Neisinger v. N.H. Ins. Co.
| Decision Date | 26 February 2020 |
| Docket Number | WCC No. 2017-4143 |
| Citation | 2020 MTWCC 4 |
| Parties | MICHAEL NEISINGER Petitioner v. NEW HAMPSHIRE INS. CO. Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner suffered a compensable left-leg injury and had surgery to repair his torn quadriceps. Thereafter, Petitioner developed severe low-back pain, with pain radiating into his hips and legs. Petitioner contends that his industrial accident aggravated his preexisting lumbar spine condition. Petitioner relies on the causation opinions of physicians and chiropractors, who in large part based their opinions on Petitioner's statements that he had an immediate onset of pain from his lumbar spine at the time of his industrial accident or shortly thereafter. Respondent denied liability for Petitioner's lumbar spine condition, maintaining that his industrial accident did not aggravate his preexisting lumbar spine condition. Respondent relies on the causation opinion of an IME physician, who determined that, based on Petitioner's medical records, his onset of symptoms was approximately ten months after his industrial accident.
Held: Respondent is not liable for Petitioner's lumbar spine condition. Although Petitioner's symptoms significantly worsened after his industrial accident, he did not meet his burden of proving that the industrial accident was the cause of the worsening. This Court gave more weight to the opinion of the IME physician because he was correct that the onset of Petitioner's symptoms was approximately ten months after his industrial accident.
¶ 1 The trial in this matter was held on July 11, 2018, in Billings, Montana. Petitioner Michael Neisinger was present and represented by Thomas J. Murphy. Respondent New Hampshire Ins. Co. (New Hampshire) was represented by Kelly M. Wills.
¶ 2 Exhibits: This Court admitted Exhibits 1 through 13, 19, 20, 22, 26, 29, and 36 without objection. Trial Exhibits 14 through 18, 21, 23, 24, 25, 27, 28, 30 (pages 1-60), 31, 38, and 39 were admitted after resolution of the parties' objections and/or reservations. During trial, page 61 to Exhibit 30 and Exhibits 40 and 41 were offered and admitted. Exhibits 32 through 35, and 37 were withdrawn.
¶ 3 Witnesses and Depositions: This Court admitted the depositions of Michael Neisinger, John VanGilder, MD, and Timothy Six, DC, into evidence. Kelly Neisinger, Michael Neisinger, and Joseph M. Erpelding, MD, were sworn and testified at trial.
¶ 4 Issues Presented: The Pretrial Order sets forth the following issues:
¶ 5 Neisinger had episodic, mild to moderate low-back pain dating back to 2009, when he started treatment with Timothy Six, DC, in Great Falls. At that time, Neisinger was able to work a heavy labor activity job. However, Dr. Six noted that Neisinger had grade 1 spondylolisthesis at L5-S1, meaning that his S1 vertebrae had "slipped" posteriorly and did not line up with his L5 vertebrae. Spondylolisthesis is caused by a fracture in the pars interarticularis, commonly referred to as a pars defect, which is spondylolysis. These fractures are oftentimes caused by trauma around the age of puberty. If the fracture does not heal back together, it can cause spondylolysis which can lead to spondylolisthesis. Spondylolisthesis is diagnosed in four grades, with grade 1 being the least severe.
¶ 6 From July 22, 2011, to April 21, 2014, Neisinger saw Aaron Hammons, DC, more than 50 times after strain and sprain injuries. Dr. Hammons summarized his treatments of Neisinger as follows:
It is clear from the records that his treatments were for uncomplicated soft tissue injuries, typically brought on by various lifting, twisting and axial compression mechanisms. However, a few were insidious in nature. The patient responded well to short term chiropractic care. Mr. Neisinger did notcomplain of any radicular symptoms in his lower extremities during his time as a patient at this office.1
¶ 7 On May 27, 2015, Neisinger suffered a left-leg injury in the course of his employment. Neisinger was working on a four-foot platform when a powerful stream of water shot out of a porthole, hitting him in the left thigh. The force of the water spun Neisinger around and, despite his attempt to brace himself with his right foot, knocked him off the platform. He landed with his feet on a concrete floor. Neisinger had immediate pain in his left knee and leg.
¶ 8 New Hampshire accepted liability for Neisinger's left-leg injury.
¶ 9 After the accident, Neisinger saw an onsite nurse. He had severe pain in his left leg and knee. The nurse noted bruising and swelling on Neisinger's left thigh and knee.
