<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> Cherol Branch

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1999 MTWCC 57

WCC No. 9906-8251


CHEROL BRANCH

Petitioner

vs.

LIBERTY NORTHWEST INSURANCE COMPANY

Respondent/Insurer for

NORTHERN MOTOR INN

Employer.


JUDGMENT

Summary: Motel housekeeper filed claim for injury but credible evidence indicated her cervical disk condition arose over two week period due to lifting heavy laundry. Although claimant had not filed an occupational disease claim, and no occupational disease examination had been conducted, the parties waived their rights to a medical panel examination and stipulated that the Court may determine whether she suffered an injury or occupational disease.

Held: Claimant suffered occupational disease.

Topics:

Injury and Accident: Accident. Motel housekeeper filed claim for injury but credible evidence indicated her cervical disk condition arose over two week period due to lifting heavy laundry, not from any accident causing sudden onset. Although claimant had not filed an occupational disease claim, and no occupational disease examination had been conducted, the parties waived their rights to a medical panel examination and stipulated that the Court may determine whether she suffered an injury or occupational disease.

Injury and Accident: Causation. Motel housekeeper filed claim for injury but credible evidence indicated her cervical disk condition arose over two week period due to lifting heavy laundry, not from any accident causing sudden onset. Although claimant had not filed an occupational disease claim, and no occupational disease examination had been conducted, the parties waived their rights to a medical panel examination and stipulated that the Court may determine whether she suffered an injury or occupational disease.

Occupational Disease: Disease. Motel housekeeper filed claim for injury but credible evidence indicated her cervical disk condition arose over two week period due to lifting heavy laundry, not from any accident causing sudden onset. Although claimant had not filed an occupational disease claim, and no occupational disease examination had been conducted, the parties waived their rights to a medical panel examination and stipulated that the Court may determine whether she suffered an injury or occupational disease.

1 The trial in this matter was held on August 31, 1999, in Kalispell, Montana. Petitioner, Cherol Branch (claimant), was present and represented by Mr. Garry D. Seaman. Respondent was represented by Mr. Larry W. Jones. Exhibits 1 through 9 were admitted without objection. Claimant, Tammy Derbyshire and Le Coe were sworn and testified. In addition the Court reviewed and considered the depositions of claimant, Dr. Robert D. Schimpff, and Dr. Kendal Flindt.

2 Prior to the trial testimony, the parties waived their rights to a medical panel examination and stipulated that the Court may consider whether the claimant suffered either an industrial injury or an occupational disease.

3 After all evidence had been presented, the Court deemed the matter submitted and rendered its decision from the bench, holding that the claimant sustained an occupational disease and not an injury. I further awarded costs to the claimant and denied attorney fees

4 The parties agreed that a transcript of the Court's oral decision shall constitute its findings of fact and conclusions of law. A copy of the transcript is attached to this Judgment. Summarized, I found that claimant's symptoms developed over approximately a two-week period of time when she was lifting heavy, wet laundry. I did not find her testimony of a sudden onset of symptoms credible. Medical testimony supported a finding that claimant's condition developed as a result of her lifting wet laundry over the approximate two-week period.

5 Accordingly, Judgment is hereby entered as follows:

6 1. Claimant is suffering from an occupational disease which caused a cervical disk condition. Since the claimant is found to have sustained an occupational disease, the respondent shall pay claimant's medical bills for treatment of her cervical condition.

7 2. In accordance with Lockhart v. New Hampshire Ins. Co., 1999 MT 205, claimant's attorney is entitled to recover attorney fees out of the medical benefits to be paid.

8 3. The parties shall determine what other benefits are owed under section 39-72-405, MCA. The Court retains continuing jurisdiction to resolve any disagreement over non-medical benefits presently due.

9 4. Claimant is entitled to her costs in the amount of $553.30.

10 5. Liberty Northwest Insurance Company has not acted unreasonably, therefore claimant is not entitled to attorney fees under section 39-71-611, MCA. Claimant is not entitled to attorney fees under section 39-71-613, MCA, which the Court finds inapplicable.

11 6. This Judgment is certified as final for purposes of appeal pursuant to ARM 24.5.348.

12 7. Any party to this dispute may have 20 days in which to request an amend-

ment or reconsideration of this Judgment.

DATED in Helena, Montana, this 27th of September, 1999.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Garry D. Seaman
Mr. Larry W. Jones
Submitted: August 31, 1999
Attachment: Partial Transcript of Proceedings


TRANSCRIPT OF COURT'S ORAL DECISION IN

BRANCH V. LIBERTY NORTHWEST INSURANCE COMPANY,

1999 MTWCC 57 (WCC NO. 906-8251)

1 THE COURT: Well, let's go back on

2 the record.

