BRUCE BARNES

FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND PROPOSED JUDGMENT

4. The parties have proposed and the Court adopts the following issues to be decided by the Court:

5. The trial in this matter was held on May 10, 1993, in Butte, Montana, before Hearing Examiner Robert J. Campbell. Claimant, Bruce Barnes, his wife Marie Barnes and his father Charles Barnes were sworn and testified. The depositions of the claimant and Dr. Philip J. Milanovich were presented to the Court and admitted into evidence. Exhibit Nos. 1 through 4 and Exhibit Nos. 6 and 7 were admitted into evidence without objection. Exhibit Nos. 5 and 9 were admitted by stipulation. Exhibit No. 8 was withdrawn by respondent. Upon filing the Proposed Findings of Fact, Conclusions of Law and Reply Briefs, this matter was deemed submitted on November 29, 1993.

6. The undersigned, having reviewed the pleadings, considered the Pretrial Order and the exhibits admitted into evidence, heard the testimony and observed the demeanor of the witnesses at trial and being fully advised in the premises, now makes the following Findings of Fact and Conclusions of Law and Proposed Judgment:

FINDINGS OF FACT

1. The uncontested facts are found as fact and adopted as facts and adopted herein.

Claimant

2. At the time of trial, claimant was 25 years of age (DOB 6/13/68). He has a ninth grade education and is working on obtaining his GED. (Tr. at 47-48.)

3. Claimant's work history includes welding, fabricating work, ranching and he has experience with irrigation pipe. He has worked in a pork processing plant in Minnesota and six months at the Salt Lake International Airport until he was fired for failing to close a safety door. He worked for a tire company in Butte and Town Pump until he was fired on November 24, 1991, for misappropriation of money.

Claim for Compensation

4. During the summer of 1987, claimant moved from Butte to Lewistown, Montana, to work for Blue Range Mining doing underground mining work.

5. Claimant was injured on August 3, 1989, when he struck his middle finger on a corner of a fan. After medical treatment to suture his finger, claimant returned to work the next day. (Tr. at 52.)

6. On August 14, 1989, claimant fell approximately 10 feet through rails at the mine catching himself by his chin. The only part of his body described as injured at the time was his chin.

Medical Evidence

7. The day of the injury claimant was seen by Dr. Berbert in Lewistown. Dr. Berbert noted that he complained of pain in his jaw, but "otherwise no discomfort."

8. In his deposition and at trial, claimant testified that he told Dr. Berbert that on the day of the injury he was extremely sore in the back, shoulders, neck and could not open his mouth. (Tr. at 56-57.) No such statements appear in the records of Dr. Berbert.

9. Claimant was given a release to return to work with no restrictions and returned to full-time employment the next day, August 15, 1989. Three days later he was terminated for safety reasons. (Tr. at 59.)

Subsequent Employment

10. In February of 1990, claimant went to work for Quality Pork in Minnesota. In his employment application, he represented he was not suffering from any disability. (Tr. at 99-100.) When claimant injured his finger and needed medical attention he saw Dr. Lillie and Dr. Janolo. Respondent, State Fund paid for the medical expenses for treatment and paid temporary total disability benefits for the resulting recovery. (Tr. at 99-101.)

11. On March 27, 1990, claimant told Dr. Janolo that he had been healthy all his life with no known significant medical problems. (Tr. at 101; Dep. Ex. No. 3 of Barnes Dep.)

12. After returning to work at Quality Pork, claimant alleged an injury to his low back. Quality Pork questioned whether a work-related injury occurred and claimant filed suit which was settled. (Tr. at 102.)

13. Claimant returned to Montana and received unemployment benefits from August to December 1990. Each week he indicated he was physically able and available to work.

14. Claimant worked for the Salt Lake Airport for a short time then returned to Butte to work for Town Pump. On November 24, 1991 he was fired for misappropriating funds. (Tr. at 108.)

