 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wilson v. Ace American Insurance Group6/7/2002
eatment of RSD. Dr. Simmons provided the follow-up for Dr. Mohr and, by inference, he also has expertise in RSD. Even if Dr. Hayward is considered the treating physician with respect to claimant's shoulder and RSD conditions, the opinion of a treating physician, while a tie-breaker, Key v. Liberty Northwestern Insurance, 2001 MTWCC 53, 30, is not conclusive, EBI/Orion Group v. Blythe, 288 Mont 356, 359, 957 P.2d 1134, 1136 (1998). I also have to consider claimant's credibility concerning her pain and her failure to seek further treatment for RSD. While I am convinced her complaints are genuine, I am also persuaded they are exaggerated to some extent. After considering all of this, I am not persuaded by Dr. Hayward's opinion. I find that the claimant's neck, shoulder, and RSD conditions do not preclude her from working and that she is able to return to her prior employment with Town Pump but for her herniated disk.
The question of the relatedness of claimant's herniated disk to her March 1999 injury is a more difficult one. None of the physicians who expressed an opinion on the matter had a complete medical history of claimant's back problems. Dr. Hayward, who was unequivocal in his opinion, had the least expertise of the three doctors: both Drs. Sorini and Vallin were far more qualified to render opinions on the issue. Dr. Sorini rendered an opinion that claimant's herniated disk was caused or aggravated by the March 1999 incident, but conceded that prior events, as related to him in cross-examination, could have caused her condition. Dr. Vallin disagreed that the herniated disk was causally related to the March 1999 incident, but had even less knowledge of claimant's medical history than did Dr. Sorini, moreover his examination of claimant was focused on her shoulder and neck, not on her low back.
After considering everything, I am persuaded by a bare preponderance of the evidence that claimant's herniated disk was either caused or aggravated by her March 1999 industrial injury. Dr. Sorini testified that the waxing and waning of claimant's symptoms was not inconsistent with a causal relationship between the condition and the accident. He was never asked if the information concerning her prior history in fact changed his opinion. Dr. Vallin did not address the waxing and waning in a fashion that would allow me to disregard Dr. Sorini's testimony.
Other facts lend some credence to Dr. Sorini's opinion. First, claimant had been virtually symptom free of back complaints for several years prior to her March 1999 injury. Second, claimant reported back pain immediately after the accident and a month later, on April 9, 1999, reported "leg pain which comes and spirals in the front of her leg." (Ex. 37; 27.) While neither party brought this report to the attention of either Dr. Sorini or Dr. Vallin, it seems consistent with the later radiculopathy finding. Thirdly, claimant's predominant problem after her March 1999 accident was her shoulder. Her shoulder pain may have masked her low-back and leg pain.
CONCLUSIONS OF LAW
This case is governed by the 1997 version of the Montana Workers' Compensation Act since that 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).
Claimant has failed to prove that she is permanently totally disabled. Section 39-71-116(24),
Page 1 2 3 4 5 6 7 8 9 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|