Brower v. Valor Ins. Co.

• Decision Date: 25 October 2019
• Docket Number: WCC No. 2019-4596
• Citation: 2019 MTWCC 16
• Parties: PEGGY BROWER Petitioner v. VALOR INSURANCE COMPANY, INC., in liquidation, MONTANA INSURANCE GUARANTY ASSOCIATION Respondent/Insurer.
• Court: Montana Workers Compensation Court

2019 MTWCC 16

PEGGY BROWER Petitioner v. VALOR INSURANCE COMPANY, INC., in liquidation,MONTANA INSURANCE GUARANTY ASSOCIATION Respondent/Insurer.

WCC No. 2019-4596

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: September 17, 2019

October 25, 2019

ORDER DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT

Summary: Petitioner moves for summary judgment, asserting that Respondent remains liable for her cervical problems because the insurer accepted liability for her "cervical condition" in the early 2000s and there is no evidence that she suffered a permanent aggravation. Petitioner also asserts that Respondent is estopped from denying liability and has waived its right to contest coverage through representations, which Petitioner understood to mean that the insurer had accepted liability for all of her cervical problems and that she would have coverage for all problems with her cervical spine.

Held: Petitioner is not entitled to summary judgment because there are issues of fact as to whether her current cervical problems — which are degenerative disk disease with radiculopathy and spondylosis — are the same condition for which the insurer accepted liability or a natural progression of that specific condition, which was arguably limited to a herniated disk at C5-6. Respondent is not estopped from contesting liability because neither it nor the insurer represented that the insurer had accepted liability for every problem in Petitioner's cervical spine or that Petitioner had coverage for every problem she would develop in her cervical spine.

¶ 1 Petitioner Peggy Brower moves for summary judgment, arguing that Valor Insurance Company, Inc. (Valor) accepted liability for her cervical spine condition in the early 2000s and that Respondent Montana Insurance Guaranty Association (MIGA) is now attempting to deny liability for the cervical problems for which liability was accepted. Brower also argues that she is entitled to summary judgment because Valor and MIGA represented that her cervical condition would be covered.

¶ 2 MIGA urges this Court to deny Brower's motion because she has not carried her burden of proving that her current cervical problems are the same condition for which Valor accepted liability. MIGA also denies that there have been representations from which Brower could have reasonably believed that Valor accepted liability for every problem in her cervical spine or that she had coverage for every problem she could develop in her cervical spine.

¶ 3 Because there are issues of material fact, this Court denies Brower's summary judgment motion.

FACTS

¶ 4 In June 2002, Brower filed a First Report of Injury or Occupational Disease. She complained of right shoulder pain.

¶ 5 At that time, Valor insured Brower's employer, First Interstate Bank.

¶ 6 In 2003, Valor became insolvent and MIGA is now liable for Brower's claim.

¶ 7 Brower's treating physicians initially thought that she had a shoulder injury. However, a shoulder surgery did not provide any relief. Brower's treating physicians then thought she had thoracic outlet syndrome. However, thoracic outlet surgery did not improve her condition.

¶ 8 An MRI on September 2, 2003, showed, "Diffuse degenerative dis[k] disease in the cervical spine with the epicenter at C5-6 with some involvement at C6-7. There is an eccentric protruding dis[k] at 5-6, which causes a ventral impression upon the thecal sac and slight narrowing of the neural foramina at that point."¹

¶ 9 On October 1, 2004, a panel of physicians generally diagnosed "cervical spine disease," and specifically diagnosed "right C6 radiculopathy associated with a herniated disk at C5-C6 to the right." The panel opined that the disk herniation at C5-6 was caused by her work. In response to a question asking what the work-related diagnoses were, the panel answered:

Based upon the history obtained from the records, [Brower's] history and our examinations here at Deaconess Billings Clinic, we can conclude that [Brower] clearly has chronic right shoulder, arm and neck pain related to her work as a proof operator. Many of the characteristics of this pain suggesta prominent myofascial pain syndrome related to the prolonged maintenance of her arm in 90 degrees of forward flexion required by her work. In addition, it is possible that a significant portion of her pain has been due to cervical spine disease, particularly right C6 radiculopathy associated with a herniated disk at C5-C6 to the right. Exactly when the disk herniation occurred is uncertain since the first MRI of her neck was not obtained until November 2nd, 2003, at which time the herniated disk at C5-C6 was clearly visible. When all of this information is taken in the context of her persistent pain in her right shoulder, arm and neck, it is very possible that the herniated disk at C5-6 has been present from the beginning of her complaints, and therefore related to her work. We feel that it is quite possible that the cervical spine disease noted above has accounted for at least some of her painful symptoms in the right upper extremity since the beginning of her problem in 2002.²

