Ford v. Sentry Cas. Co.

Decision Date24 July 2012
Docket NumberNo. DA 11–0427.,DA 11–0427.
Citation2012 MT 156,282 P.3d 687,365 Mont. 405
PartiesRichard FORD, Petitioner and Appellant, v. SENTRY CASUALTY COMPANY, Respondent and Appellee.
CourtMontana Supreme Court


For Appellant: Patrick R. Sheehy, Halverson, Sheehy & Plath, P.C., Billings, Montana.

For Appellee: Kelly M. Wills, Jeffrey B. Smith, Garlington, Lohn & Robinson, PLLP, Missoula, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

[365 Mont. 406]¶ 1 Richard Ford suffered a work-related injury to his neck. He was diagnosed with a cervical strain, and Sentry Casualty Company accepted liability and paid benefits for this injury. During Ford's treatment, he underwent an MRI which revealed a more serious cervical disc condition. Ford claimed that the workplace accident caused or aggravated this condition and that Sentry was liable for surgery to address it. Ford also claimed that Sentry was liable for ongoing temporary total disability benefits and that Sentry had unreasonably adjusted his claim.

¶ 2 Sentry denied liability for Ford's cervical disc condition based on the opinions of several doctors that the condition was not related to the industrial accident. Sentry also maintained that Ford has reached maximum medical improvement, that he has been released to return to work without restrictions, and that it reasonably adjusted his claim. The dispute ultimately reached the Workers' Compensation Court (WCC). Trial was held January 28, 2011. Ford and his wife testified, and numerous medical records were admitted into evidence. The WCC ruled in favor of Sentry as to each of the foregoing issues, and Ford now appeals.

¶ 3 The issues and sub-issues raised on appeal are as follows:

1. Whether the WCC erred in determining that Sentry is not liable for medical bills and treatment involving Ford's cervical disc condition.

A. Whether the WCC applied an incorrect standard of proof on the question of causation.

B. Whether the WCC erred in relying solely on medical opinions to determine causation and aggravation.

C. Whether the WCC erred in concluding that Ford had not adequately demonstrated that the industrial accident caused or aggravated his cervical disc condition.

2. Whether the WCC erred in determining that Sentry is not liable for ongoing temporary total disability benefits.

3. Whether the WCC erred in determining that Sentry is not liable for costs, attorney's fees, or a penalty.

We affirm as to all three issues. In so doing, we clarify the standards and analysis for determining a casual connection between a claimed injury and a workplace accident.

Circumstances of Ford's Injury

¶ 4 At the time of the accident, Ford was 38 years old and employed as a yard worker with Pacific Hide and Fur in Billings. Pacific Hide and Fur was enrolled under Compensation Plan No. 2 of the Workers' Compensation Act and insured by Sentry. On September 29, 2009, Ford was working when the baler jammed. This machine takes scraps of metal, which enter on a conveyor belt, and compresses them into a solid bale of metal similar to a bale of hay. Ford and his coworkers were unable to dislodge the jammed metal using a cutting torch, so they attempted to pull the metal out of the baler using a Ford Ranger pickup truck and a tow chain. They attached one end of the chain to the metal and the other end to the tow hook on the front of the pickup. Ford got into the pickup, put it in reverse, gave it gas, and popped the clutch. The jammed metal did not budge. As a result, when the tow chain became taut, the pickup came to an abrupt stop, actually coming off the ground, and Ford's head “snapped back” with such force that his hard hat flew into the back of the crew cab pickup. Ford attempted this maneuver at least two more times, with the same results. Eventually, he and his coworkers dislodged the metal using a Volvo loader.

¶ 5 On the way home after his shift, Ford felt an ache in the back of his neck down into his shoulders and felt stiff and sore. He felt the same way the next morning and also had a headache. Although he had experienced occasional headaches in the past, Ford did not have neck problems and had never sought medical treatment for headaches or neck pain prior to this incident. Ford advised his supervisor of his condition and sought medical care at a clinic in Billings.

¶ 6 Over the ensuing months, Ford was seen by a slew of different doctors due to ongoing complaints of headaches, neck pain, and numbness and tingling in his fingers. After learning the results of his MRI, and based on discussions with one of his doctors, Ford concluded that he should undergo surgery to address his cervical disc condition. The question then arose as to whether this condition was causally related to the accident of September 29. Ford's doctors were not in unanimous agreement on this point, and it therefore became necessary for the WCC, and now this Court, to review the various medical opinions, and the bases therefor, in some detail.

