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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1995 MTWCC 71
PACIFIC EMPLOYERS INSURANCE COMPANY
STAUFFER CHEMICAL COMPANY
Summary: Claimant sought 500 weeks of permanent partial disability benefits with respect to a 1981 back injury. Orthopedic surgeon, who was treating physician, testified that claimant reached MMI following work injury. His testimony, along with testimony from other physicians, indicated that claimant’s back condition would not have progressed to its present disabling point without additional injuries or aggravations for which the insurer was not liable.
Held: Claimant has not proven entitlement to benefits from this insurer where he did not prove that the 1981 industrial injury proximately caused his present disability. Note: this decision was reversed by the Montana Supreme Court in Briney v. Pacific Employers Insurance Co., 283 Mont. 346, 942 P.2d 81 (1997).
The trial in this matter was held on May 31, 1995, in Butte, Montana. Petitioner, Brett Briney (claimant), was present and represented by Mr. Andrew D. Huppert. Respondent, Pacific Employers Insurance Company (Pacific), was represented by Mr. Brendon J. Rohan. The claimant testified on his own behalf. William Goodrich, Margot Hart and Mike McNabb also testified. The depositions of claimant, Dr. Charles Canty, Dr. Michael Lahey, Dr. Gary Cooney, Dr. Patrick Robins and William Goodrich were submitted for the Court's consideration. Exhibits 1 through 16 and 18 through 20 were admitted by stipulation of the parties. Exhibit 17 was admitted over claimant's objection.
A trial transcript has not been prepared. Unless otherwise noted, the facts found herein are based on trial testimony.
Issues: Claimant is seeking 500 weeks of permanent partial disability benefits with respect to a 1981 back injury. He also seeks attorney's fees and a 20% penalty. Pacific contends that if claimant is awarded permanent partial disability benefits, it is entitled to an offset for the occupational disease benefits it has paid to claimant since October 11, 1993.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor of the witnesses, the exhibits, the deposition testimony, and the parties' arguments, the Court makes the following:
1. At the time of trial claimant was 35 years old. He is a high school graduate.
2. Claimant worked for Stauffer Chemical Company (Stauffer(1)) from 1977 until June 1993. He was initially employed in temporary positions cleaning furnaces but became a permanent employee in 1978. He has held various positions with the company, all of which involve heavy manual labor.
3. On May 24, 1981, claimant injured his back at work when he was "rodding" slag in a precipitator with an iron bar. He heard a pop in his back and experienced immediate low-back pain.
4. At the time of claimant's 1981 injury, Stauffer was insured by Pacific Employers Insurance Company. Pacific accepted liability for the claim and paid claimant temporary total disability and medical benefits.
5. Between 1981 and 1992 claimant suffered a number of injuries or incidents which caused acute episodes of low-back pain and in some instances pain radiating into his legs.
6. Claimant also suffered a lumbar sprain on March 8, 1981, when lifting tires off a truck at home. (Ex. 13 at 1.) The history of this injury was not presented to the physicians who testified in this case. Thus, they did not have an opportunity to address what, if any, significance the injury has with respect to the claimant's current condition. Lacking their assessments of the injury, I have given this prior injury no significance or weight in reaching my decision.
7. Following each of the incidents listed in paragraph 5, claimant was treated by a physician or chiropractor. Dr. Charles Canty, an orthopedic surgeon, treated claimant for his May 24, 1981 and September 9, 1991 injuries. (Canty Dep. at 8, 18-20.) Dr. R. J. Best treated claimant following the September 1982 and January 25, 1983 incidents. (Ex. 1 at 12, 17.) Dr. Douglas Smithson, a chiropractor, treated claimant following the January 20, 1983 incident. (Id. at 11, 13.) Dr. James Paulmann, a chiropractor, treated claimant following the January 28, 1985 incident. (Id. at 229.) Dr. John J. Sands, a chiropractor, treated him following the January 8, 1989 snowmobile accident. (Id. at 219.) Emergency room physicians at St. James Community Hospital treated him following his July 1, 1990 fall from a ladder. (Id. at 66-68.) Finally, Dr. Robins saw him following the March 3, 1993 incident. (Id. at 208.) Claimant was also treated for a time in 1993 and 1994 by Dr. Bruce Knutsen. (Id. at 56-61.)
