Wright v. Ace Am. Ins. Co.

• Decision Date: 15 March 2011
• Docket Number: No. DA 10–0307.,DA 10–0307.
• Citation: 359 Mont. 332,2011 MT 43,249 P.3d 485
• Parties: Joe WRIGHT, Petitioner and Appellee,v.ACE AMERICAN INSURANCE CO., Respondent and Appellant.
• Court: Montana Supreme Court

359 Mont. 332

249 P.3d 485

2011 MT 43

Joe WRIGHT, Petitioner and Appellee,

v.ACE AMERICAN INSURANCE CO., Respondent and Appellant.

No. DA 10–0307.

Supreme Court of Montana.

Submitted on Briefs Jan. 12, 2011.Decided March 15, 2011.

For Appellant: Charles G. Adams; Keller, Reynolds, Drake, Johnson, & Gillespie, P.C.; Helena, Montana.For Appellee: Patrick Sheehy; Halverson, Sheehy & Plath, P.C.; Billings, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[359 Mont. 333] ¶ 1 Ace American Insurance Co. (Ace), appeals from the 2010 Workers' Compensation Court (WCC) Order holding Ace liable for additional medical benefits and allowing for the reinstatement of temporary total disability benefits for claimant Joseph Wright (Wright). We address the following issues:

¶ 2 1. Whether the WCC erred as a matter of law in ordering additional medical benefits.

¶ 3 2. Whether the WCC's decision is supported by substantial credible evidence.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 In October 2004, while working for Interstate Brands, Inc., Wright was removing pallets from a jammed conveyor belt when the belt started up and jerked his left arm. Wright underwent shoulder surgery on January 12, 2005, to address his injury. Wright testified at trial that since the surgery, his pain has worsened significantly to the point he is unable to work.

¶ 5 Over the years since his injury, Wright has been examined and evaluated by numerous physicians. Dr. Gregg Singer (Singer), who is board certified in physical medicine and rehabilitation and a certified independent medical examiner, performed two independent medical examinations (IMEs) on Wright in 2006. Singer agreed there were sufficient objective findings to support a diagnosis of postsurgical chronic pain and suspected depression as one contributing factor. On July 7, 2006, Singer opined that Wright had reached Maximum Medical Improvement (MMI). He assigned Wright a six percent whole person impairment rating and recommended medications for pain and depression. Singer restricted Wright permanently to light-duty work with no overhead activity with his left shoulder.

¶ 6 Following Singer's IMEs, Wright continued to be in pain with some increase in symptoms. Wright first saw Dr. Jeffrey Hansen (Hansen) in December, 2006. Hansen is a board certified orthopedic surgeon. Hansen resides and has admitting privileges in Powell, Wyoming and Wright has been travelling to Powell to see him. Hansen's Montana license expired at the end of March, 2008—a fact he apparently did not realize until his deposition in this case.

¶ 7 After ongoing evaluations from 2006 to 2009, Hansen concluded that Wright's industrial injury had resulted in the ongoing conditions affecting both Wright's shoulder and cervical spine. Hansen opined that two arthroscopic surgical repairs may provide relief from Wright's shoulder pain: a biceps tenodesis and completion of Wright's partial rotator cuff tear with rotator cuff repair. Regarding Wright's spine, Hansen found evidence of a degenerative disk disease of the cervical spine with nerve root irritation and secondary neck pain and headache. He explained that while the cervical condition is degenerative, the industrial accident and resulting shoulder injury were significantly likely to have exacerbated the underlying condition. Hansen reported that a cervical treatment plan must be developed to address Wright's pain and also suggested that neurosurgery or ongoing consultation with a neurologist may be helpful. Hansen supported his findings with an MRI and the multiple evaluations he performed on Wright. Although Hansen did not review any job analyses, he opined that Wright's pain has become such a distraction that it may be difficult or impossible for Wright to complete any work.

¶ 8 On April 4, 2008, during the time Wright was being seen by Hansen, Dr. Michael Shabacker (Shabacker) assumed Wright's care for pain management. Shabacker specializes in chronic pain management. While he was not aware of any specific treatment that would be curative of Wright's condition, Shabacker testified he believes Wright's complaints of pain are real and he does not believe Wright is malingering or lying about his pain. Shabacker found Wright at MMI on October 8, 2008, and reviewed several job analyses in an attempt to find something that Wright could do “from a work standpoint” in spite of his pain. On January 12, 2009, Shabacker noted some doubt as to whether Wright was capable of returning to work. He testified in his deposition that Wright's return to work would be a “matter of commitment” to working, despite hurting when he works. Shabacker recommended managing the pain as best they can with medication.