Medical Evaluations and Opinions

¶ 7 Ford was first seen by Adam Mattingly, a physician assistant at the Billings clinic, on September 30, 2009. Mattingly diagnosed Ford has having suffered a cervical strain. He recommended physical therapy and certain restrictions on Ford's physical activities. Ford did not find the physical therapy beneficial, however, and continued to complain of neck pain and intermittent numbness and tingling in his fingers.

¶ 8 Ford underwent a cervical MRI on October 20. The MRI revealed degenerative changes in Ford's cervical spine, most significantly at the C5–6 and C6–7 levels. There was disc desiccation, disc space narrowing, posterior bony ridging and disc bulge, and a foraminal disc herniation which compromised the right neural foramen.

¶ 9 Mattingly referred Ford to a neurosurgeon, Eric Schubert, M.D., who saw Ford on three occasions in November and December 2009. Based on Ford's medical history, the MRI results, and a neurological examination, Dr. Schubert opined that the degenerative changes shown on Ford's MRI “were certainly present” before the work-related accident, with the possible exception of a disc protrusion or herniation at the C5–6 level which Dr. Schubert stated “may have occurred” at the time of the accident. Dr. Schubert theorized that Ford had an underlying asymptomatic degenerative lesion which “could have become” symptomatic as a result of the accident. He noted, however, that Ford's cervicalcondition did not fit with his complaints of numbness and tingling in his fingers, i.e., there was “some mismatch of his radicular symptoms with the cervical pathology.”

¶ 10 Dr. Schubert opined that surgery may have “some role” in Ford's treatment, but he advised Ford that he wanted to exhaust nonsurgical treatment options first. Dr. Schubert recommended a cervical epidural steroid injection. When this did not provide relief, he ordered a second epidural steroid injection and recommended that Ford undergo bilateral electromyography and nerve conduction velocity (EMG/NCV) studies of the upper extremities. Ford underwent the EMG/NCV studies on December 4. The studies did not reveal any evidence of radiculopathy (i.e., disease of the spinal nerve roots from inflammation or impingement) or other neuropathies in either arm.

¶ 11 Dr. Schubert reevaluated Ford on December 23. Based on Ford's report that his symptoms still persisted, and given the fairly significant findings on the MRI, Dr. Schubert concluded that “the better part of valor is to offer surgery and, if [Ford] wishes, to proceed with surgical treatment” (specifically, a two-level anterior cervical discectomy and fusion at C5–6 and C6–7). Dr. Schubert noted that he had reviewed the MRI images with another neurosurgeon who agreed that Ford's cervical pathology “should be fixed.” Dr. Schubert advised Ford, however, that the potential benefit of surgery was about a 50 percent chance of significant improvement in his neck pain and no likely change in his hand symptoms.

¶ 12 Meanwhile, at Mattingly's request, Ford was evaluated by Scott Ross, M.D., an occupational medicine specialist, who became Ford's treating physician and continued to evaluate Ford on roughly a monthly basis. At their first visit, on December 4, Dr. Ross thoroughly reviewed Ford's available medical records, questioned Ford about his current status, and conducted a physical examination. Dr. Ross noted that Ford was continuing to report pain in the posterior neck region, but there was “no point localization or point specificity” to the complaints. Nor was there any “consistent pattern or periodicity” to the complaints; rather, they vary from day to day per his report.” Dr. Ross inspected the posterior region of Ford's neck and found no redness, puffiness, swelling, discoloration, edema, or bony step-off in the midline. When Dr. Ross made light touch palpations in the neck region, Ford gave “exaggerated/embellished” pain responses (in Dr. Ross's opinion). As for Ford's appearance and mobility, Dr. Ross observed that

Mr. Ford is seated comfortably in the exam chair during today's lengthy interview. He does not shift about uncomfortably, nor does he appear uncomfortable. Throughout the interview, he is freely and fully moving his head and neck. He is able to easily rotate and extend his neck when looking up at the “Pain Chart” mounted on the exam room cupboard, performing this task without limitation or pain complaint. He stands without assistance, difficulty, or pain complaint. He is able to dress/undress without assistance or difficulty. He moves about during today's examination without difficulty or pain. He doffed his long sleeved T-shirt without difficulty, using both upper extremities—no pain complaints. At the conclusion of today's physical examination, he donned his long sleeved T-shirt without difficulty, and donned his jacket without difficulty, utilizing both upper extremities. He also donned...

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