8. Claimant lost work following his injuries of May 24, 1981, September 1982, January 20, 1983, January 25, 1983, and January 28, 1985. (Ex. 1 at 10, 12, 223-224, 229 and Ex. 14.)
9. Dr. Canty testified concerning his treatment of claimant following the May 24, 1981 injury. He first examined claimant on May 29, 1981, and discharged claimant from his care on June 19, 1981. (Canty Dep. at 8, 14.) He diagnosed a probable herniated nucleus pulposus or a disk extrusion at the left lumbosacral level. (Id. at 9.) That diagnosis was based on a positive response to straight raising of the left leg test. (Id.) By June 19, 1981, claimant had improved sufficiently for Dr. Canty to release him to work. (Id. at 11.) In Dr. Canty's opinion, claimant's herniated disk had returned to its normal anatomical configuration and claimant could work without restrictions. According to Dr. Canty, claimant suffered no permanent impairment. (Id. at 13.)
10. Claimant underwent an MRI of his low back on February 19, 1992. (Ex. 1. at 39.) At the L4-5 level, the MRI disclosed a "large extruded disc that is central, slightly to the left, but it extends to the right into the lateral portion of the spinal canal." (Id.) It also identified a "large lateral herniated disc that is entirely lateral on the left" at the L5-S1 interspace. (Id.) Finally, it disclosed degenerative disk changes at the L4-5 and L5-S1 levels. (Id.)
11. Following the MRI, claimant was treated by Dr. Patrick Robins, who is an orthopedic surgeon. Dr. Robins first examined claimant on March 2, 1992, at which time claimant was having mechanical low-back pain but no significant symptoms of sciatica. (Ex. 1 at 207; Robins Dep. at 10.) Dr. Robins saw claimant again on March 17, 1992, and noted that claimant had reinjured his low back on March 3, 1992. (Robins Dep. at 10.) Following the March 3, 1992 injury, claimant began experiencing sciatica in the right lower extremity. (Id.) During a follow-up visit of April 13, 1992, claimant told Dr. Robins that he was improving. (Id. at 11.) Meanwhile, claimant took off from work and began physical therapy.
12. Dr. Robins saw claimant for the last time on May 11, 1992. Claimant was "doing very well" and the doctor released him to return to work. (Id. at 11-12.) Claimant, who had been off work approximately three months, returned to his job at Stauffer.
13. In the summer of 1993, claimant experienced difficulty with a pilonidal sinus. (Ex. 1 at 46.) On July 16, 1993, Dr. P.G. Poore surgically excised the sinus. (Id. at 48.)
14. During his convalescence from surgery, claimant was unable to physically exercise and he experienced a worsening of his low-back pain.
15. Due to his low-back condition the claimant was unable to return to his job at Stauffer. On March 11, 1994, Dr. Knutsen determined that claimant was 100% disabled from his regular work at Stauffer. (Id. at 59.) As previously mentioned, Dr. Knutsen treated claimant during 1993 and 1994. Of some significance, he also acted as the plant physician for Stauffer.
16. Stauffer's insurer in 1993 accepted liability for claimant's back condition as an occupational disease. It commenced paying temporary total disability benefits on October 11, 1993, and those benefits were still being paid at the time of trial.
17. Claimant disagrees with the insurer's decision to treat his condition as an occupational disease. He contends that his current disability was caused by the 1981 accident and that he is entitled to 500 weeks of permanent partial disability benefits on account of that accident.
18. The latest medical evaluation of claimant appears to be an impairment evaluation done by Dr. Robins on February 21, 1995. At the time of the evaluation, the doctor characterized claimant's condition as "mechanical type of low back pain with bilateral sciatica, right greater than left." (Robins Dep. at 16.) He rated claimant's impairment due to his low-back condition at 10% of the whole man. (Id.) He agreed that claimant cannot return to work doing manual labor. (Id. at 16.) He also concluded that claimant was at maximum medical improvement. (Id.)
