Narum v. Liberty Northwest Ins. Corp.

2009 MT 127, 206 P.3d 964, 350 Mont. 252, 2009 Mont. LEXIS 142
CourtMontana Supreme Court
DecidedApril 14, 2009
DocketDA 08-0311
StatusPublished
Cited by12 cases

This text of 2009 MT 127 (Narum v. Liberty Northwest Ins. Corp.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Narum v. Liberty Northwest Ins. Corp., 2009 MT 127, 206 P.3d 964, 350 Mont. 252, 2009 Mont. LEXIS 142 (Mo. 2009).

Opinions

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 Liberty Northwest Insurance Corporation (Liberty) appeals from a decision of the Workers’ Compensation Court (WCC) holding that Liberty is liable to claimant Jerry Narum (Narum) for medical and hospital benefits related to the treatment of his left hip, and granting him an award of attorney fees and costs as well as a statutory penalty of 20% pursuant to § 39-71-2907, MCA. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Narum worked in the beer and wine business for 37 years. For the last 17 years of his employment, he drove a small semi-truck delivering beer. N arum’s j ob duties including heavy lifting and loading. On March 6,2003, Narum was stepping out of his truck when he either slipped or missed the last step and fell to the pavement, landing on his left side. Narum experienced slight pain at the time but ignored it and continued to work. Several weeks later, when the pain had not subsided, he filed a workers’ compensation claim, claiming injury to his left hip. Narum filed a report of the occupational injury on April 4, 2003, in which he described the circumstances of the injury.

¶3 Prior to this accident, Narum had never received any treatment for either hip. The first time he experienced pain in his hip was subsequent to the fall. Liberty accepted liability for the claim and paid benefits through December 3, 2003. After he filed his claim, Narum [254]*254sought medical treatment with Rebecca Rinehart (Rinehart), a physician’s assistant. Rinehart referred Narum to Dr. Michael C. Willis (Dr. Willis), an orthopedic surgeon who specializes in sports medicine.

¶4 Dr. Willis first saw Narum on April 9, 2003. In his examination, Dr. Willis noted that Narum had been complaining of a progressive onset of pain in his left hip. Because Dr. Willis’ examination occurred days after Rinehart’s examination of Narum, Dr. Willis had not reviewed her notes and was not aware of the slip and fall injury when he examined Narum. X-rays taken of Narum’s hip in conjunction with the examination indicated to Dr. Willis that Narum was suffering from a degenerative joint disease in his left hip. Dr. Willis recommended medical treatment for the pain. Dr. Willis also suggested Narum might be a candidate for hip replacement surgery at a later date, but did not favor surgery at that point because he was “very active” and the surgery would limit his activities. Narum had a follow-up visit with Dr. Willis approximately six weeks later. During that visit, Narum continued to complain about pain in his left hip.

¶5 Narum continued to work for his employer until June 2003, when the business was sold and he was not rehired by the new owner. Since that time, Narum has not worked and considers himself retired.

¶6 On July 18, 2003, Narum saw Dr. Scott K. Ross (Dr. Ross) for a medical consultation regarding his ongoing hip pain. Dr. Ross reviewed the records of Narum’s visit with Rinehart and Dr. Willis, and conducted his own examination. Dr. Ross concluded that Narum’s hip pain had improved approximately 20% since the accident, but that he continued to experience sharp pain in his left hip, which bothered him more when he was at rest. Narum reported that he was sometimes pain-free, but used pain medication on a daily basis. Dr. Ross noted that Narum had subjective complaints of pain and that the x-rays indicated significant degenerative osteoarthritis. Dr. Ross opined that Narum was not at maximum medical improvement (MMI) at that time. Dr. Ross recommended physical therapy and continued use of pain medication to treat Narum’s symptoms.

¶7 Dr. Ross re-evaluated Narum on September 9, 2003. Dr. Ross noted that Narum continued to experience pain when sitting, had developed a limp, and reported an almost constant pain in his left hip. Dr. Ross noted that while Narum’s degenerative condition had been present for some time, Narum was asymptomatic before the March 2003 work injury, and had not yet recovered to his pre-injury status. Dr. Ross recommended a follow-up visit with Dr. Willis and a [255]*255consideration of more aggressive therapy alternatives, including cortisteroid injections and possible hip replacement. Dr. Ross gave Narum an 8% whole person impairment rating. Narum continued to receive treatment for the pain resulting from his hip condition.

¶8 On October 17,2003, Dr. Michael H. Schabacker (Dr. Schabacker) performed an independent medical examination (IME) on Narum. Dr. Schabacker’s report summarizes Narum’s medical records and his own recorded notes of Narum’s examination, and contains responses to questions submitted by a representative of Liberty. Dr. Schabacker noted that Narum was asymptomatic prior to the March 2003 injury, but had continued to experience ongoing hip pain after the accident, which varied from no pain to moderate pain in relation to his activity level. Dr. Schabacker’s impression was that Narum had persistent left hip pain following his fall at work which was exacerbated by his left hip degenerative condition. Dr. Schabacker opined that Narum’s degenerative joint disease predated the work injury in March 2003, and that it was more probable than not that the work injury led to left hip pain due to the preexisting problem. Dr. Schabacker concluded it was -unlikely that Narum would have experienced a prolonged recovery from the industrial injury if he had not suffered the degenerative condition in the first place, and that the injury itself did not lead to the development of the degenerative condition. Dr. Schabacker also concluded that only 25% of Narum’s condition was attributable to his work-related injury and that he should have received only a 2% impairment rating.

¶9 On November 18, 2003, Dr. Willis wrote a letter explaining his treatment and examinations of Narum. In the letter, Dr. Willis stated that his degenerative condition had been exacerbated by the work injury. Dr. Willis also stated that Narum’s “injury has been disconnected from his Workers’ Compensation Claim, as it was more than likely a pre-existing condition, exacerbated by work. Mr. Narum has significant hip pain, which has since the time of this injury, limited his ability to return to work, and he really feels that he is unable to return to the form of work which he was doing prior to this exacerbation.” Dr. Willis further concluded in the letter that Narum’s degenerative hip condition made it unlikely that he could return to the type of employment he engaged in at the time of the injury.

¶10 Liberty continued to pay Narum medical benefits until December 2003, when it informed him that it would no longer pay benefits because he had reached MMI and had been given an 8% impairment. Narum then obtained counsel in order to reach a settlement. Narum [256]*256later testified that his primary concern was to ensure that his medical benefits remained open, since his medical examinations indicated that he would eventually need a hip replacement.

¶11 In early 2004, Narum’s attorney began negotiating a settlement with Liberty. On February 23,2004, the terms of this settlement were memorialized in a letter. The letter stated that the parties had agreed Liberty would pay Narum $25,000 in new money and would allow Narum to reserve his medical benefits. The settlement was approved by the Department of Labor and Industry on March 11, 2004. The terms of the agreement, drafted pursuant to the Department’s standard Petition for Settlement form, stated in pertinent part as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
2009 MT 127, 206 P.3d 964, 350 Mont. 252, 2009 Mont. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/narum-v-liberty-northwest-ins-corp-mont-2009.