Evaluation by Dr. Milanovich

15. Claimant was first evaluated by Dr. Milanovich on June 4, 1991, almost two years after the accident at Blue Range Mining. Dr. Milanovich could make no comment regarding claimant's condition at the time of claimant's August 14, 1989 industrial injury. Based upon the statements of claimant, Dr. Milanovich identified symptoms of difficulty in claimant opening his mouth, pain in his jaw, neck and shoulders as related to his August 14, 1989 injury. (Tr. at 9-10.)

16. Following his evaluation of claimant, Dr. Milanovich performed a substantial amount of dental work which was paid by respondent as medical benefits. Dr. Milanovich referred claimant to a Butte oral surgeon, Dr. Paul G. Sims for an evaluation and possible surgery.

Evaluation by Dr. Booth

17. The State Fund sent claimant for an evaluation by Dr. James L. Booth on January 27, 1992. After reading the report, the parties agreed that the State Fund would pay for orthodontic work to be done by Dr. Philip Milanovich and the physical therapy related to claimant's sprained capsular ligaments.

Evaluation by Dr. Sims

18. Dr. Sims examined the claimant on March 30, 1992, on a referral from Dr. Milanovich. After reviewing the medical records and examining the claimant, Dr. Sims prescribed surgical advancement of claimant's mandible. (Ex. No. 9 at 16.)

19. Respondent, State Fund refused to authorize the surgery on the grounds that the surgery is not related to his August 14, 1989 injury. Claimant has not decided if he wants the surgery recommended by Dr. Sims. (Tr. at 73.)

20. Dr. Sims relied upon the examinations and reports of Dr. Milanovich who concluded that claimant's August 14, 1989 industrial injury aggravated claimant's need for surgery on his mandible. No report or deposition was submitted to refute the testimony of Dr. Milanovich or the surgery recommended by Dr. Sims. The Court finds that the treatment by Dr. Milanovich and the surgery recommended by Dr. Sims is related to claimant's August 14, 1989 industrial injury.

21. Claimant is entitled to reasonable costs but not attorney fees since a legitimate dispute existed between the parties. The evidence does not support a finding of an unreasonable refusal to pay benefits that would entitle claimant to an award of attorney fees.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this proceeding pursuant to section 39-71-2905, MCA.

2. Claimant has presented credible evidence relating his present jaw symptoms to his August 14, 1989 industrial injury. If claimant consents to the recommended surgery such medical bills are payable by the respondent.

When claimant fell 10 feet through the rails at the Blue Ridge Mine on August 14, 1989, he struck his chin and the injury was accepted as compensable.

At the time of claimant's injury, medical benefits payable as the result of such injury were defined as follows:

Claimant has the burden of proving his case by a preponderance of the credible medical evidence. Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 598 P.2d 1099 (1979); Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973). To discharge this burden, the claimant must, by a preponderance of the probative, credible evidence, establish that the truth of the proposition is more probable than not. Hackney v. Liberty Mutual Fire Ins. Co., WCC No. 8405-2445 (March 11, 1985).

The deposition of claimant's treating orthodontist, Dr. Philip J. Milanovich, presents the best evidence of claimant's current condition. The examinations and treatments were thoroughly presented in the reports and the deposition of Dr. Milanovich.

Respondent argues that the opinions of Dr. Milanovich should not be accepted because of the prior instances in which claimant's actions have been less than responsible. The Court finds the opinions of Dr. Milanovich are supported by objective findings and believes his opinions to be credible to a reasonable degree of medical certainty.

Dr. Milanovich concluded that claimant's industrial injury on August 14, 1989, in which he fell at the mine striking his chin, did aggravate his jaw by causing sprained capsular ligaments.

In the course of treatment, Dr. Milanovich referred the claimant to Dr. Paul G. Sims for evaluation. Dr. Sims recommended surgery on claimant's mandible which the Court finds reasonable and results from claimant's August 14, 1989 injury. Any additional temporary total disability benefits after the surgery are payable at $200.50 per week.

3. Claimant is not entitled to additional temporary total disability benefits after his August 14, 1989 industrial injury.

The requirement for receiving temporary total disability benefits at the time of claimant's August 14, 1989 injury are set forth in section 39-71-701, MCA (1989).