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Key v. Liberty Northwest Insurance9/13/2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary:
Claimant fell and strained his low back while at work. Several weeks later he developed right hip pain and his treating physician opined that his fall had made an underlying, pre-existing degenerative hip condition symptomatic and painful. An independent medical examination (IME) physician disagreed but felt that physical therapy which was prescribed for the back injury could have triggered his pain. Claimant has continued to suffer back and right hip pain and is taking significant amounts of narcotic drugs. After another IME found claimant to be at maximum medical improvement (MMI) and the hip condition unrelated, the insurer terminated temporary total disability (TTD) benefits and denied claimant's request for pain clinic treatment recommended by his treating physician. The treating physician and primary IME physician both indicated claimant would benefit from further treatment. The treating physician advocated a pain management program but allowed that physical therapy in conjunction with the program might help. The IME physician advocated physical therapy but allowed that doing it in conjunction with a pain program is appropriate.
Held:
(1) Claimant's hip condition was made symptomatic (painful) by either his industrial injury or the physical therapy he received for the injury and is therefore related to the injury. (2) Claimant is not at MMI since persuasive medical evidence indicates his condition may be materially improved by a pain program evaluation and, if a good candidate, by his participation in a pain program and further physical therapy. (3) The insurer is liable for retroactive and continuing TTD benefits and for a pain evaluation and, if appropriate, a pain program and further physical therapy.
Topics:
Maximum Medical Improvement: General.
Where claimant's pain would be materially improved by his participation in a pain clinic or pain program, he has not reached MMI.
Maximum Medical Improvement: General.
Evaluation and testing to determine what treatment is appropriate is part of treatment. Where further evaluation or testing is necessary to determine whether and what further treatment is appropriate, the claimant is not at MMI.
Maximum Medical Improvement: Pain.
Pain has both physiologic and mental components. Pain receptors are physical parts of the body and are necessary to the sensation of pain. Treatment which significantly reduces or controls pain, and thereby increases mobility, endurance, strength, alertness, and overall functioning is treatment which will materially improve a claimant's condition.
Proof: Conflicting Evidence: Medical.
"As a general rule . . . the testimony of a treating physician is entitled to greater evidentiary weight," although it is not conclusive. Kloepfer v. Lumbermen's Mut. Cas. Co., 276 Mont. 495, 498, 916 P.2d 1310, 1312 (1996). At minimum, the treating physician is the tiebreaker where there is evenly balanced, conflicting medical testimony.
Pain.
Pain has both physiologic and mental components.
The trial in this matter was held on April 9, 2001, in Missoula, Montana. Petitioner, Jason Key (claimant), was present and represented by Mr. Robert K. Ogg. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones.
Exhibits: Exhibits 1 through 3 were admitted without objection.
Witness and Depositions: Claimant was the only witness at trial. In addition, the parties submitted the depositions of James H. Chandler, M.D., Pat
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