19. Drs. Canty, Robins, Cooney and Lahey testified by deposition. Much of their testimony was focused on the relationship of the 1981 accident to claimant's current condition and disability. Their testimony underscores the importance of both the form and substance of the questions put to them and the necessity that their testimony specifically address the statutory prerequisites to compensation. At first glance, many of the doctors' answers support a conclusion that claimant's current condition and disability was caused by the 1981 injury. However, a careful analysis of their full testimony shows that while the 1981 injury may well have contributed to claimant's ultimate condition, it is not solely responsible for it. Rather, his ultimate condition is due to the cumulative effect of the multiple injuries or aggravations he has suffered over the years. The evidence is unpersuasive that absent the additional injuries or aggravations, the claimant's back condition would have progressed to its present point or that he would now be unable to work.
20. Dr. Canty's determination that claimant reached maximum medical improvement within weeks after his 1981 injury is persuasive. He was the treating physician and in the best position to make that determination. The determination was not contradicted, although Dr. Robins felt it was rendered prematurely. It is supported by the facts that claimant's condition improved dramatically and rapidly and that he was able to continue working for more than a year until another incident precipitated renewed pain.
21. Claimant testified at trial that he has not been pain free since his 1981 injury. I did not find his testimony credible and the medical records do not reflect a history of continual pain. Rather those records reflect intermittent pain. (Ex. 1 at 7, 20, 177, 190.)
22. A preponderance of the evidence in this case establishes that over a ten year period the claimant suffered a series of injuries or aggravations which cumulatively caused his current back condition.
CONCLUSIONS OF LAW
1. The law in effect at the time of the injury governs the claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).
2. At the time of his injury, permanent partial disability was defined as follows:
§39-71-116(12), MCA (1979).
3. Claimant has the burden of proving that he is entitled to workers' compensation benefits by a preponderance of the probative, credible evidence. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979). Section 39-71-116(12), MCA (1979) defines permanent partial disability in terms of a "condition resulting from injury" which "results in the actual loss of earnings or earning capability." The claimant bears the burden of proving the injury is the proximate cause of the claimant's disabling condition. Eastman v. Transport Ins., 255 Mont. 262, 266, 843 P.2d 300, 302 (1992); Lee v. Group W Cable TCI of Montana, 245 Mont. 292, 295, 800 P.2d 702, 705 (1990); Walker v. UPS, 262 Mont. 450, 454, 456, 865 P.2d 1113, 1116-117 (1993).
As noted in Finding of Fact 19, medical testimony concerning causation must be carefully analyzed. Testimony that a condition is "related" to a current disability may or may not establish causation depending on how the physician understood the word "related." In this case all but one of the four testifying physicians agreed that in a broad sense claimant's current low-back condition is "related" to his 1981 injury. But their further testimony failed to establish the sort of relationship which fulfills the proximate cause requirement.
None of the doctors who testified in this case attributed claimant's current condition solely to his 1981 accident. None could testify on a more probable-than-not basis that claimant would be disabled irrespective of the later injuries or incidents. Rather, their testimony affirmatively established that the subsequent incidents contributed to his disability.
Dr. Canty, who treated claimant in 1981, and was in the best position to assess his injury and recovery, testified that claimant reached maximum healing without any permanent impairment and was able to return to work in June 1981 without restrictions. While he opined that claimant's current condition is related to the 1981 injury, he did so on the basis that (1) claimant's current symptoms are "similar" to his 1981 symptoms, and (2) the 1981 injury increased claimant's susceptibility to additional injuries. He testified that claimant's back condition is the cumulative result of claimant's many injuries, each of which increased the severity of his disk disease. In his opinion, absent the post-1981 injuries, the claimant could have continued working without restriction.
Dr. Robins initially weighed in with an opinion that claimant's current symptoms "are likely attributable to the 1981 injury." (Robins Dep. at 22.) As did Dr. Canty, he also felt that "the initial incident of 1981 set the stage for a weakening in his lower back that was aggravated by conditions subsequent to that time." (Id. at 42.) Upon cross-examination, it became clear that he too considered claimant's condition to be the cumulative result of claimant's successive injuries. (Id. at 43.) He opined that each of claimant's injuries decreased his ability to engage in physical labor. (Id. at 48.) It is clear from his testimony that while Dr. Robins felt that the 1981 injury played a primary role in claimant's ultimate condition, it was also his opinion that the subsequent injuries permanently worsened and aggravated claimant's 1981 condition.