The panel then distinguished the C5-6 herniated disk from Brower's degenerative process and opined that her herniated disk was caused by Brower's work:

[I]t is quite possible that a significant portion of [Brower's] chronic right shoulder and arm pain are referred pain from her herniated disk at the C5-6 level with compression of the right C6 nerve root. In the absence of evidence to the contrary, it is also likely that the C5-C6 disk herniation is related to her work as a proof operator. Also, as discussed in #1, there appears to be a component of myofascial pain syndrome in her right shoulder, arm and neck. Additional workup is recommended to determine which of these two processes may be contributing to her pain . . . . The surgical procedures on her right shoulder and the surgery for her alleged right thoracic outlet syndrome have not benefitted her and have probably contributed to and/or aggravated her myofascial pain symptoms. Since the first MRI of cervical spine was not obtained until November 2nd, 2003, it is not possible to be definitive in concluding that the C5-C6 disk herniation occurred during her work. However, the character of her pain and the persistence of it and the finding of the C5-C6 disk persistently on not only the November 2nd, 2003, MRI scan, but the MRI scan done more recently on 9/21/04, are strongly suggestive that this C5-C6 disk herniation is causing some of her chronic pain. An alternative explanation for which there is no clear evidence is that the herniated disk at C5-C6 is unrelated to her work and simply associated with cervical degenerative processes. However, the panel feels that this is a less likely conclusion. Thus, on a more probable than not basis, the panel feels that the C5-C6 disk herniationis related to her work as a proof operator and is a likely cause of her persistent painful syndrome.³

¶ 10 In 2006, Brower and Valor settled the wage loss portion of her claim. In relevant part, the Petition for Full and Final Compromise Settlement and Release states:

Disputes subsequently arose concerning ability to work, causation of disability, extent of disability, refusal of certain treatment recommendations, reasonableness and necessity of certain medical treatment, and entitlement to permanent partial versus permanent total disability benefits.

. . . .

Past, present, and future medical benefits are reserved, as limited herein.

In a cover letter to the Employment Relations Division (ERD) in which Valor's attorney recapped the claim history and Valor's position, the attorney stated, in relevant part, "In May 2004, Dr. Galvas noted a cervical dis[k] problem, which was probably the cause of the original shoulder and upper extremity pain. The cervical dis[k] condition has been treated conservatively, most recently by Dr. Bryan, and Insurer understands Petitioner is disinterested in pursuing a surgical remedy for this condition."⁴

¶ 11 At the time she settled, Brower thought that Valor "would provide future medical treatment for my neck injury, and I relied on that fact when I agreed to settle my claim with medical coverage for my neck open."

¶ 12 In 2012, MIGA sent a letter to a physician at the City-County Health Department in Great Falls, asking whether several prescriptions were medically necessary to treat Brower's industrial injury, which MIGA stated "affected her right shoulder, arm and neck."

¶ 13 On August 13, 2015, Brower underwent an examination under § 39-71-605, MCA, with John A. Vallin, MD. Dr. Vallin concluded, inter alia, that Brower had "right shoulder impingement syndrome related to repetitive occupational exposure as an encoder for First Interstate Bank on or around June 17, 2002." However, Dr. Vallin opined that Brower's herniated disk at C5-6 was not caused by her work, nor the cause of her right shoulder pain. Dr. Vallin also opined that Brower did not have "cervical radiculopathy" nor "symptomatic cervical degenerative dis[k] disease/spondylosis."⁵

¶ 14 On July 9, 2018, Brower saw John G. VanGilder, MD. Dr. VanGilder noted that Brower reported "neck pain that's been going on for years" and that an MRI from May 23,2017 "shows degenerative dis[k] disease at C4-5, C5-6, C6-7"⁶ and "bilateral foraminal stenosis at C4-5, C5-6, and left greater than right at C6-7." Dr. VanGilder diagnosed cervical spondylosis and cervical degenerative disk disease with radiculopathy. Dr. VanGilder informed Brower of her options, which included an anterior cervical diskectomy and multilevel fusion. However, Dr. VanGilder did not offer any opinion as to the cause of Brower's cervical spondylosis nor of her degenerative disk disease.

¶ 15 Brower decided to undergo the surgery. However, on July 13, 2018, MIGA denied authorization for the surgery on the grounds that the "work injury is to employee arm and shoulder."

¶ 16 On May 16, 2019, Brower returned to Dr....