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.
...