3 As I indicated when I started out with

4 this, I had read all the depositions and I had read

5 the medical records and looked at them pretty

6 carefully, and I listened carefully to the

7 testimony, and I am going to hold that this is an

8 occupational disease, not an injury.

9 The things that are persuasive, number 1,

10 the physicians' testimony support that, assuming

11 that she's telling the truth about lifting heavy

12 objects over that period of time. That's number 1.

13 Number 2, from the very, very beginning we

14 have information that's consistent with her lifting

Page 1

1 laundry and consistent with laundry aggravating or

2 causing a progression here of her neck symptoms.

3 When I looked at Dr. Schimpff's record,

4 there's an indication of a two-week history of

5 increasing left arm pain, which would indicate that

6 this is a developing progression thing. That's on

7 page 1. I don't know whether Dr. Schimpff wrote

8 that. I don't know exactly who wrote that.

9 The next page says, Pain in left arm, six

10 weeks, I think that's probably -- There's six weeks

11 in that one, but when you go to the next page, it's

12 two weeks in arm pain. But certainly her history

13 there is consistent with the story that she's

14 lifting heavy laundry.

15 I don't have any contradictory evidence to

16 indicate to me that she's lying about lifting that

17 heavy laundry. If anything, I have confirmatory

18 evidence from Lee Koe that she was lifting fairly

19 heavy laundry. The doctors confirmed that that was

20 probably under those circumstances the thing that

21 was causing this progression, assuming that sort of

22 history. When I go to Dr. Schimpff's record,

23 probably that's the most convincing thing for me to

24 say that this is an occupational disease and not an

25 injury.

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1 And maybe Claimant may feel that she had

2 to have a specific incident to make a Workers'

3 Compensation claim and maybe that's getting a little

4 bit in the way of this -- of the history that's

5 being given here by her.

6 But anyway, if you look at Exhibit A, it

7 says, Head housekeeper for North -- What is it?

8 What do they call the motel? Whatever the motel's

9 name is, does lots of lifting, no clear trauma. And

10 again, that's consistent with her doing some pretty

11 heavy lifting of this laundry over a fairly short

12 period of time, couple of weeks, but not having any

13 clear trauma, and I don't think Dr. -- Yeah, this is

14 Dr. Schimpff -- would have written that down, No

15 clear trauma, if she had reported to him that there

16 was a specific incident. So I'm not persuaded there

17 was a specific incident on the 19th, but I am

18 persuaded that over that two-week period there was a

19 progression and that laundry was causing a

20 progression, her lifting of that laundry.

21 I'm also -- You know, when you get into

22 history, the one thing that seems to scream at me in

23 this case is that she was in a lot of pain on the

24 20th. And I'm not convinced her recollection of

25 what she told the doctors is all that accurate. I

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1 think the doctors' records are probably more

2 accurate than what her recollection is, but it

3 just -- From the testimony, from the way she acted,

4 the fact that she got surgery really quickly, tells

5 me that she was in an awful lot of pain, and that

6 was an acute thing.

7 And the final thing that convinced me,

8 there's no other explanation here other than

9 something that's spontaneous, but I've got this

10 record where she's reporting right from the very

11 beginning a progression, and that progression is

12 over a period of time that she's doing some fairly

13 heavy lifting.

14 So that's my resolution of the case, and

15 I'll leave it up to counsel to figure out what those

16 medical bills are and what other benefits are owed.

17 And I don't make any determination on what might be

18 due under -- What is it? Section 405 or 407? I

19 forget what section it is. 405. Larry knows the

20 section numbers better than I do.

21 MR. SEAMAN: I guess the only other

22 issue we have are costs and attorney fees.

23 THE COURT: Costs you get. Attorney

24 fees -- I would have to find unreasonableness. Do

25 we have attorney's fees under the Occupational

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1 Disease Act at this point?

2 MR. JONES: Your Honor, my

3 recollection, and I can consult our code, is that it

4 contemplates a hearing before the Department. We

5 have the jurisdictional change now.

6 THE COURT: Right. Whatever the

7 Department could do, I can probably do. Let me look

8 at it and see what the section says. If there's a

9 separate section as far as -- under the Workers'

10 Comp. Act you have to prove unreasonableness.

11 MR. JONES: If I may, your Honor.

12 THE COURT: Go ahead.

13 MR. JONES: This case was initially

14 brought and pled under the injury statute.

