IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1997 MTWCC 19

WCC No. 9611-7642

---

DONALD BAUMGARTNER

Petitioner

vs.

LIBERTY NORTHWEST

Respondent/Insurer for

RIVERSIDE HEALTH CARE CENTER

Employer.

---

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

Summary: 39-year old CNA filed first report regarding low back pain that increased in intensity during one work shift. No specific incident was reported. The insurer accepted liability for the low-back condition as an injury, paying some benefits. Claimant was diagnosed with degenerative disc disease and treated conservatively. An IME physician recommended against his return to CNA work. She opined claimant suffered from an occupational disease, but attributed 40% of his problem to non-work related factors including obesity, smoking, and the general aging process. The insurer did not dispute the IME physician's opinion, but argued claimant should be estopped from seeking occupational disease benefits where the claim was accepted and compensated as an injury. The parties stipulated that if claimant cannot return to work as a CNA, his minimum hourly wage loss is $1.50.

Held: Estoppel is an affirmative defense that must be plead by the insurer. Where the defense was not plead and does not appear in the pretrial order, the insurer cannot raise it at trial. Moreover, the estoppel defense is meritless where claimant did not mislead the insurer. He completed a claim form used for both injuries and occupational diseases and the insurer accepted the claim as an injury. Claimant is entitled to benefits under section 39-72-405(2), MCA (1995), where the parties agree claimant suffers from an occupational disease, the employer terminated his employment based on doctor's advice he could no longer perform the work, and the parties stipulated he suffered a wage loss. Although claimant's wage loss would amount to $10,000, the maximum amount that may be awarded under section 39-72-405, MCA (1995) in little more than three years, the Court awarded only $6,000 in light of section 39-71-706, MCA (1995), based on the IME physician's apportionment of only 60% of the causation of claimant's condition to work.

Topics:

The trial in this matter was held in Missoula, Montana, on January 23, 1997. Petitioner, Donald Baumgartner (claimant), was present and represented by Mr. Rex Palmer. Respondent, Liberty Northwest (Liberty), was represented by Mr. Larry W. Jones.

Exhibits: Exhibits 1 through 10 were admitted without objection.

Witnesses and Depositions: Claimant and Sandy Scholl were sworn and testified. In addition, the parties submitted the deposition of Dana M. Headapohl, M.D., for the Court's consideration. No transcript of the trial has been prepared.

Issue Presented: The sole issue presented for determination is whether claimant is entitled to an award under section 39-72-405, MCA, and if so, in what amount.

Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition, the exhibits, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

1. Claimant is 39 years of age. He has worked as a certified nurse's aide (CNA) for approximately 16 years.

2. On August 15, 1995, the claimant was working as a CNA for Riverside Health Care Center (Riverside) in Missoula, Montana. He was working full time and earning $6.50 an hour. (Ex. 1.)

3. On August 15, 1995, claimant experienced the onset of low-back pain while at work.

4. At that time, Riverside was insured by Liberty.

5. On August 15, 1995, claimant filled out Riverside's incident report describing the onset of pain as follows:

(Ex. 2 at 2.)

6. As a result of claimant's back pain, a First Report of Occupational Injury or Occupational Disease (First Report) was completed and submitted to Liberty. (Ex. 1.) A representative of Riverside signed the completed report on August 17, 1995, and claimant signed it on August 18, 1995.

7. The First Report was prepared on a form supplied by Liberty. The form was captioned as set out in Finding 6.

8. The First Report filed on behalf of claimant included the following description of the onset of claimant's back pain:

(Id.; emphasis added.)

9. Dr. James R. Burton, an orthopedic surgeon, examined claimant on August 21, 1995. His office note reflects the following history:

(Ex. 2 at 13.) Dr. Burton diagnosed "[l]ikely degenerative disc disease at L3-4" and prescribed Prednisone, Flexeril, and physical therapy. (Id.)

10. On August 31, 1995, Liberty accepted liability for claimant's low-back condition and forwarded claimant a check for temporary total disability benefits. (Ex. 10.) Liberty accepted the claim as an injury compensable under the Workers' Compensation Act. (Id.; Trial Test. of Sandy Scholl.)

11. On September 12, 1995, Dr. Burton released claimant to return to "lighter capacity duty for one week and then gradually add heavier work for two weeks until he is at his job of injury." (Ex. 2 at 14.) However, Dr. Burton went on to qualify his release, saying, "However, I told the patient that since his condition is rather chronic in nature he should consider [a] vocational change." (Id.)

12. On September 20, 1995, Dr. Burton responded to a Work Release/physical Limitations Request sent to him by Liberty. He restricted claimant to light/medium work and indicated that the restriction was permanent. (Id. at 12.)

