Walund v. Mont. State Fund

Decision Date22 February 2021
Docket NumberWCC No. 2020-5105
Citation2021 MTWCC 2
PartiesKENNETH WALUND Petitioner v. MONTANA STATE FUND Respondent/Insurer.
CourtMontana Workers Compensation Court

Summary: During his work shifts on September 26, 2019, and January 30, 2020, Petitioner experienced a sharp increase in pain in his lower extremities, which is a symptom of his preexisting neuropathy. Thereafter, Petitioner reported to his treating physician that he had a different feeling on touch. His symptoms have improved but have not returned to the level he had before his first work shift in which he experienced an increase in pain. He moved for summary judgment, asserting that Respondent has ongoing liability for his neuropathy because his work caused a permanent aggravation. Petitioner also argues that Respondent has admitted liability because its agreement to "treat" his increased symptoms while working as temporary aggravations is a judicial admission that he suffered compensable injuries. Respondent cross-moved for summary judgment, asserting that it is not liable for Petitioner's neuropathy because Petitioner's subjective reports of increased pain while working and his report of a different feeling on touch are not, by themselves, sufficient to prove compensable injuries under the 1995-present WCA, which requires that an injury be established with objective medical findings. Alternatively, Respondent argues that it is not liable for Petitioner's neuropathy because Petitioner does not have a medical causation opinion that his alleged injuries permanently aggravated his neuropathy.

Held: Respondent is entitled to summary judgment because Petitioner has the burden of proof but does not have sufficient evidence to prove his case. Under the 1995-present WCA, a claimant must prove that he suffered an injury with objective medical evidence and prove causation with medical expertise or opinion. Petitioner has not introduced objective medical findings in support of his claim that he suffered injuries; he introduced only subjective complaints of increased and different symptoms. Moreover, Petitioner does not have a medical causation opinion supporting his position that his alleged injuries permanently aggravated his neuropathy. Petitioner's treating physician testified that the increase of Petitioner's symptoms while working did not cause any progression of his neuropathy. Finally, even if Respondent's agreement was deemed a judicial admission that Petitioner suffered injuries that aggravated his neuropathy, Respondent does not have ongoing liability because, at most, Respondent admitted liability only for temporary aggravations.

¶ 1 Petitioner Kenneth Walund moves for summary judgment, asserting that Respondent Montana State Fund (State Fund) is liable for his preexisting neuropathy because he suffered injuries during his shifts on September 26, 2019, and on January 30, 2020, which caused a permanent aggravation.

¶ 2 State Fund cross-moves for summary judgment, asserting that it is not liable for Walund's neuropathy. State Fund argues that under the 1995-present Workers' Compensation Act (WCA), Walund did not establish that he suffered injuries with objective medical findings. Alternatively, State Fund argues that if Walund suffered injuries while working, he has not carried his burden of proving with a medical causation opinion that his injuries permanently aggravated his neuropathy.

¶ 3 This Court held a hearing on October 28, 2020. The parties agreed that Walund could thereafter file the exhibits to the deposition of Richard E. Popwell, Jr., MD. Walund filed those exhibits on December 10, 2020.

¶ 4 For the following reasons, this Court denies Walund's Motion for Summary Judgment and grants State Fund's Cross-Motion for Summary Judgment.


¶ 5 Walund worked as a criminal investigator for the Montana Department of Justice.

¶ 6 In the early 2010s, Walund saw Anthony Paul Williamson, MD, because he was experiencing numbness, tingling, and pain in his legs and feet. Dr. Williamson suspected that Walund had peripheral neuropathy. Dr. Williamson ordered a nerve conduction velocity test, the results of which were "consistent with a sensory polyneuropathy."

¶ 7 In the fall of 2017, Walund began treating with Dr. Popwell, who has been practicing as a board-certified neurologist since 2001. Dr. Popwell noted that Walund had "moderate-severe associated neuropathic pain, often disabling."

¶ 8 Dr. Popwell diagnosed Walund with "small fiber neuropathy," a disorder of his nerves with the smallest diameters. Dr. Popwell explained that these nerves "carry pain, which is why this type of neuropathy predominantly presents as a painful set of symptoms." Dr. Popwell also explained that neuropathy is incurable and has "a very slow and progressive course over many years."

