Maldonado v. Cont'l Cas. Co.
| Decision Date | 22 April 2020 |
| Docket Number | WCC No. 2019-4582 |
| Citation | 2020 MTWCC 6 |
| Parties | PATTI J. MALDONADO Petitioner v. CONTINENTAL CASUALTY CO. Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: The parties dispute whether Petitioner is permanently totally disabled and, therefore, entitled to additional medical benefits notwithstanding the passage of 60 months since the diagnosis of her OD. Petitioner contends that she is permanently totally disabled because her difficulty breathing and fatigue, which are the result of a workplace exposure to allergens, prevent her from physically performing regular work. Respondent contends that her subjective complaints are not credible because they cannot be explained by the objective measures of Petitioner's condition. Her treating physician deferred to the IME physician, the IME physician approved 12 JAs based on Petitioner's restrictions, and the CRC testified that Petitioner is qualified and competitive for each one.
Held: Petitioner is not permanently totally disabled and is, therefore, not entitled to additional medical benefits under § 39-71-704(1)(f)(ii), MCA. Petitioner is physically capable of performing at least two of the approved JAs based on the objective measures of her condition.
¶ 1 The trial in this matter was held on July 16, 2019, in Helena, Montana. Petitioner Patti J. Maldonado (Patti) was present and represented by Bernard J. Everett. Thomas A. Hollo and Todd A. Hammer represented Respondent Continental Casualty Co. (CNA).
¶ 2 Exhibits: This Court admitted Exhibits 101, 105 through 114, and 116 through 127 without objection. CNA withdrew Exhibits 103-1, 103-2, and 103-3. This Court overruled Patti's hearsay objections to Exhibits 102 and 103-4 through 103-20 and admitted those Exhibits. This Court overruled Patti's relevancy objection to Exhibits 104 and 128 and admitted those Exhibits. This Court sustained Patti's objection under M.R.Evid. 704 as to any statements in Exhibit 115 made by Dana Headapohl, MD, MPH, regarding Patti's disability status and will not consider those statements. This Court did, however, admit Exhibit 115 subject to that exception.
¶ 3 Witnesses and Depositions: This Court admitted Patti's two depositions, as well as the depositions of Raymond Maldonado (Ray), Michael DiCello, MD, and claims adjuster Teri Bohnsack into evidence. Patti, Ray, Dr. Headapohl, and Bonnie Hale, CRC, were sworn and testified at trial.
¶ 4 Issues Presented: The Pretrial Order sets forth the following issue:
Is Patti Maldonado permanently totally disabled as defined by the Montana Workers' Compensation Act as the result of her occupational disease and therefore, entitled to continued medical benefits?
¶ 5 This Court finds the following facts by a preponderance of the evidence.
¶ 6 Patti is 58 years old. She and her husband Ray have been married for 37 years. For most of their marriage, Patti did around 90% of the household cooking, washing, and cleaning. She also enjoyed caring for the flowers in her garden.
¶ 7 Patti is a high school graduate with no further education or vocational training.
¶ 8 Following graduation in 1979, she began working for Downey Drug, which was later bought by Horizon Pharmacy, in Butte. Her positions, including clerk, cashier, and manager, had her ordering, buying, reviewing, and pricing merchandise, stocking shelves, providing customer service, ringing up purchases, answering phones, and assisting the pharmacists. She estimated that she spent 20% of each work day as a cashier and 20% answering phones. The pharmacy went out of business in 2000.
¶ 9 Patti went to work for Brenda's Florist in Butte in October of the same year. There, her responsibilities included arranging flowers, taking care of plants, placing wholesale orders, processing and pricing merchandise, taking inventory, providing customer service, ringing up purchases, using a computer to enter orders, and answering the phone. She spent a couple hours on the cash register and computer, and around several hours on the phone each day she worked.
¶ 10 Her hours at Brenda's Florist fluctuated with the seasons. She worked part-time for most of the year, i.e., nine hours a day for around four days a week, and full-time for about two months a year around the holidays, i.e., nine hours a day for between five and seven days a week.
¶ 11 She joined Fuel Fitness in 2011 and, for several years, went to the gym about four or five times a week. Each session, she regularly spent 20 minutes walking on the treadmill and 20 minutes lifting weights.
¶ 12 At some point in the latter half of 2013, Patti developed breathing problems at Brenda's Florist and stopped working as a result.
¶ 13 In early November of 2013, Patti was evaluated by Michael C. DiCello, MD, at Allergy & Asthma Consultants of Montana for difficulty breathing. He determined that Patti was allergic to multiple airborne substances, including molds and pollens, and treated her with inhaled bronchodilators for extrinsic asthma and an antibiotic for bronchitis.
