temporary total disability benefits and its failure to authorize a second opinion recommended by the treating physician were unreasonable, thereby entitling claimant to a penalty under section 39-71-2907, MCA, and to attorney fees and costs under section 39-71-611, MCA.
Having considered the PRETRIAL ORDER, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant is presently 38 years old. He has a tenth grade education.
Claimant has worked as a heavy equipment mechanic all of his adult life. He repairs and maintains trucks, bulldozers, and other heavy equipment. His work as a mechanic is heavy work.
On March 5, 1993, claimant was injured in an industrial accident. He was lying under a truck using a cutting torch when a spark or molten metal from the solder rolled down his nose into his throat, causing him to flail about with his arms and body in a frantic attempt to get out from under the truck. In the process he struck and injured his neck, right shoulder and right arm, as well as his nose and throat. (Tr. Test. and see Ex. 1.)
Following his injury, claimant had multiple complaints involving neck pain, headaches, and right arm and hand pain and numbness. His primary diagnoses were right carpal tunnel syndrome, right cubital tunnel syndrome of the ulnar nerve at the elbow, and, ultimately, thoracic outlet syndrome. Over the next three years the claimant underwent three surgeries, specifically, a right carpal tunnel release, right ulnar nerve transposition, and thoracic outlet surgery involving a right 1 st rib resection, scalenotomy, and dissection of a right posterior shoulder muscle. (Ex. 4 at 141; Ex. 5 at 69.)
As a consequence of his injuries, multiple surgeries and slow recovery, claimant became depressed. On October 3, 1995, Dr. Righetti, who performed the right ulnar nerve release in June 1995, recommended a psychological evaluation. (Ex. 4 at 98.)
Claimant was thereafter treated for his depression by Dr. Michael M. Newman, a psychiatrist. Dr. Newman wrote on October 5, 1995:
Mr. Hams presented with severe depression associated with tearfulness, poor sleep, 30 pound weight loss and worthlessness. His depression was precipitated by an accident at his job work which has resulted in his not being able to currently work.
(Ex.
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