¶ 9 Despite "extensive diagnostics," Dr. Popwell could not ascertain the cause of Walund's neuropathy. However, Dr. Popwell excluded Walund's work as a potential cause, explaining, "This is a medical condition that is unrelated to anyone's occupation."

¶ 10 From the fall of 2017 to the fall of 2019, Walund's symptoms continued to worsen.

¶ 11 On September 26, 2019, Walund sat in a truck for over nine hours while conducting surveillance on a suspect. During that time, Walund experienced a sharp increase in his leg and foot pain. Walund's foot pain became so severe that he had to take off his shoes. When Walund got out of the truck, he was unable to walk. In the following days, his severe foot pain subsided; however, he continued to suffer from a throbbing pain in his legs.

¶ 12 Dr. Popwell explained that such an "attack" is a common experience for those with neuropathy and part of the natural progression of the condition. Dr. Popwell also explained that it is "not uncommon for people who have sensory neuropathy to have the greatest degree of symptoms when they're at rest."

¶ 13 On December 10, 2019, Walund returned to Dr. Popwell. Dr. Popwell's examination revealed, "Altered sensory perception to touch [in] the lower extremities, but no actual hypoesthesia. Otherwise normal strength and [deep tendon reflexes]." At his deposition, Dr. Popwell explained:

So at that time, the update on his clinical exam was notable for alteration of sensory perception to touch in the lower extremities, but there was no actual diminished perception. And so as this progresses, people will typically begin to lose or have differences in tactile perception or temperature perception or pinprick perception. And so during that visit, he did describe when we were undergoing a touch assessment that it just didn't feel the same but he wasn't able to describe an intensity.
So if you were to score—I touch you and it's—you know, this feels like a 10. He didn't describe a diminished intensity, just a different perception, which I would consider a relative objective exam finding.

¶ 14 On January 30, 2020, Walund worked for a half day in the Butte area and then drove to Billings for a weapons training course scheduled for the next day. While driving, Walund had another "attack" and was suffering from severe foot pain when he reached his hotel. Walund still had severe foot pain the next day, which rendered him unable to run during the training course.

¶ 15 On February 25, 2020, Walund returned to Dr. Popwell because of his second "attack." Dr. Popwell noted that Walund still had "Altered tactile perception in [his lower extremities] in stocking distribution." However, Dr. Popwell testified that there was no change when compared to his prior examination:

Q. Was there any change in his clinical exam?
A. He still had the altered tactile perception in his lower extremities. His motor strength and his reflexes remained the same. So there was no change in his exam that was clinically relevant or significant compared to his visit in 12-10-19.
Q. Okay. So as far as neurologic findings or other objective findings, there was no change?
A. No. And again, just to reference, that's not uncommon for sensory polyneuropathy.

¶ 16 Walund's severe foot pain lasted until March 2, 2020. Although his foot pain diminished, he continues to have leg and foot pain, which has not returned to the level he experienced before his "attacks" on September 26, 2019, and January 30, 2020.

¶ 17 Walund filed two workers' compensation claims, asserting that the "attacks" he suffered on September 26, 2019, and January 30, 2020, are injuries under the WCA and that they permanently aggravated his neuropathy.

¶ 18 On April 21, 2020, Dr. Popwell filled out an Attending Physician's Statement in support of Walund's application for a disability retirement.1 Dr. Popwell stated that the "objective examination findings" supporting his diagnosis of "idiopathic peripheral neuropathy" was the 2017 nerve conduction velocity test. Dr. Popwell stated that Walund's subjective symptoms were "severe neuropathic pain," "shocking sensations," and "leg weakness." Dr. Popwell stated, "Ken has continued to experience chronic moderate intensity neuropathic pain and occasional severe exacerbations that render him debilitated." Dr. Popwell explained, "[P]atient may be unable to perform physical tasks such as walking, running or lifting while his neuropathy flares. These flares are unpredictable." In response to a question asking whether Walund's neuropathy was "job related," Dr. Popwell marked the "no" box.

¶ 19 Dr. Popwell testified that Walund could not work as an investigator because of his neuropathy, explaining:

Well, this is kind of a no-brainer, that if you're going to have these attacks from your medical condition and that they're going to be exacerbated in your work-related duties, you have to either have special accommodations—which really aren't practical in Mr. Walund's line of work—or you're probably going to have to seek a medical retirement.

¶ 20 On April 22,...

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