Berry v. Mid Century Ins. Co.

• Decision Date: 29 May 2020
• Docket Number: WCC No. 2018-4387
• Citation: 2020 MTWCC 10
• Parties: AMBRONINE BERRY Petitioner v. MID CENTURY INSURANCE COMPANY Respondent/Insurer.
• Court: Montana Workers Compensation Court

2020 MTWCC 10

AMBRONINE BERRY Petitioner v. MID CENTURY INSURANCE COMPANY Respondent/Insurer.

WCC No. 2018-4387

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: June 4, 2019

May 29, 2020

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Summary: Respondent accepted liability for Petitioner's lumbar-spine injury, which, based on an MRI, her then-treating physician diagnosed as "discogenic spinal pain." Then, using the false pretense that Petitioner was seeing a "specialist" for treatment, Respondent had Petitioner undergo an IME and then asserted that it was not liable for her lumbar-spine injury on the grounds that Petitioner did not actually suffer a lumbar-spine injury. Thereafter, Petitioner asserted that she suffered a separate hip injury in her industrial accident. After the first day of trial, Respondent re-accepted liability for Petitioner's lumbar-spine injury and accepted liability for her hip injury. Petitioner asserts that she is entitled to a penalty and her attorney fees.

Held: Respondent's denial of liability for Petitioner's lumbar-spine injury from July 22, 2017, to April 24, 2019, was unreasonable. Therefore, Petitioner is entitled to a 20% penalty on the medical benefits paid for her lumbar-spine injury during that period. However, Petitioner did not prove that Respondent unreasonably delayed acceptance of liability for her hip injury. Therefore, she is not entitled to a penalty on the medical benefits for her hip injury. Petitioner is not entitled to her attorney fees because this Court did not adjudicate the dispute over her medical benefits.

¶ 1 The first day of trial was held on April 16, 2019, in Kalispell. Petitioner Ambronine "Amber" Berry was present and represented by Miva VanEngen. Respondent Mid Century Insurance Company ("Mid Century") was represented by Mark W. Buckwalter. Erin Mustoe, claims adjuster for Mid Century, was also present.

¶ 2 On April 24, 2019, before the second day of trial, Mid Century notified this Court "of its continued acceptance of medical benefits for Petitioner Amber Berry's lower back and acceptance of medical benefits for Petitioner's hip condition." Because the only dispute over benefits was "Petitioner's entitlement to medical benefits through the date of hearing," the parties did not call any other witnesses.

¶ 3 On May 7, 2019, the parties gave closing arguments on the remaining issues, i.e., whether Berry is entitled to a penalty under § 39-71-2907, MCA, and whether she is entitled to her attorney fees and costs under §§ 39-71-611 or -612, MCA. This Court allowed post-trial briefing on the issue of whether there was still a justiciable controversy over Berry's claim for medical benefits.

¶ 4 Exhibits: This Court admitted Exhibits 1 through 4, 7 through 24, 30 through 32, and 35 through 40. The parties did not offer exhibits 5, 6, 25, 26 through 29, and 41 through 44. This Court did not admit Exhibits 33 and 34.

¶ 5 Witnesses and Depositions: Steven R. Biggs, DC, MD, DABCO; Mary Jane Barrett, RN; Mustoe; and Berry were sworn and testified at trial. No depositions were taken.

¶ 6 Issues Presented: The Pretrial Order sets forth the following issues:

Issue One: Petitioner's entitlement to medical benefits through the date of hearing.

Issue Two: Whether Respondent's failure and refusal to cover Berry's medical expenses after July 22, 2017, was reasonable.

Issue Three: Petitioner's entitlement to a penalty, reasonable attorney fees and costs for each delay and refusal of liability by Respondent which this Court finds unreasonable.

FINDINGS OF FACT

¶ 7 The following facts are established by a preponderance of the evidence.

¶ 8 On February 9, 2017, Berry had the sudden onset of low-back pain, with pain radiating into her right leg, while shoveling snow in the course of her employment.

¶ 9 Berry's employer sent her for treatments with Dr. Biggs, who practices under his chiropractic license. Berry complained of bilateral low-back pain with pain radiating into her right leg. Dr. Biggs diagnosed, "Segmental and somatic dysfunction" of the lumbar and sacral regions, and "Sacroiliac joint dysfunction."

¶ 10 After Dr. Biggs recommended an MRI to rule out a herniated disc, Berry completed a First Report of Injury or Occupational Disease. In the "Description of Accident" box,Berry wrote, "3.5 hrs of snow removal - hurt my L4 + L5." Berry's employer also completed a First Report of Injury or Occupational Disease, stating that Berry "strained" her back.