13. Claimant attempted to return to work at Riverside on September 6, 1995. (Id. at 3; Trial Test. of claimant.) However, he experienced renewed back pain and worked only four hours. (Ex. 2 at 3.) Thereafter, he did not return to work for Riverside.

14. At the time of trial, claimant was working for Opportunity Resources doing janitorial type work at the Missoula City Hall. (Trial Test.) He works approximately 20 hours a week and earns $4.51 per hour.

15. On October 9, 1995, Dr. Dana Headapohl performed an independent medical evaluation at the request of Liberty. (Ex. 2 at 36; Headapohl Dep. at 6.) Dr. Headapohl is board certified in occupational and environmental medicine.

16. Dr. Headapohl reviewed claimant's medical records, including records for low-back pain in February and November of 1994 and January, April, and August of 1995. (Ex. 2 at 36.) She took an extensive medical history from claimant, reporting his back symptoms as follows:

(Id. at 37.) Finally, she performed a physical examination of claimant.

17. Dr. Headapohl's impression of claimant's low back was:

(Id. at 41.) She opined that claimant had "reached maximum medical healing from the injury of August 15, 1995" and that claimant's "degenerative disc disease did not result from the injury in August." (Id.) She said that he should be restricted to light to sedentary jobs due to a "combination of obesity, deconditioning and low back vulnerability." (Id.) Finally, she concluded, "[h]e is not compatible with his time-of-injury job, that of the CNA." (Id.)

18. During her deposition, Dr. Headapohl confirmed her opinion that any specific exacerbation that claimant may have suffered on August 15, 1995, had resolved. (Headapohl Dep. at 9.) However, she also testified that claimant has "underlying mechanical osseous condition of the back which renders him vulnerable to exacerbations" and that "60 percent of his problem [his underlying condition] was occupationally related and 40 percent secondary to non work [sic] related factors including obesity and smoking, and the general aging processes." (Id. at 8, 11.) She explained the basis for her apportionment, as follows:

(Headapohl Dep. at 22-23.)

19. At trial Liberty did not dispute Dr. Headapohl's testimony that claimant suffers from an occupational disease or from her apportionment opinion. Counsel for Liberty agreed that, should the Court find claimant is not estopped from pursuing an occupational disease claim, then it agrees that he in fact suffers from an occupational disease which contributes 60% to his condition. Counsel for claimant represented that claimant does not dispute the apportionment. The parties are bound by the agreements and concessions they made in open Court. Thus, in accordance with Dr. Headapohl's opinions and counsels' representations, I find that claimant suffers from an occupational disease which is responsible for 60% of his degenerative low-back disease.

20. Dr. Headapohl further testified that claimant should not be working as a CNA on account of the heavy lifting required by that job. (Id. at 13-14.) When asked by counsel for Liberty if she had an opinion concerning whether claimant was capable of performing CNA work prior to August 15, 1995, she said:

(Id.) In answer to further questions put to her by counsel for claimant, she said:

(Id. at 28-29.)

21. Dr. Headapohl's opinion is reasoned and persuasive. I find that while claimant's medical condition does not make it "impossible" for him to work as a CNA it nonetheless is medically inadvisable for him to do so.

22. The parties have stipulated that if claimant cannot return to work as a CNA then he has a minimum hourly wage loss of $1.50.

CONCLUSIONS OF LAW

1. Liberty contends that claimant is estopped from seeking benefits under the Occupational Disease Act (ODA) because his claim was accepted as compensable under the Workers' Compensation Act (WCA). Liberty did not raise this contention in its initial response or the Pretrial Order. Since estoppel is an affirmative defense, Rule 8(c), Mont. R. Civ. P.,⁽¹⁾ it must be raised in the response and may not be raised for the first time at trial. See Haag v. Montana Schools Group Ins. Authority, 274 Mont. 109, 115, 906 P.2d 693, 697 (1995).

Moreover, an estoppel defense in this case is meritless. Liberty must prove six elements to establish an equitable estoppel. Dagel v. City of Great Falls, 250 Mont. 224, 234, 819 P.2d 186, 192-93 (1991). They are as follows:

Id. (quoting from Sweet v. Colborn School Supply, 296 Mont. 367, 372-73, 639 P.2d 521, 524 (1982). Liberty has failed to show that it was misled by the claim or that it was unaware of the truth regarding the matter, thus it has failed to establish element 2. The claim form does not designate the claim as one for workers' compensation benefits. It is a combined form allowing claims under both the ODA and the WCA. Claimant did not describe any specific incident recognizable under the WCA, as required by section 39-71-119(2), MCA (1995).⁽²⁾ The claim expressly indicates that claimant could not identify any specific accident. Thus, claimant's position in this case is wholly consistent with his claim of an occupational disease. Liberty's decision to accept the claim under the WCA rather than the ODA was not the fault of the claimant.