15 THE COURT: Right.

16 MR. JONES: I would have to say the

17 Claimant didn't prevail, and it was only here at

18 trial that we added the O.D. issue in the interest

19 of judicial economy. And we didn't really have a

20 claim for an O.D. until today, so I would say that

21 would take care of that issue because the Claimant

22 didn't prevail on the issue she brought.

23 THE COURT: Under the Workers' Comp.

24 Act you sure have to prove unreasonableness in any

25 event.

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1 What do you think, Garry?

2 MR. SEAMAN: I think they were

3 unreasonable. They didn't pay any of the medicals

4 on this case. I didn't get to bring in how much we

5 had in medicals, but they were substantial.

6 THE COURT: I assume that.

7 MR. SEAMAN: Those haven't been

8 paid. The creditors are there.

9 THE COURT: I know. I understand

10 that.

11 MR. SEAMAN: Whether it was an injury

12 or occupational disease, she was entitled to those

13 temporary total disability benefits when she was

14 healing up from that surgery. She was entitled to

15 have those medical bills paid, whether or not it was

16 an injury or an occupational disease. Based upon

17 that, I think they were unreasonable in that sense.

18 They did not send this to the panel for

19 any reason. If they thought it was an O.D. claim,

20 they just simply left her out there saying this

21 didn't happen within the course and scope of

22 employment, and there was no evidence anywhere that

23 this did not happen within the course and scope of

24 employment. It's clear from everything that came

25 in.

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1 MR. JONES: If I may, your Honor.

2 THE COURT: Go ahead.

3 MR. JONES: I think you would agree

4 the law is clear that an insurer doesn't have to

5 solicit a claim. The Galusha, Higgins and Galusha

6 claim says that, Devlin versus those people, and for

7 Liberty to pay the O.D. would have to say, No, we're

8 soliciting an O.D. from you and you have to pursue

9 your injury claim. So that's how we would address

10 that argument.

11 In the Ronnie Lewis case, this Court found

12 a claimant's lack of credibility regarding the

13 various testimony in that case with which you're

14 more than familiar, your Honor. That lack of

15 credibility led you to conclude no injury ever

16 occurred at work.

17 So here there was a question of

18 credibility given the discrepancy between her claim

19 and the doctors' reports, and the Court could have

20 inferred, had it found her not credible, to the

21 extent you did Ronnie Lewis, that in fact she had

22 not been hurt at work. And in Ronnie Lewis you said

23 it's not necessary to show how she got hurt. It's a

24 course and scope issue. So Liberty's entitled, I

25 think, to rely on that case any time there's an

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1 issue of credibility, and I think the Court would

2 agree, any time there's a major discrepancy between

3 the physicians' records and a claimant's reports,

4 there's an issue of credibility.

5 THE COURT: Well, I don't know

6 whether I would go quite that far, but, I mean,

7 certainly in many cases that may be true and

8 probably is true.

9 Well, here's what I think. First, I think

10 Larry is right. There was only a claim for the

11 injury, and that's what they were -- that's what

12 they were defending against and they have prevailed

13 on that particular point.

14 Second, I think I would be hard-pressed to

15 hold him unreasonable particularly where there's

16 representation of counsel when the occupational

17 disease case hasn't been pressed in the

18 alternative. And one of the problems is if I just

19 ruled on the -- I can't speak today. I need Lee

20 Koback in here to articulate for me. If I ruled on

21 this case in its original posture, then you would

22 have gone back, run through the mill, and then

23 certainly you could have filed an Occupational

24 Disease case, and certainly at that point they would

25 have had a responsibility to do it. Whether or not

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1 it's good adjusting for them not to do that is

2 another -- is another issue, but neither side

3 pursued that.

4 The other point is that there was --

5 there's a credibility issue here. I did resolve it

6 against the insurer, at least to some extent. I

7 didn't fully resolve it against the insurer because

8 I have some questions about -- my question, and

9 found against her as far as a specific incident on

10 that Sunday. But there's nothing mentioned in that

11 first report. A question arises because of the

12 blank form.

13 There's an indication in Dr. -- The first

14 doctor, Dr. Flindt's testimony, that she had a

15 specific concern about insurance. So there -- even

16 though she prevails ultimately even on the

17 Occupational Disease claim, it's not a case that

18 there's no basis for taking to trial. I think there

19 were legitimate questions that could legitimately be

20 taken to trial, not only on the Workers' Comp. case,

21 which I've decided against her, but also on the

22 Occupational Disease case. So I think under those

23 circumstances I have to deny it. I'll do that

24 subject to looking at the Occupational Disease Act,

25 but I think that's pretty much where it's going to

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1 end up.