¶ 11 On March 28, 2017, Berry saw Ned A. Wilson, MD, complaining of "acute onset back and bilateral lower extremity pain while shoveling snow February 9, 2017." Berry also complained of "upper extremity dysesthesia with radiation into the hands bilaterally," which began four days before her appointment. Dr. Wilson made two diagnoses. First, Dr. Wilson diagnosed Berry with "back and bilateral lower extremity pain status post work-related injury February 9, 2017." For this diagnosis, Dr. Wilson stated:

I'd recommend lumbar MR scan for further evaluation. Treatment recommendations will follow. I will allow her to return to work with 10 pound lifting restriction. I cannot determine when she'll reach maximum medical improvement or what other treatments can be indicated at this time.

Dr. Wilson also diagnosed "upper extremity dysesthesia" but stated, "I do not think that the upper extremity symptoms are work-related [and] therefore would be under liability other than Workers' Compensation."

¶ 12 On March 29, 2017, Mid Century accepted liability for Berry's lumbar-spine injury.

¶ 13 The MRI of Berry's lumbar spine revealed, a "[b]road-based disc bulge and annular fissure eccentric to the right at L4-L5 with a shallow right posterolateral disc protrusion which abuts the descending right L5 nerve root," and a "[s]hallow right posterolateral disc protrusion and annular fissure at L5-S1 which abuts the descending right S1 nerve root."

¶ 14 Berry returned to Dr. Wilson on April 10, 2017. Dr. Wilson determined that the MRI showed: "mild desiccation L4-5, L5-S1 with right-sided annular tears L4-5 and L5-S1. No significant disc herniation. No significant canal or foraminal compromise." Dr. Wilson diagnosed Berry with "discogenic spinal pain." Dr. Wilson told Berry that the symptoms of discogenic spinal pain typically improve over time, but that he could not predict when. Dr. Wilson did not think that Berry was a candidate for a spinal injection or surgery. Dr. Wilson prescribed a course of physical therapy for his diagnosis of "annular tear L4/5 and L5-S1." Dr. Wilson stated, "When she plateaus with regard to progress in physical therapy, I believe she'll be at maximum medical improvement and she will likely require a functional capacity exam."

¶ 15 Mid Century authorized the course of physical therapy. Mary Jane Barrett, the nurse case manager Mid Century had assigned to Berry's claim, notified the physical therapist that, "Ms. Berry is authorized for physical therapy for lumbar spine [condition] deemed work related by Dr. Ned Wilson."

¶ 16 Berry was still treating with Dr. Biggs. In his treatment note dated June 21, 2017, Dr. Biggs noted for the first time that Berry complained of bilateral hip pain, left greater than right.

¶ 17 Berry had an appointment with Dr. Wilson on July 17, 2017. In the waiting area, Berry spoke with Barrett, who was there to attend the appointment. Berry told Barrett that she was frustrated with Dr. Wilson because she did not think he was providing adequate care and because she felt that he was dismissive of her and her complaints of pain. Berry told Barrett that she was going to "confront" Dr. Wilson.

¶ 18 During the appointment, Dr. Wilson recommended that Berry continue with physical therapy and, thereafter, transfer to either a primary care physician or a pain management clinic. Berry became angry. Thus, Dr. Wilson recommended that she transfer to another treating physician. Barrett told Dr. Wilson and Berry that she would "facilitate" the transfer of care. Dr. Wilson's record states:

Patient comes in today for followup regarding work-related back pain. It appears that she started physical therapy June 20, 2017. She's had 11 visits and she indicates there [has] been some improvement. I discussed continuing physical therapy until she plateaus in this regard.

She seems frustrated by my recommendation.

She requested a prescription for [a] lidocaine patch.

I think . . . given her symptoms and marginal progress it's likely that she'll be looking at medical pain management. I explained that I did not provide medical pain management and would recommend referral to either primary care or pain management clinic to facilitate this.

She became angry with my answer out [sic] and felt I was not providing the care that she expected.

Therefore, at this time I would recommend that her care be transferred to the physician that she feels provides the care that she is looking for.

Mary Jane Barrett, case manager was present for the entire visit and confirm[ed] that she would facilitate transfer.

Barrett had Dr. Wilson sign a form, and then spoke with Berry. Barrett told Berry to call Mustoe to get authorization to transfer to a new treating physician.

¶ 19 However, Barrett, who acted as an advocate for Mid Century throughout Berry's claim, had no intention of facilitating Berry's transfer to a new treating physician. Thus,after this appointment, Barrett sent an email to Mustoe and Victor Frech, the claims examiners at Mid Century, stating:

Erin and Victor, If this woman/IW contacts you to request authorization for anything. [D]o not. We saw the doctor today. She has had 11 therapy visits. There are no medications and no objective clinical exam findings which is a necessary criteria [sic] in Montana. Her diagnosis is back pain which is a diagnosis of subjective report of back pain. I will call you tomorrow, Erin.

¶ 20 In their telephone conversation, Barrett and Mustoe discussed how to proceed. Rather than transfer Berry to another...