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Munroe v. Montana Electric & Telephone Pool8/16/2001
May 16, 1997 industrial accident, and even then his opinion was not on a more-likely-than-not basis. He testified only that her current spinal symptoms are "not inconsistent" with the history she provided concerning her May 1997 accident. This testimony falls short of constituting an affirmative medical opinion, on a more-probable-than-not basis, concerning causation. Moreover, Dr. Finney took claimant at her word concerning her history. One of the things she told him was that all of her various pains commenced immediately after her fall, a statement that the Court has found is contradicted by medical records and is untrue. Drs. Goodman and Peterson, on the other hand, provided medical opinions that the cervical, thoracic, and lumbar conditions were not related to the May 1997 fall. Dr. Bonfilio testified that the proposed surgeries were not related to the fall. Their opinions are supported by their references to claimant's medical history and numerous prior imaging studies. They are the more persuasive. Claimant has failed to persuade me that her spinal conditions or the proposed surgeries are related to her May 1997 industrial accident.
Moreover, notwithstanding Dr. Finney's opinions, there is persuasive medical evidence from both Dr. Gorsuch and Dr. Goodman that claimant's clinical pain complaints, which are on her right side, are not related to the MRI findings of possible left-sided impingement at the cervical level. Based on Dr. Goodman's testimony, the same is true with respect to the thoracic level.
Consistent with the foregoing findings, I further find that the three level surgery proposed by Dr. Finney in late 1999 is not related to the claimant's May 1997 industrial accident.
Even if the proposed surgeries were related to the claimant's May 1997 industrial injury , I find that the proposed surgery at the thoracic level is not reasonable and that the cervical surgery is purely elective. Again, in the face of testimony by four other experienced and well qualified physicians, I am unpersuaded by Dr. Finney's testimony that the thoracic surgery is safe or that the cervical surgery is essential.
I further find that claimant has reached MMI with respect to her shoulder injury . Dr. Peterson found at the time of his examination of claimant on December 7, 1999, that she was at MMI. (Ex. 5-L at 6.) Dr. Goodman expressly agreed with Dr. Peterson. (Ex. 5-T at 7; Goodman Dep. at 30.) Most importantly, Dr. Bonfilio, who treated claimant's shoulder and performed the shoulder surgery, found claimant at MMI on October 20, 1999. (Ex. 4; Ex. 5-J at 17.) Claimant lost no time from her Sun River job prior to October 20, 1999, and her employment ceased at the end of October because she was technologically displaced and laid off work.
Finally, I find that the insurer has not acted unreasonably in refusing to authorize Dr. Finney's proposed surgery or accept liability for conditions other than claimant's shoulder conditions or in denying temporary total disability (TTD) benefits.
CONCLUSIONS OF LAW
The 1995 version of the Workers' Compensation Act applies to this claim as that was the law in effect at the time of the alleged injury . Buckman v. 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 additional benefits she seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973).
Under the 1995 Workers' Compensation Act, and, for that matter, under other versions of the Act, an insurer is liable only for medical conditions which were caused or aggravated by the industrial
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