¶ 10 In early June 2015, Neisinger saw Jose F. Ortiz, MD, at Colstrip Medical Center, on two occasions, complaining of mild to moderate pain in his left thigh and cramping. Dr. Ortiz noted that x-rays did not reveal any injury to Neisinger's left femur or knee, but observed that Neisinger had "soft tissue swelling and some tendon swelling . . . ." Dr. Ortiz diagnosed Neisinger with a left-"knee/leg sprain." Because Neisinger's symptoms were not improving, Dr. Ortiz ordered an MRI.
¶ 11 On June 15, 2015, Neisinger saw Benjamin Phipps, MD, at Ortho Montana. Neisinger complained of restricted range of motion in his knee and trouble walking. However, Neisinger did not have numbness, tingling, or radicular symptoms. Because the MRI showed a "fairly substantial quadriceps tear," Dr. Phipps referred Neisinger to a surgeon.
¶ 12 On June 18, 2015, Neisinger saw Todd Hull, PA-C, at Ortho Montana. Neisinger complained of, inter alia, numbness and tingling "down the left leg."
¶ 13 On June 22, 2015, James S. Elliott, MD, from Ortho Montana, performed a quadriceps repair surgery on Neisinger.
¶ 14 Neisinger underwent an extensive course of physical therapy from July 1, 2015, to January 26, 2016. The physical therapists consistently documented Neisinger's reports of left-leg pain, which waxed and waned but improved over time. However, the physical therapists did not document that Neisinger ever complained of low-back pain, pain radiating into and down his legs, or hip pain.
¶ 15 On August 27, 2015, Neisinger saw Dr. Elliott, who noted,
¶ 16 On October 29, 2015, Neisinger saw Dr. Elliott, who noted that Neisinger was "doing very well," with no swelling in his knee, full terminal extension, and excellent strength in his quadriceps. Neisinger had pain at the repair site and near his knee, but Dr. Elliott thought that would improve with physical therapy.
¶ 17 On December 17, 2015, Neisinger returned to Dr. Elliott for his six-month follow-up. Dr. Elliott noted that Neisinger was, "[d]oing much better following quad repair." On physical examination, Dr. Elliott noted that Neisinger's "[m]uscles [had] returned nicely," that he walked without a limp, that he had full extension and excellent flexion, and that he had "[g]ood power in the quad." Despite "slight pain" in his left leg, Neisinger reported that he was ready to return to work. Dr. Elliott released Neisinger to full duty.
¶ 18 On February 4, 2016, Neisinger returned to Dr. Elliott because he had quadriceps and knee pain while working, especially when coming down ladders. Dr. Elliott was concerned because Neisinger had a lack of quadriceps strength and "marked quadriceps atrophy," and required physical therapy to control his pain.
¶ 19 Neisinger returned to Dr. Elliott on February 25, 2016. Neisinger had an MRI, which showed that the quadriceps repair was intact. Dr. Elliott summarized Neisinger's condition as follows:
He is now 8 months out from repair of a torn quadriceps tendon on that left lower extremity. [H]e has returned to work, using modifications as far as climbing and stress to the quadriceps. He has had extensive physical therapy, and he says he does get improvement from the stretching and the ultrasound for both the functionality standpoint and pain. Without it he has pain which [he] describes mainly [as] involving the lower portion of the patella and patellar tendon with some pain at the area [of the] quad repair. He has markedly decreased bulk and tone to the quadricep[s] on the repaired side. We had obtained an MRI to evaluate [his] repair site as he is slow to make progress toward full functionality and full return to quadricep[s] strength and bulk.
¶ 20 On March 14, 2016, Neisinger saw Bonnie Z. Dean, MD, for an electromyogram (EMG). Neisinger told Dr. Dean that he had had a "sudden" onset of left-knee pain, low-back pain, and hip pain in his industrial accident. The EMG was normal.
¶ 21 On April 21, 2016, Neisinger returned to Dr. Elliott. For the first time, Neisinger complained to Dr. Elliott of pain in his low back and right leg. Dr. Elliott noted:
His new issue is continuing worsening of issues on the right side which he also believes may be secondary to the fall at work which caused the quadtendon rupture on the left side. He has a shooting sensation [which] comes from the lower back region across the lateral aspect of the proximal thigh extending down anteriorly over the distal aspect of the thigh. With that he feels [ ] occasional [weakness]. No true issues of deep hip pain and no knee symptoms. No numbness or tingling going into the foot.
Dr. Elliott recommended an evaluation by a spine surgeon for an opinion as to whether Neisinger had a lumbar spine problem that was resulting in the failure of his left quadriceps to develop and his right-sided symptoms.
¶ 22 On June 15, 2016, Neisinger underwent...
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