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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA WCC No. 9504-7285
WAUSAU UNDERWRITERS INSURANCE COMPANY Respondent/Insurer for HUNT'S TIMBERS, INC. Employer.
The trial in this matter was held on July 26, 1995, in Missoula, Montana before Court appointed Hearing Examiner, Clarice V. Beck. Petitioner, John L. Harding, was present and represented by Mr. Howard Toole. Respondent, Wausau Underwriters Insurance Company, was represented by Mr. Kelly M. Wills. The claimant testified on his own behalf. Ernie Hunt, Robert Hunt, Jim Umphries and Bill Whalen testified. Exhibits 1 through 11 were admitted by stipulation of the parties. The depositions of claimant, Mark F. Rotar, M.D. and Randy Keeble were submitted for the Court's consideration. The deposition of Julie Hunt Zembel was admitted over the objection of Mr. Toole. Issues: Whether the claimant is entitled to permanent partial disability benefits based on physical restrictions resulting from his July 6, 1994 industrial injury, and his entitlement, if any, to rehabilitation benefits, and attorney fees and costs. Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and the exhibits, the Court makes the following:
1. At the time of trial the claimant was 29 years old. He had obtained his GED and had attended classes at the Salish Kootenai Community College in 1991 and 1992. 2. On or about July 6, 1994, the claimant sustained an industrial injury arising out of and in the course and scope of his employment with Hunt's Timbers. (Uncontested Fact 1.) At the time of the injury the employer was insured by Wausau Underwriters Insurance Company, which accepted liability and has paid various workers' compensation benefits. 3. Claimant was seen by Dr. M. H. Genich at the Garden Wall Clinic in St. Ignatius, Montana, on July 7, 1994. Dr. Genich noted that claimant's chief complaint was of "[b]ack pain 2 days." His assessment was "[a]cute strain lumbar spine." X-rays were ordered and Tylenol #3 and Voltaren were prescribed. (Ex. 6 at 5.) The claimant reported to the doctor that his pain was the result of work the previous day when he was doing "heavy lifting." (Id.) 4. The X-rays revealed "No Significant Abnormality Defined." (Id. at 6.) 5. Claimant was seen by Dr. Genich on three more occasions in July. The first visit recorded his complaint of "[p]ersistent back pain." (Id. at 7.) On July 13, it was noted the claimant was improving and that he could return to "light duty" work the following Monday. (Id. at 8.) The final visit on July 18, 1994, noted he was still "[s]ore/can't bend down [without] holding on." His condition was improved and he was to consult with Dr. Rotar in August and continue rehabilitation. (Id. at 9.) 6. Two days later, on July 20th, the claimant was seen by Dr. Ferril, an associate of Dr. Genich at the Garden Wall Clinic. He noted that claimant's assessment was "resolving lumbar muscle spasms." The doctor authorized the claimant to return to "light duty," with "no lifting over 15 pounds" and that "[f]ull recovery is anticipated." (Id. at 2.) It was also noted by the doctor that claimant had gone to a chiropractor the previous week. 7. The employer's first report was filled out on July 20, 1994, and signed by the claimant and Ernie Hunt, employer. In this report the employer questioned whether an accident had occurred (Ex. 1 at 2), indicating he had information the claimant's back was sore but it was not work-related. This doubt was resolved in favor of the claimant and the insurer accepted liability. 8. A follow-up visit with Dr. Ferril on July 29th resulted in the claimant being released to return to work without restrictions. The doctor did spend time discussing back safety and leverage techniques with the claimant in an effort to prevent reinjury. (Ex 6. at 3-4.) During this visit the claimant asked to be "cleared for fire fighting," but the doctor indicated a "[h]old on firefighting for now." (Id. at 3.) 9. Claimant returned to work and was able to perform his job. Ernie Hunt, employer, testified that he watched the claimant for a period of time when he returned to work to be certain claimant was able to perform the job. Ernie Hunt, the claimant and Leila Roberts, office manager, met sometime in August 1994, at which time the claimant was cautioned not to do lifting beyond his capability. The claimant recalled this meeting, but not the specific caution about lifting beyond his capacity. 10. On September 20, 1994, the claimant was seen by Dr. Mark Rotar for an evaluation of his lower back. Dr. Rotar's impression was "[a]cute lumbar strain." (Rotar Dep. Ex. 1.) The claimant was advised to wear a back brace, which he had purchased following an earlier back episode, on an as needed basis and to use an anti-inflammatory, also on an as needed basis. No other medication was required. Dr. Rotar stated the claimant could return to his work but he needed to be "somewhat cautious with his activities." In response to the claimant's question regarding whether the injury was related to previous back problems, Dr. Rotar wrote, "Quite frankly I doubt it, he's been asymptomatic for a number of years now and I think he simply over did it with his back on this latest job. (Id.) 11. A comparison by Dr. Rotar of the X-rays taken on May 9, 1991, and those taken July 7, 1994, showed no significant change in the claimants back. (Id.) 12. The claimant continued to perform all of his job duties at Hunt's Timbers