¶ 14 In late November of 2013, Patti saw Frederick W. Kahn, MD, at St. Vincent Sleep and Respiratory Center. Rather than classic asthma, Dr. Kahn suspected bronchiolitis. He prescribed a different antibiotic with anti-inflammatory effects and ordered serologic tests for autoimmune and hypersensitivity lung disorders.
¶ 15 Around this time, Patti filed an occupational disease (OD) claim for her respiratory problems. CNA, which insured Brenda's Florist, accepted liability for aggravation of sinusitis and rhinitis.
¶ 16 By the end of 2014, Dr. Kahn theorized that Patti's floral shop exposure to antigens had set off an allergic reaction, which caused her lung and sinus disorders.
¶ 17 In early 2015, Dr. DiCello started Patti on a trial of an injectable asthma medication. Within a few months, Patti told Dr. Kahn she had seen improvement in her wheezing, coughing, and shortness of breath, requiring less frequent use of her inhalers. He documented that her pulmonary function tests (PFTs) were normal and stable and encouraged Patti to increase her activity as she was able. Patti told Dr. DiCello that she was doing better but was not yet at 100%.
¶ 18 On September 16, 2015, Dr. Kahn declared Patti to be at maximum medical improvement (MMI).
¶ 19 On November 4, 2015, Dr. Headapohl conducted an independent medical examination (IME). She diagnosed Patti with the following work-related conditions: allergic bronchopulmonary aspergillosis; probable hypersensitivity pneumonitis (and history of same) secondary to aspergillus exposure; and chronic pansinusitis. Dr. Headapohl determined that for each of her work-related conditions, Patti had reached MMI. In addition to having to avoid the provoking allergens, Dr. Headapohl opined that Patti would likely require ongoing treatment with asthma medications and Prednisone during periods of exacerbation.
¶ 20 Dr. Headapohl assessed Patti as having an 8% whole person impairment under the 6th Edition of the AMA Guides and gave her permanent work restrictions to avoid work environments with airborne irritants or sensitizers, excessive cold or humid conditions, and jobs requiring aerobic activities. With those restrictions in mind, Dr. Headapohl approved three job analyses (JAs).
¶ 21 In early 2016, Patti started complaining of fatigue and muscle and joint pain. Under Dr. Kahn's direction and Dr. DiCello's agreement, she discontinued her injectable asthma medication in the hopes that these were just side effects. Nevertheless, these symptoms persisted.
¶ 22 Meanwhile, although her PFTs were stable, Patti's lower airway symptoms — triggered by exposure to aeroallergens, cold air, high relative humidity, temperature changes, and tobacco and wildfire smoke, as well as sinus disease, uncontrolled acid reflux, respiratory illness, physical exertion, laughing, and crying — continued to bother her.
¶ 23 On July 27, 2016, Patti filed a Petition for Hearing in this Court, contending she is permanently totally disabled as a result of her OD.
¶ 24 On August 26, 2016, Patti gave a deposition. She testified that she had looked for jobs since she left Brenda's Florist, but she did not really feel she was able to work. She specifically testified that she did not think she could work at any job, whether full- or part-time. Patti explained that since 2013, she had gone from doing 90% of the household tasks to about 60%, although she still did most of the cooking, laundry, cleaning, and grocery shopping. She had difficulty going up and down the stairs and had tried to limit the number of times she did so to twice a week. She could still do her ADLs, like fixing her hair and making the bed, independently but not as well as she used to, and could only manage to take a six-block walk once a week with frequent breaks. She had maintained her driver's license and was still capable of driving. For enjoyment, she watched her infant grandchild on occasion and had visited her sister in Arizona in 2015.
¶ 25 On October 24, 2016, having reviewed Patti's and Ray's depositions, Dr. Headapohl produced a supplemental report in which she approved three additional JAs.
¶ 26 In December of 2016, the parties entered into a Joint Stipulation for Entry of Judgment and Dismissal with Prejudice, resolving all indemnity claims. The agreement further provided that if CNA could obtain a $0 Medicare Set-Aside (MSA) or one it was willing to fund, it would pay Patti a lump sum to resolve her future medical benefit entitlement. However, the agreement stated that if the parties could not resolve the issue, this provision would be null and void and the parties reserved all medical benefits and defenses.
¶ 27 In 2017, Patti reported to Dr. DiCello that she saw improvement in her condition and in 2018, she stated that her respiratory status was stable.
¶ 28 On September 25, 2018, CNA informed counsel for Patti that it was unable to obtain an...
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