Dr. Cooney testified that he was unable to specifically relate claimant's current condition to either the 1981 injury or the subsequent injuries. Concerning the 1981 injury, he could go no further than to say that it probably reduced his ability to perform physical labor because "it would likely be aggravated by continued physical labor." (Cooney Dep. at 54.) Ultimately, he said ". . . I don't think you can refer to any specific injury as the cause that he was unable to return to work." (Id. at 49.)
Finally, Dr. Lahey specifically confirmed that the various incidents over the years were in fact injuries but was unable to determine whether there is any relationship between claimant's current condition and his 1981 injury. While also declining to attribute claimant's condition to any specific injury, Dr. Lahey agreed with Dr. Canty's opinion that absent the additional injuries, the claimant probably could have continued working after his 1981 injury.
The doctors' testimony taken as a whole establishes that the numerous incidents which triggered acute back pain following claimant's 1981 injury were permanent aggravations of claimant's low-back condition. None of the physicians opined that claimant's condition would be disabling irrespective of the subsequent injuries. Two physicians agreed that it would not. Drs. Canty and Robins testified that claimant's subsequent injuries contributed to claimant's condition and further impaired his ability to work. Dr. Cooney declined to relate claimant's condition to any of the injuries. Dr. Lahey similarly did not express an affirmative opinion, but indirectly confirmed the significance of the subsequent injuries by first confirming that they were in fact injuries, and by affirming that he did not disagree with Dr. Canty's opinion that claimant in all probability could have continued working but for the subsequent injuries.
Overall, the medical and other evidence preponderates in favor of the conclusion, which I reach, that claimant's current condition is attributable to a series of back injuries or aggravations and not just to his 1981 injury. The evidence further preponderates in favor of the conclusion that the incidents subsequent to 1981 permanently aggravated his condition. Claimant reached MMI shortly after the 1981 accident. He returned to work and worked uneventfully for over a year before he experienced renewed pain precipitated by a specific incident. Despite his testimony at trial, I am persuaded that the claimant has not suffered continuous pain since 1981 but rather that his back pain has been intermittent and chiefly associated with the various aggravations he has suffered.
This case is distinguishable from Walker, in which the Supreme Court held that there was insufficient evidence to establish that flare-ups subsequent to claimant's initial back injury were injuries within the meaning of the Workers' Compensation Act. In that case, there was positive medical testimony that claimant's condition was the result of a 1985 industrial accident. While claimant had experienced subsequent episodes of back pain that may have been related to certain incidents, the record did not indicate they were discrete injures which permanently aggravated his condition. One treating physician indicated in his record that a 1986 incident did not permanently aggravate claimant's condition. In this case the claimant failed to establish by a preponderance of evidence that his current condition was caused by his 1981 injury. The best that can be said for his evidence is that the 1981 injury "set the stage" for future aggravations. The claimant in this case reached maximum healing long before the subsequent incidents and, unlike Walker, there is medical evidence that the "incidents" in this case were in fact injuries which caused permanent worsening of his condition. Unlike Walker there is substantial, persuasive medical evidence in this case which indicates that absent the subsequent injuries the claimant could have continued working indefinitely despite the 1981 injury.
Claimant has not satisfied his burden of proving that the 1981 injury was the proximate cause of his current condition and disability.
4. Since he has failed to prove that his 1981 industrial accident proximately caused his disability, the claimant is not entitled to permanent partial disability benefits.
5. The claimant has not prevailed and is not entitled to attorney fees, costs or a penalty.
1. The claimant is not entitled to permanent partial disability benefits on account of his May 24, 1981 industrial accident.
2. The claimant is not entitled to attorney fees, costs or a penalty.
3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
4. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
Dated in Helena, Montana, this 18th day of September, 1995.
c: Mr. Andrew D. Huppert
1. Stauffer is now known as Rhone-Poulenc but we will continue to refer to the company.
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