Moreover, even if claimant suffered an exacerbation of his condition on account of a specific incident occurring on August 15, 1995, Dr. Headapohl's testimony establishes that such exacerbation was temporary. Thus, Liberty remains liable for occupational disease preexisting any event on August 15, 1995.

2. Since the parties agree that claimant suffers from an occupational disease, claimant is entitled to benefits under section 39-72-405(2), MCA (1995), if he can otherwise meet the requirements of the section. The subsection provides:

Based on his physician's determination that he could no longer perform the duties of a CNA, Riverside terminated claimant's employment as of December 27, 1995, writing:

(Ex. 2 at 1.)

Thus, the requirement that claimant be discharged or transferred from his employment is satisfied.

The requirement for a medical panel determination of the inadvisability of claimant continuing to work at his previous employment is not met. However, Liberty did not list among its contentions, nor did it argue, that the medical panel provision is applicable to this case. The Court will not raise the issue sua sponte. Even if a medical panel addressed the matter, such determination would not be conclusive and could not deprive either party of his or its day in court. Therefore, the issue is not jurisdictional and it is not appropriate for the Court to raise it.

Dr. Headapohl is a member of the Occupational Disease Panel, although she was not designated by the Department of Labor and Industry to perform a panel evaluation of claimant. Nonetheless, she did examine claimant and concluded that it is medically inadvisable for claimant to return to his time-of-injury job. Her only hesitation in absolutely restricting him from returning to his job was based on legal requirements arising from the Americans with Disabilities Act (ADA). She also acknowledged that some persons with claimant's condition continue to perform heavy labor.

Under section 39-72-405, MCA (1995), the standard for an award is whether it is "inadvisable for the employee on account of a nondisabling occupational disease to continue in employment." The statute does not require a finding that it is "physically impossible" for claimant to return to work. Dr. Headapohl's testimony establishes that claimant's occupational disease makes it inadvisable for him to return to work as a CNA, thus satisfying the section.

3. Since claimant has established his eligibility for an award under section 39-72-405, MCA (1995), and the parties cannot agree on the amount of the award, the Court must determine the amount. § 39-71-2401(1) and -2411(c), MCA. The parties have stipulated that claimant has a wage loss of $1.50 an hour. That amounts to an annual loss of $3,128.40. Thus, in little more than three years, claimant's wage loss will amount to $10,000, which is the maximum award available under section 39-72-405.

Liberty argues, however, that any award must be apportioned pursuant to section 39-72-706(1), MCA (1995), which provides:

Section 39-72-706(1), MCA, applies to any award made under section 39-72-405(2), MCA. Section 39-72-405(2), MCA, expressly provides that the payment thereunder is "compensation." It says that "compensation may be paid, not exceeding $10,000." The statutes are plain on their faces and must be applied as written. Russette v. Chippewa Cree Hous. Auth., 265 Mont. 90, 93-94, 874 P.2d 1217, 1219 (1994). Since any award to claimant is "compensation", section 39-72-706(1), MCA, requires that it must be reduced by the percentage attributable to non-occupational factors, i.e., by 40%.

As claimant points out, apportioning awards under section 39-72-405(2), MCA, may lead to anomalies. (Petitioner's Response to Respondent's Post-trial Briefs at 4.) In his example, two workers both suffering from disease 50% attributable to non-occupational factors, one of whom suffers a wage loss of $15,000 and the other a wage loss of $20,000, would both receive $5,000. However, the anomaly cannot be helped. To carry the examples a step further, if the awards are not apportioned, two workers having $20,000 wage losses, one of whose disease is 50% attributable to his occupation and the other whose disease is 100% attributable to his occupation, would both receive identical awards of $10,000. A worker with a $100,000 wage loss and no apportionment would similarly only receive $10,000. In any event, the Court must apply the plain language of the statute requiring that any compensation otherwise payable to a claimant be reduced by the percentage attributable to non-occupational factors.

JUDGMENT

DATED in Helena, Montana, this 14th day of April, 1997.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Rex Palmer
Mr. Larry W. Jones
Submitted: April 2, 1997

1. Rule 8(c) provides:

2. Section 39-71-119(2), MCA (1995), provides:

(2) An injury is caused by an accident. An accident is:

(a) an unexpected traumatic incident or unusual strain;

(b) identifiable by time and place of occurrence;

(c) identifiable by member or part of the body affected; and

(d) caused by a specific event on a single day or during a single work shift