until December 6, 1994, when he developed back pain while carrying poles and "doing ends and caps." (Id.) The claimant went to the clinic in St. Ignatius and was given prescriptions for Robaxin and Motrin. On December 19, 1994, claimant was examined by Dr. Rotar and reported he had "slipped and almost did the splits and fell to the ground." The claimant's pain was in his low-back with some pain into the buttocks. Additionally, for the first time there was a new discomfort in the lower thoracic region. There was no radicular pain, no weakness or numbness. Dr. Rotar's impression was "[b]ack strain" and he recommended claimant fill his prescriptions and arrangements were made for physical therapy with Bruce McMillan in Ronan. (Id.) 13. Claimant received physical therapy treatments from January 4 to January 19, 1995. The physical therapist noted on January 13, 1995, "I would very much like to see him get into some sort of academic work as I think he is a high risk for being a back invalid if he continues this present job pattern." (Ex. 7 at 7.) When claimant was released from his care, the physical therapist stated, "[T]his patient will need to continue exercises indefinitely due to the state of his back." (Id. at 8.) 14. The claimant did not file a claim for compensation as a result of this incident. The claims adjuster for Wausau, William Whalen, testified that the insurer treated the December incident as an aggravation of the July injury as the claimant had not reached maximum medical improvement when it occurred. The insurer paid medical and compensation benefits. 15. Claimant returned to Dr. Rotar on January 5, 1995, reporting that he was still stiff but better than he had been in a year and half. He had taken his medication and did not want anymore. Claimant was told to continue his physical therapy program and return in four weeks. (Rotar Dep. Ex. 1.) 16. On Tuesday, January 17, 1995, the claimant returned to Dr. Rotar. He had been discharged from physical therapy and given a home exercise program. Dr. Rotar found claimant had reached MMI. Dr. Rotar did not think there was any permanent impairment. Claimant was given a work release for light-duty activities for the coming Monday, with a full release the following week. The doctor encouraged the claimant to consider a different type of work or reeducation. 17. On the 25th of January the claimant called Dr. Rotar to discuss his return to work and college. Many of the claimant's questions were legal questions and Dr. Rotar was unable to answer them. (Id.) 18. Claimant returned to work, but due to the unavailability of work at Hunt's Timbers, worked only part-time. By letter, dated February 8, 1995, claimant was notified his time-loss benefits and medical benefits would terminate on February 22, 1995. (Ex 11 at 1.)
19. Prior to the injury of July 1994, the claimant suffered an industrial injury to his low-back while working for Logcrafters on May 7, 1991. The insurer for Logcrafters was State Compensation Insurance Fund, which accepted liability and paid workers' compensation benefits. 20. On May 17, 1991 claimant began treatment with Dr. Rotar. Dr. Rotar determined that claimant suffered from "[a]cute lumbar strain." Voltaren and Flexoril were prescribed, as well as physical therapy. (Rotar Dep. Ex. 1.) 21. Claimant received physical therapy treatments from May 20, 1991 through July 22, 1991. The goal of the physical therapy was to teach the claimant an independent home exercise program and the use of proper body mechanics. There is no indication that the claimant was unable to return to his time- of-injury work or of any restrictions being recommended by the physical therapist. (Ex. 7 at 1-6.) 22. On June 13, 1991, while moving a toilet across his yard, the claimant experienced acute pain in his right lower back. This resulted in his having to go to the emergency room where he was given an injection and started on muscle relaxants. (Ex. 5 at 2.) 23. On June 20, 1991, Dr. Rotar stated the June 13th incident was an aggravation of claimant's preexisting condition and emphasized the need for a stretching program. Claimant was given a prescription for physical therapy and for Flexoril which was to be used in the event of an acute spasm attack. (Ex. 3 at 2.) On July 1, 1991, the claimant was experiencing a lot less spasm and was more mobile. (Id. at 3.) 24. A second consultation was made on July 22, 1991. The examination resulted in the following report:
(Ex. 3 at 14.) Dr. Rotar signed a Request for Medical Information form for the State Fund on August 8, 1991, which specifically noted that the claimant can now work "[f]ull time without restrictions." (Ex. 3 at 15.) Claimant did not return to work for Logcrafters. 25. Claimant and the State Fund reached a compromise settlement for the May 7, 1991 injury in January 1992. Medicals and hospital benefits were reserved. 26. Claimant suffered another incident involving his back sometime before August 3, 1993. He went to see Dr. Rotar on the 3rd, reporting that after moving boxes he had awakened so stiff and sore that he could hardly sit. Dr. Rotar noted, "I have seen John in the past for this type of problem and he does get an acute spasm in his lumbar spine." (Rotar Dep. Ex. 1.) At the time of this incident the claimant was working at Hunt's Timbers and was given an off work slip to take to his employer. He was advised to return in a few days unless he was doing better. Claimant did not keep the subsequent appointment.
