Schieber v. Liberty Nw. Ins. Corp., WCC No. 2017-3939

Citation2019 MTWCC 14
Decision Date20 September 2019
Docket NumberWCC No. 2017-3939
PartiesDAVID SCHIEBER Petitioner v. LIBERTY NORTHWEST INS. CORP. Respondent/Insurer.
CourtMontana Workers Compensation Court
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Summary: Petitioner suffered compensable left-shoulder and low-back injuries in 2012. A year-and-a-half later, his treating physician declared him at MMI, set restrictions, and approved a less-demanding JA. Although Petitioner eventually returned to work elsewhere, he left after a few months due to pain. Respondent reinstated TTD benefits until January 22, 2015, after a consulting orthopedic surgeon determined Petitioner needed no further surgery and his treating physician determined there was nothing more he could do for him. Thereafter, Petitioner saw additional surgeons, several of whom offered conditional recommendations for surgery. Petitioner argues he is entitled to past due and ongoing TTD benefits or past due and ongoing PTD benefits, and ongoing medical benefits, including surgery.

Held: Petitioner is not entitled to TTD benefits because he was at MMI when Respondent terminated TTD benefits on January 22, 2015 and has remained at MMI ever since. Petitioner is not currently a candidate for further surgery because the conditions set by the surgeons recommending it have not been met. Petitioner is, however, entitled to PTD and medical benefits from January 22, 2015, on. After Respondent met its initial burden of producing evidence that Petitioner was and is not permanently totally disabled with an approved JA, Petitioner met the ultimate burden of proving that he neither had nor has a reasonable prospect of performing regular employment given his older age, modest education, narrow work history, limited transferable skills, and multiple physical conditions. Because he is permanently totally disabled, Petitioner is entitled to ongoing medical benefits. His entitlement to further surgery will depend on whether the specific procedure he seeks is considered a primary medical service at some point in the future.

¶ 1 The trial in this matter was held on July 5 and 6, 2018, in Helena, Montana. Petitioner David Schieber was present and represented by Thomas J. Murphy and Matthew J. Murphy. Respondent Liberty Northwest Ins. Corp. (Liberty) was represented by Leo S. Ward. Jamie Kern, claims adjuster, was also present on behalf of Liberty.

¶ 2 Exhibits: This Court admitted Exhibits 1 through 7, 9 through 31, 35 through 40, 42 through 45, 47 through 51, and 54 through 68.

¶ 3 Witnesses and Depositions: This Court admitted the depositions of Schieber, Alexander Bailey, MD, James Michael Eule, MD, Fermin Santos, MD, and Lisa Kozeluh, CRC, into evidence. Margot Luckman, CRC, Schieber, Kern, and Holly Roberts were sworn and testified at trial.

¶ 4 Issues Presented: This Court rephrases the following issues from the Pretrial Order:

Issue One: Is Petitioner entitled to past due and ongoing TTD benefits as a result of his 3/26/2012 injury?
Issue Two: Is Petitioner entitled to past due and ongoing PTD benefits as a result of his 3/26/2012 injury?
Issue Three: Is Petitioner entitled to ongoing medical benefits, including, but not limited to, back surgery?
Issue Four: Is Petitioner entitled to costs?
FINDINGS OF FACT

¶ 5 This Court finds the following facts by a preponderance of the evidence.1

Schieber's Background

¶ 6 Schieber is 62 years of age and a resident of Osawatomie, Kansas. He graduated from high school in 1975 and has had no further formal education or training. He has a commercial driver's license and has been a truck driver for most of his adult life, his only other experience being custodial work at a school.

¶ 7 On March 12, 2012, M.A. DeAtley Construction (DeAtley) hired Schieber to work at a jobsite in Harlowton, Montana. As a belly dump truck driver, Schieber's main job was transporting gravel from a pit across rough pasture ground to a field, between 60 and 80 times a day. However, DeAtley was short on laborers, so when other employees asked him to help with odd jobs during driving lulls, Schieber did. Among other things, he moved equipment, some of it weighing over 100 pounds. DeAtley never told him not to help out at the jobsite. Indeed, he felt it was an unwritten rule that if you were not a team player, especially as a new employee, DeAtley would not keep you around.

Schieber's Injury

¶ 8 While he was working on the night of March 26, 2012, Schieber hit a soft spot in the field and rolled his truck and trailer onto their right sides. The accident left him dangling from his seatbelt. After managing to free himself and get out of the truck, Schieber felt "beat up" but adrenaline masked the extent of his injuries.

¶ 9 DeAtley's night superintendent asked Schieber for a urine sample to test for drugs but decided not to administer a breathalyzer as those the company had on hand were expired. He told Schieber he could not work for 72 hours but to come back the next day to see the safety officer. Schieber returned to his camper nearby, drank a few beers to settle down, and eventually went to bed.

