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Burtell v. State Compensation Insurnace Fund3/18/2002
Mrs. Dierks denies any psychological difficulties prior to her industrial accident and again much of her depression appears to be related to the limitations imposed by her pain.
In reference to the questions raised in the October 14, 1993 letter from Elizabeth Horsman-Wiitala, legal counsel, I have had one correspondence from Mrs. Dierks attorney requesting that I see Mrs. Dierks. Beyond this, I have had no contact with this individual. Mrs. Dierks was referred by her attorney.
It is felt that therapy with Mrs. Dierks would be relatively short term. I feel that if she has not had a positive response within ten sessions that it is likely that she would benefit little from ongoing psychotherapy/pain management techniques. (Ex. 2 at 9.)
The letter does not appear in the State Fund file and it appears the State Fund never received it. In a letter dated May 4, 1994, the claims examiner told claimant's counsel that two letters had been directed to Dr. Bateen without response. (Ex. 4 at 60.)
Claimant did not keep her next appointment with Dr. Bateen and never followed up with the agreed treatment. The only record of further sessions with Dr. Bateen is an office note of August 22, 1994, when she sought him out after "her dog died and she felt as though she was 'falling apart.'" (Ex. 2 at 10.) Dr. Bateen's office note states that claimant " ad missed last several appt [appointments]." (Id.) On the other hand, he noted that she " eported she had done well emotional up to this crises." (Id.) He scheduled a further "supportive" session for the next week (id.), but there is no record of claimant ever keeping that appointment.
As with other therapy offered claimant, I can only find and conclude that while Dr. Bateen offered claimant therapy to address her depression, she never followed up with the treatment proffered her.
Although the record is not fully fleshed out, a May 4, 1994 letter from Jacob Bristow, a claims adjuster for the State Fund to Mr. John C. Doubek, claimant's attorney, indicates that the claims adjuster and Mr. Doubek reached an agreement to retroactively reinstate claimant's TTD benefits and bring them up to date, at least as of the date of the letter. The letter, however, goes on to cite the April 30, 1992 MMI finding and notified Mr. Doubek that the reinstated benefits were being terminated in 14 days due to a lack of medical evidence of disability, the prior MMI finding, and approved jobs. (Ex. 4 at 60.)
A review of the State Fund's record of payments shows that in fact benefits were retroactively reinstated on March 8, 1994 and were then terminated in accordance with the May 4, 1994 letter. (Ex. 5.)
Claimant was examined by Dr. Hunter on January 24, 1995, "two years after last being seen." (Ex. 17 at 203; Hunter Dep. at 20.) She reported "continuous right buttock area pain, some pain down into her posterior thigh" and pain "up in her interscapular area and neck." (Ex. 17 at 203.) She was not taking any medication "other than over-the-counter narcotics from Canada." (Id.) Dr. Hunter's medical note reads:
EXAM; Shows her to be moving around quite guardedly. Exquisitely responsive to light touch anywhere around low back or sacral area. Volition ly poor motion. Straight leg raising negative although she is tight in her hamstrings. No obvious neurologic deficits. Talked to her about the problems one visit like this engenders. I would not change the Functional Capacity Evaluation, work evaluation etc. done by Dr. Weinert in the past.
If there is any controversy about Functional Capacity and work capacity, I'd recommend repeat of the FCE etc. She continues to smoke, c
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