2 MR. JONES: If you were to change

3 your mind, would you leave the record open to

4 address what would have to be a --

5 THE COURT: If there's additional

6 evidence that would have to be taken?

7 MR. JONES: Well, what I'm getting

8 at, you told us which way you're going to go unless

9 when you read the Statute something directs you in a

10 different direction. So if you were to do that, I'm

11 wondering if the record would be left open for

12 Liberty to address what would now be a new issue

13 that has been raised.

14 THE COURT: Under the Occupational

15 Disease Act.

16 MR. JONES: Yes, your Honor.

17 THE COURT: See, the problem was, I

18 wasn't thinking about that when I suggested that we

19 combine the two. I don't know whether I

20 specifically suggested that, but I certainly pushed

21 you in that direction, and I wasn't thinking about

22 the attorney's fees issue, that there might be a

23 difference. I was more concerned about litigating

24 this thing twice and perhaps having her deny her

25 benefits that she's going to get right now. I was

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1 more concerned with that happening than I was

2 thinking about whether or not there would be a

3 technical difference between the attorney fees.

4 Let me look at the Attorney's Fees Act

5 right now. What Act are we under? The '97?

6 MR. JONES: Yes, your Honor, the

7 '97.

8 THE COURT: This didn't get changed

9 in the House Bill 592; did it?

10 MR. JONES: Your Honor, I would have

11 to look at the Bill.

12 THE COURT: I don't remember. Maybe

13 it did.

14 If what this thing says if an insurer

15 requests that a hearing be held before the

16 Department and the claim is determined compensable

17 by the Department after the hearing, and the insurer

18 does not appeal the Department's decision to the

19 Workers' Compensation Judge, reasonable cause, etc.,

20 and attorney's fees as determined by the Department

21 shall be paid to the claimant attorney by the

22 insurer.

23 I don't have any trouble since the

24 jurisdiction is changed as substituting the Workers'

25 Compensation Court for the Department. The problem

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1 is is applying that, and it's the insurer's request,

2 and the insurer's request would basically be only if

3 the medical panel procedure was followed and the

4 medical panel determination was adverse and the

5 original recommendation of the Department was

6 adverse to the insurer. Do you understand how that

7 works, Garry?

8 MR. SEAMAN: I'm reading it right

9 now.

10 THE COURT: Okay.

11 MR. SEAMAN: Looks like paragraph 2

12 says that attorney fees are payable, if I prevail.

13 THE COURT: Well, except that --

14 MR. SEAMAN: Am I wrong?

15 THE COURT: Pardon?

16 MR. SEAMAN: I'm just -- Read it real

17 quick, and I just -- If I prevail before the Work

18 Comp. Judge I'm entitled to the fees, according to

19 613. That's what we're looking at; aren't we?

20 THE COURT: Right, but under 613 as

21 written before House Bill 592 was adopted, the

22 hearing would be before the Department.

23 MR. SEAMAN: Right.

24 THE COURT: Then the appeal would be

25 to the Court. But in effect, for that second

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1 paragraph to apply, the Department would have had to

2 have decided the case at the Department level in

3 your favor, and then at that point you would have to

4 prevail in the Workers' Compensation Court for me to

5 award fees.

6 So with the Department being divested of

7 jurisdiction and jurisdiction coming to the Court,

8 it's going to be paragraph 1 that I think applies,

9 because this isn't an appeal situation.

10 MR. SEAMAN: Didn't they waive their

11 right to take it to the Board when we started this

12 hearing here today?

13 THE COURT: Right.

14 MR. SEAMAN: And therefore it went

15 before the hearing and --

16 THE COURT: You both did, but I guess

17 what I'm saying, if you read the first paragraph, it

18 says if an insurer requests a hearing, for that to

19 happen under the Department procedure, that both of

20 you -- both of you waive, you would have to

21 request -- you would have to personally have a claim

22 that would have to be a referral to the medical

23 panel, the medical panel decision would have to be

24 in favor of the Claimant and adverse to the insurer

25 and the Department would have to adopt that as its

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1 initial recommendation.

2 MR. SEAMAN: Right.

3 THE COURT: Otherwise it wouldn't

4 request a hearing, the shoe would be on the

5 claimant's foot to request the hearing.

6 So I think I may have messed up your

7 attorney's fee claim in -- And we may have messed it

8 up in proceeding this way, although if you went back

9 through this procedure, it may be that you would

10 have ended up -- it may have ended up accepting this

11 even if it denied the Workers' Comp. claim if you

12 had pursued the Occupational Disease part. I don't

13 know what would have happened.