¶ 10 The next morning, the safety officer asked Schieber to take a breathalyzer, but he declined, indicating: "I don't think I could pass it, and I don't think it would be fair to me if I took one because I went home and drank some beer." However, because his left arm, lower back, and right buttocks were bothering him, Schieber did allow a DeAtley surveyor to bring him to the hospital to get checked out. He left with instructions to rest and take over-the-counter pain medicine as needed.

¶ 11 Schieber drove to his house in Huson to recuperate and await word from DeAtley. But when he called the company to check in, the secretary told him "they're going to terminate you because you did a lot of property damage on their vehicle." On April 2, 2012, Schieber received a letter from DeAtley confirming his termination but citing his refusal to take the breathalyzer as the cause.

Medical Evidence
Schieber's Treatment in Montana

¶ 12 On April 4, 2012, Schieber saw Fred Westereng, PA-C, complaining of continued right-sided back and hip pain, and stiffness and soreness in his legs. Westereng thought the problem was "muscular in origin," and referred him for physical therapy.

¶ 13 After a month, Schieber "ha[d] made good progress with his SI joint pain but his L[eft] shoulder ha[d] not reacted to conservative therapy."

¶ 14 On May 10, 2012, Gloria Kornish, PA-C, took him off work, prescribed Lortab and Flexeril and referred him for orthopedic evaluation.

¶ 15 On June 11, 2012, Schieber saw Michael W. Woods, MD, for his back and shoulder. Dr. Woods ordered MRIs of both areas and released Schieber to modified duty, limiting his lifting to 10 pounds and indicating "no prolonged sitting, occasional bending/twisting of back."

¶ 16 Notwithstanding, DeAtley never offered Schieber modified-duty work because it had already fired him.

¶ 17 Following review of the MRIs on July 12, 2012, Dr. Woods recommended a right L5-S1 transforaminal epidural steroid injection and continued physical therapy.

¶ 18 Liberty accepted Schieber's injury claim and paid wage-loss and medical benefits for his left shoulder and low back.

Schieber's Treatment in Alaska

¶ 19 Later that summer, after he relocated to Alaska, Schieber had shoulder surgery with Mark E. Clyde, MD. Although he was left with a "Popeye" biceps muscle from one of the procedures, Dr. Clyde thought Schieber would do fine and referred him for physical therapy. About six months later, notwithstanding that Schieber was not yet medically stable as to his shoulder, Dr. Clyde released him to return to regular work.

¶ 20 On November 9, 2012, Schieber saw James L. Glenn, PA-C, complaining of "central lower back pain with referral symptoms into the right buttocks, right posterior thigh into calf with occasional symptoms into the pads of his feet," as well as "numbness and tingling in the right leg," though "not on a constant basis." Glenn recommended six more weeks of physical therapy, after which he gave Schieber a full-duty work status note.

¶ 21 Schieber returned to see Glenn in early January 2013, after exacerbating his lower-back pain while clearing flood water out of his basement. Glenn ordered an MRI,performed a right L5 selective nerve root block, and gave Schieber a light-duty work status note.

¶ 22 Although the nerve block temporarily reduced his pain, Schieber decided to meet with Glenn's partner, James M. Eule, MD, to discuss surgical options. The orthopedic spine surgeon recommended a right L5-S1 foraminotomy with decompression, took Schieber off work completely, and performed the surgery on May 1, 2013.

¶ 23 On June 11, 2013, Dr. Eule noted that Schieber was doing "better and better." He had "less pain, although he ha[d] numbness on the ball of his foot still and he still [had] a little bit of pinching in his calf." Dr. Eule referred him for six more weeks of physical therapy and noted, "He is not able to go back to his work as a truck driver yet. [But] [i]f they have light duty he can do that."

¶ 24 Later that summer, perceiving Schieber's desire to get back to work, Dr. Eule referred him for a work hardening program with John DeCarlo, OTL. Schieber participated but left the program without completing the last few sessions or a final functional capacity exam (FCE) because he found the experience "too confining." As he put it, "people was [sic] always around me, and you know, asking me questions. And I never communicated with people that intensely."

¶ 25 In notes from Schieber's last work hardening session on September 27, 2013, DeCarlo wrote, "his pain complaints have been almost nonexistent most recently. I do anticipate return to work at full duties as a heavy equipment operator."

¶ 26 The same day, Schieber told Dr. Eule he had "accomplished what he need[ed] to" with work hardening and was "ready to get back to work." However, he had come to the realization that "he n...

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  • Robertson v. Mont. State Fund
    • United States
    • Montana Workers Compensation Court
    • March 16, 2021
    ...Pretrial Order, and therefore, not properly before this Court). 4. See Davis, ¶ 43. 5. See Davis, ¶ 43. 6. See, e.g., Schieber v. Liberty Nw. Ins. Corp., 2019 MTWCC 14 (where this Court found claimant was permanently totally disabled, notwithstanding an approved JA, when claimant returned t......

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