Robertson v. Montana State Fund, 031621 MTWC, 2020-4988

Case DateMarch 16, 2021
CourtMontana
2021 MTWCC 5
SUSIE ROBERTSON Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.
WCC No. 2020-4988
Montana Workers Compensation
Workers’ Compensation Court of State of Montana
March 16, 2021
          Submitted: September 22, 2020          Summary: Petitioner argues she is entitled to PTD benefits because — although Respondent has several approved JAs, including sedentary positions with her time-of-injury employer — her pain and her age and lack of skills render her unable to physically perform regular work.          Held: Petitioner is not entitled to PTD benefits. This Court is not persuaded that Petitioner’s pain is so severe, or that her age and lack of skills are such impediments, that she is unable to physically perform any regular work. This Court is convinced that Petitioner could have successfully returned to work for her time-of-injury employer in the jobs it offered her.           Bernard J. “Ben” Everett           Melissa Quale          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT           DAVID M. SANDLER, JUDGE          ¶ 1 The trial in this matter was held on September 22, 2020, in Helena, Montana. Petitioner Susie Robertson was present and was represented by Bernard J. “Ben” Everett. Respondent Montana State Fund (State Fund) was represented by Melissa Quale. Chris Simonson, claims adjuster, was present on behalf of State Fund.          ¶ 2 Exhibits: This Court admitted Exhibits 1 through 19 without objection.          ¶ 3 Witnesses and Depositions: This Court admitted the deposition of Susie Robertson into evidence. Susie Robertson, John C. Schumpert, MD, James Robertson, Andy Fowler, CRC, and Chris Simonson were sworn and testified at trial.          ¶ 4 Issue Presented: This Court restates the issues set forth in the Pretrial Order as follows: Is Susie Robertson entitled to permanent total disability (PTD) benefits for her March 14, 2019, injury?          FINDINGS OF FACT          ¶ 5 This Court finds the following facts by a preponderance of the evidence.1          ¶ 6 At the time of trial, Robertson was 61 years old. She has a high school education and, except for a short stint taking care of her mother, has only ever had one job; she worked as a certified nursing assistant (CNA) at Community Hospital of Anaconda Nursing Home (ACH Nursing Home) for 41 years. As a CNA for ACH Nursing Home, Robertson’s job duties included helping the residents with their activities of daily living, as well as stripping and making the beds, and charting.          ¶ 7 On March 14, 2019, Robertson suffered a low-back injury in the course and scope of her employment.          ¶ 8 State Fund accepted Robertson’s claim for a disc herniation at L4-5 and has paid medical and indemnity benefits.          ¶ 9 Before surgery for the herniation, Robertson had severe pain, at a level of 9 out of 10, in the lower-right-side of her back, that radiated down her right leg and into the tops of her feet.          ¶ 10 On May 17, 2019, Robertson underwent an L4-5 right lateral microdiscectomy performed by Richard Day, MD. The operative records indicate that the surgery was successful; there were no complications, a satisfactory decompression of the nerve root was achieved, and no disc fragments were retained.          ¶ 11 On June 7, 2019, at Robertson’s three-week follow-up appointment, Dr. Day noted, “45% improvement in her leg symptoms but still has some anterior shin pain and some tightness in her posterior hamstring region. She’ll sometimes get gripping pain when she rolls over in bed.” He thought she needed more time to heal and recommended conservative management, consisting of daily walking and gentle stretching.          ¶ 12 At Robertson’s July 26, 2019, appointment, Dr. Day noted, “45% improvement but still considerable radiating leg pain down her anterior shin to her ankle. She denies any numbness or weakness and has the most trouble rolling over in bed or trying to climb stairs. Improvement was rather study (sic) from surgery but may have plateaued and she does not report a relapse or new injury.” Among other treatment, Dr. Day referred her for an epidural steroid injection and an MRI of her lumbar spine.          ¶ 13 The MRI, performed on August 15, 2019, showed, “Postoperative changes following discectomy right L4-5 level. No evidence of residual or recurrent disc herniation. Otherwise negative contrast/noncontrast MR lumber spine.”          ¶ 14 On August 22, 2019, Robertson saw Brian M. Bradley, CRNA, reporting pain at a level 8 out of 10 and that she was “challenged by daily activities due to pain.” He noted that she could not have an interlaminar injection “due to recent surgery,” but that she “could certainly benefit from transforaminal injections covering the right L4-5 and L5-S1 levels,” which he proceeded to perform.          ¶ 15 When Robertson saw Dr. Day several weeks later, on September 4, 2019, she reported she was feeling better generally but had pain in her right foot and difficulty getting out of bed first thing in the morning. Dr. Day noted “slow but continued improvement of a right L4 radiculopathy for large far lateral herniated disc.” He counseled Robertson that she needed more time to heal and prescribed six weeks of physical therapy.          ¶ 16 At her follow-up appointment with Dr. Day on October 4, 2019, Robertson complained of “radiating left block pain down the lateral aspect of her leg towards her knee with persistent low back pain.”[2] She continued to report that, upon waking, she “is so stiff and painful all over she can hardly get out of bed.” Dr. Day noted that Robertson’s last complaints were about her right leg and that he could not attribute her all-over pain complaints and mobility issues to her L4 radiculopathy for which she had surgery. He further noted, “At this juncture she is (sic) probably essentially reached MMI from the standpoint of her far lateral microdiscectomy and therefore recommending functional capacity exam occupational medicine evaluation for her ability to return to work in any capacity.”          ¶ 17 Robertson underwent the functional capacity examination (FCE) with Mike Cline, DPT, on November 5 and 6, 2019. She told him that surgery had not helped her very much and that she was still having pain in her right leg and foot. She also reported that she now also had pain on her left side, down the back and side of her hip and thigh. Cline observed that Robertson “gave maximal effort on most test items,” but “limited some activities prior to objective signs of maximal performance due to reports of lower back pain.” Her performance was consistent or better on the second day of testing.          ¶ 18 At some point ACH Nursing Home verbally offered Robertson the temporary transitional work assignment of Resident Interactive Coordinator. That position primarily involved providing socialization to the residents; it did not involve assisting with patient transfers or exerting any force over 10 pounds.          ¶ 19 Cline issued his FCE report on December 9, 2019. He concluded that Robertson was capable of light physical demand level work with push and pull at medium physical capacity. Accordingly, he opined that Robertson should not return to her time-of-injury job as a CNA unless the job could be modified to include two-person assisted lifting and transferring. Cline did, however, opine that Robertson could safely meet the physical demands of the Resident Interactive Coordinator position. He noted that the consistency of her performance over both days of testing indicated that Robertson should be able to sustain her work ability on a day-to-day basis.          ¶ 20 On December 17, 2019, ACH Nursing Home sent Robertson a formal written offer for the Resident Interactive Coordinator position. ACH Nursing Home noted that the position fell within Robertson’s restrictions and paid the same hourly wage as her time-of-injury job.          ¶ 21 On December 19, 2019, State Fund sent Robertson a 14-day termination letter, explaining that it would be terminating her temporary total disability (TTD) benefits because she had been offered work within her restrictions.          ¶ 22 On December 27, 2019, Robertson notified ACH Nursing Home by letter that her pain prevented her from accepting its job offer. She explained:
I continue to experience constant low-back pain and pain down both of my legs despite undergoing low-back surgery. I cannot sit, stand, walk, nor engage in any activity for more than a few minutes at a time due to the pain I suffer.
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