14 MR. SEAMAN: That would have

15 happened.

16 THE COURT: I know you would, but

17 see, I think -- Well, I may have messed up the

18 attorney's fees and muddled the attorney fees issue,

19 but I think it's more important that her entitlement

20 to benefits gets adjudicated.

21 MR. SEAMAN: I agree.

22 THE COURT: And I didn't intend to

23 deprive you of an opportunity to do the attorney

24 fees or anything of the sort. And under the

25 Workers' Comp. Act, you would have had to prove

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1 unreasonableness, so actually this is a lower

2 standard under this Act.

3 MR. SEAMAN: Right.

4 THE COURT: So that'll be my final

5 ruling.

6 (Off the record discussion.)

7 MR. SEAMAN: I guess the other issue

8 is the issue of attorney fees as opposed to the lien

9 with the medical provider, and that's before the

10 Supreme Court right now. And that's -- I know

11 that's contrary to your ruling right now, but that

12 was just argued and we're waiting for a decision on

13 that in the next --

14 MR. JONES: As you know, your

15 Honor --

16 THE COURT: Let's go off the record

17 on this one.

18 MR. JONES: Probably a good idea.

19 (Off the record discussion.)

20 THE COURT: I've been discussing with

21 counsel what we do as far as paying medical

22 providers, and in two cases, I don't remember the

23 names of them. Larry, do you have them off the top

24 of your head?

25 MR. JONES: The case I'm involved in

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1 is Petak. It was argued, in my best recollection,

2 in February or so of this year in front of the

3 Supreme Court.

4 THE COURT: And a decision in that

5 case and the companion case, I think the companion

6 case was Lockhart.

7 MR. JONES: That is it, your Honor.

8 THE COURT: I determined that no

9 attorney lien applied to medical benefits payable to

10 medical providers and therefore could not be

11 withheld, that the medical providers had to be paid

12 a hundred percent of the rates they were specifying

13 for their payment.

14 That case has gone up to the Supreme

15 Court. The Supreme Court has taken the issue

16 seriously enough to have had it orally argued, and

17 they only orally argue about a dozen cases a year,

18 and I think they did so in -- all seven of them.

19 MR. JONES: That was right, your

20 Honor.

21 THE COURT: So they're treating that

22 appeal seriously. It was argued in February, we do

23 not know the outcome of that. So my -- I want to

24 freeze the situation. I recognize it's possible

25 that the Supreme Court might not agree with my

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1 decision, and therefore in this case what I'm going

2 to order is that pending that decision, the Supreme

3 Court decision, that the medical providers be paid

4 80 percent and that Liberty --

5 MR. SEAMAN: Seventy-five.

6 THE COURT: I'm sorry. Seventy-five

7 percent. This case went to trial so the attorney

8 fee would be 25 percent if it applies to medical.

9 And so pay the medical providers 75 percent and

10 withhold 25 percent. You don't need to pay that

11 tort to the Court. You're making all these other

12 payments, so I don't think you'll default on that if

13 it comes to that. And do that pending what the

14 Supreme Court decides. Once the Supreme Court

15 decides it, then that will direct us on what we

16 should do.

17 MR. JONES: Your Honor, unless Garry

18 has anything else, can we clarify that your decision

19 is final for appeal purposes and that starts the

20 running of the appeal time?

21 THE COURT: Well, the question is do

22 you want a written decision or do you want just this

23 decision and a transcript to constitute my final

24 decision?

25 MR. JONES: We would be happy just

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1 with the transcript. I don't know what Garry's

2 preference is.

3 MR. SEAMAN: That would be fine.

4 THE COURT: Okay. Why don't you --

5 What I'll do is as soon as she sends it to me, I'll

6 enter judgment attaching that and I'll certify it as

7 final at that point in time and I will take care of

8 it.

9 MR. JONES: That way we can consult

10 with our clients about the status of the case.

11 THE COURT: Okay. Fair enough.

12 MR. SEAMAN: Thank you.

13 MR. JONES: Thank you, Judge.

14 THE COURT: Thank you.

15 (Hearing concluded at 4:15 p.m.)

16 CERTIFICATE

17

18 I, BETH GILMAM, RPR, do hereby certify

19 that the foregoing is a true and correct transcript

20 of the proceedings held in the above matter on the

21 31st day of August 1999.

22 DATED this day of 1999.

23

24

25 BETH GILMAN, RPR

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