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Burtell v. State Compensation Insurnace Fund3/18/2002
note of Dr. Bateen in August 1994 indicates that she had been doing well without treatment, thus indicating that further treatment was unnecessary. She has failed to show that there was reasonable treatment offered or available to her in 1994, or at any time between 1994 and 2000, which would have materially improved her condition or which she was willing to pursue.
When her TTD benefits were finally terminated in 1994, jobs had been approved for her and the Rehabilitation Panel had issued a final determination that her return to work in a related occupation was appropriate. That determination was not appealed and was therefore conclusive. It cannot be collaterally attacked here. Moreover, jobs were approved both medically and vocationally prior to termination of TTD benefits. Those approvals were never revoked. Claimant has presented no evidence, other than her own testimony, that she was not medically or vocationally qualified for the identified jobs. In light of claimant's poor record with physical therapy and involvement in her own treatment, as well as my own assessment of her credibility, I am not persuaded that she was physically unable to perform sedentary to light work.
Finally, I did not find claimant's testimony, including her excuses for failing to follow recommended treatment and for not working, persuasive. Based on review of the entire record, and having observed claimant's testimony, I am persuaded that the medical and physical therapy records, and the testimony of Dr. Hunter, present an accurate portrayal of claimant's situation. The record is replete with evidence that claimant did not cooperate with recommended treatment. There are numerous references, in the records of Dr. Hunter, Dr. Weinert, and physical therapists, of symptom exaggeration, as well as a non-organic and/or non-dermatomal pain patterns. Claimant did not follow up with recommended psychological counseling. She impressed me as having little motivation to work. Although claimant's case is premised on the notion that she "should have" received surgery much earlier and therefore was not at MMI, I am persuaded surgery was not appropriate until May, 2000.
I am persuaded, however, that as of May 3, 2000, the date on which she first saw Dr. Iverson, she was no longer at MMI. At that point, her condition had deteriorated to the point that she again sought medical care. The subsequent MRI disclosed a significant worsening of her disk protrusion, making surgery appropriate. Based on these facts and the recommendation for and actual undertaking of surgery, I find that as of May 3, 2000, the claimant's condition had worsened to the point that further treatment, i.e., surgery, would materially improve her condition.
CONCLUSIONS OF LAW
This case is governed by the 1989 version of the Montana Workers' Compensation Act since it was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that she is entitled to the benefits she seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
Section 39-71-701(1) , MCA (1989), provides that "a worker is eligible for temporary total disability benefits when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing." Subsection (2) states that the "determination of temporary total disability must be supported by a preponderance of medical evidence." (Emphasis added.)
Maximum medic
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