[359 Mont. 335] ¶ 9 On January 20, 2010, the WCC held a trial to determine Ace's liability for the treatments recommended by Hansen and Wright's eligibility for continued disability benefits. Depositions from Hansen, Singer, Shabacker, and Wright were presented. As noted, Wright testified at trial, as did his wife, Bette, and vocational rehabilitation counselor Travis Stortz. Stortz testified that Wright was qualified for alternative jobs and whether he could perform them was “a matter of the pain consideration.” Stortz agreed that if the court accepted Wright's testimony, it would be “impossible” for him to return to work. The WCC found Wright to be a credible witness.

¶ 10 Following trial, the WCC issued detailed findings of fact and concluded that Ace is liable for additional medical benefits in the form of the surgical procedure Hansen proposed for Wright's shoulder. In so holding, the WCC reasoned that although Dr. Shabacker is well qualified in the field of chronic pain management, his opinions go to the management of Wright's pain rather than to the cause. Given Hansen's expertise and qualifications, the WCC gave more weight to his opinion as to the cause and diagnosis of Wright's continued pain.

¶ 11 In determining whether Ace is liable for treatment relating to Hansen's cervical diagnosis, the WCC acknowledged that Hansen is not a spine surgeon. The WCC therefore ordered Wright to consult Dr. Rizzolo, a spine surgeon who previously had seen Wright. If Dr. Rizzolo disagreed that further treatment of Wright's cervical spine is warranted, the WCC allowed Wright to seek the opinion of one more orthopedic physician in Montana. The WCC determined that if neither physician agreed with Hansen's recommendation, Ace will not be liable for further cervical treatment. Having decided that Wright may have a chance of improving his condition, the WCC concluded that Wright has not reached MMI and is entitled to reinstatement of his temporary total disability benefits.

¶ 12 Ace now appeals the WCC decision.

STANDARD OF REVIEW

¶ 13 This Court employs two standards of review for decisions of the WCC. The Court reviews findings of fact to determine if they are supported by substantial, credible evidence, and we review conclusions of law to determine if they are correct. Hiett v. Missoula Co. Pub. Schs., 2003 MT 213, ¶ 15, 317 Mont. 95, 75 P.3d 341.

¶ 14 In reviewing the WCC's factual findings, “we do not resolve conflicts in the evidence, and we do not consider whether evidence supports findings that are different from those made by the WCC; rather, we confine our review to determining whether substantial credible evidence supports the findings actually made by the WCC.” Quick v. Mont. St. Fund, 2009 MT 162, ¶ 32, 350 Mont. 455, 208 P.3d 415 (citations omitted). We defer to the WCC's findings concerning credibility and the weight to be accorded to the testimony of witnesses who testify in person at trial. Harrison v. Liberty N.W. Ins. Corp., 2008 MT 102, ¶ 12, 342 Mont. 326, 181 P.3d 590. Because we are in as good a position as the WCC to assess testimony presented at trial by way of deposition, we review deposition testimony de novo. Id. at ¶ 13. “However, ... even where we conduct de novo review of deposition testimony, we are ultimately restricted to determining whether substantial credible evidence supports the WCC's findings.” Id.

¶ 15 We apply the 2003 version of the Montana Workers' Compensation Act (Act) because that was the law in effect at the time of Wright's injury. Quick, ¶ 23.

DISCUSSION

¶ 16 On appeal, Ace argues that the WCC erred in relying on Hansen's testimony and diagnoses because he does not meet the statutory definition of a treating physician. Ace contends Hansen cannot qualify as a treating physician under § 39–71–116(36)(a), MCA (2003), because he is not currently licensed in Montana and his diagnoses and recommended treatment, therefore, are not primary medical services as defined in § 39–71–116(26), MCA (2003). Ace also contends the WCC erred in relying on Hansen's opinion to the exclusion of the opinions of the other physicians who examined Wright and its findings accordingly are not supported by the weight of the evidence.

¶ 17 1. Whether the WCC erred as a matter of law in ordering additional medical benefits.

¶ 18 The Act allows for payment of “primary medical services” for conditions resulting from the worker's injury “for those periods as the nature of the injury or the process of recovery requires.” Section 39–71–704(1)(a), MCA (2003). “ ‘Primary medical services' means treatment prescribed by a treating physician, for conditions resulting from the injury, necessary for achieving medical stability.” Section 39–71–116(26), MCA (2003). “Medical stability” is synonymous with “maximum medical healing” and means “a point in the healing process when further material improvement would not be reasonably expected from primary medical treatment.” Section 39–71–116(18), MCA (2003). A claimant is entitled to such “primary medical services” as are necessary to permit him or her to sustain medical stability. Hiett, ¶ 19.

[359 Mont. 337] ¶ 19 For purposes of determining “primary medical services,” “ treating physician” means a person who is...