27. Dr. Rotar is and has been the claimant's primary treating physician since his injury in 1991. Dr. Rotar was deposed for the purposes of this trial. 28. Dr. Rotar treated the claimant following the first injury to his low-back which occurred in May 1991. He testified that the claimant's prognosis following that injury was "good." The State Fund followed the appropriate vocational rehabilitation process and eventually presented Dr. Rotar with three job analyses which he approved, releasing the claimant to perform all of the jobs without any additional restrictions being imposed. (Rotar Dep. at 7.) When asked about his note regarding the claimant's need to be "somewhat cautious," (Finding 24.) Dr. Rotar stated, "I think that's fairly standard precaution for somebody that's had a lumbar strain. . . . But I did not put any specific lifting restrictions on him or limitations in that regard." (Id. At 8; emphasis added.) 29. The vocational consultant noted in her report that Dr. Rotar, "recommended the client return to a less strenuous form of work activity, though he mentioned Mr. Harding would be able to lift up to 100 pounds occasionally." (Ex. 8 at 3; emphasis added.) The approval of these jobs indicated the claimant could do the job, however by approving the jobs the doctor did not limit the claimant to the restrictions identified within the job analyses. Dr. Rotar expressed concern about the claimant returning to his previous job, however when specifically asked about restrictions he testified:
(Rotar Dep. at 30.) 30. As noted in Finding of Fact 10, Dr. Rotar believes the claimant's condition in September 1994, is the result of the July 1994 injury and not the injury which the claimant suffered in 1991. This opinion has been repeated a number of times. Initially in a letter to William Whalen, claims examiner, the doctor wrote:
(Ex. 3 at 26.) 31. Dr. Rotar was closely questioned at the time of his deposition and testified regarding the lack of any relationship between the 1991 and 1994 injury as follows:
(Rotar Dep. at 12-13.) 32. Dr. Rotar was cross-examined extensively regarding whether the claimant had returned to his pre-July 6, 1994 injury status. In a letter to Mr. Whalen on January 25, 1995, Dr. Rotar reported that the claimant had reached preinjury status, however, immediately following the statement the doctor goes on to describe the claimant's limitations stating "I think he could return to light duty activities working gradually toward more moderate duty activities." (Ex. 3 at 32.) This statement is not descriptive of the claimant's "pre-injury status." Dr. Rotar placed a 50 pound lifting restriction on the claimant and affirmed the claims adjuster's statement that he should have the latitude to work cautiously, to pace himself and to ask for help when needed. (Ex. 3 at 30.) 33. In October 1991, the claimant applied for certification by the Subsequent Injury Fund. The application form which he filled in contained the following description of his restrictions and limitations which were the result of his impairment, "cannot lift heavy amounts, have trouble standing to [sic] long, and back pain when bending or sitting to [sic] much." (Ex. 10 at 2.) There was no approval of this application. In any event, the claimant in 1993 did take a heavy-duty job at Hunt's Timbers and successfully worked for a year. 34. As previously noted, following the 1991 injury the claimant did not return to work for Logcrafters. He attended college for approximately one year and worked in various jobs in Montana and Washington until being employed by Hunt's Timbers on July 6, 1993. The work at Hunt's Timbers is heavy-duty work and the claimant worked without any work-related injuries until July 6, 1994. 35. Key to the issue to be decided is whether the claimant has more restrictions as a result of the July 1994 injury than he had prior to that injury. The medical evidence supports the conclusion that claimant's restrictions have increased as a result of the 1994 injury. The basis for this finding is:
36. The claimant was able to return to work within a two week period following the 1994 injury, however, the doctor did not determine that he had reached maximum medical improvement until January 17, 1995. The claims adjuster testified that the insurer did not consider the claimant to be maximally healed at the time of the December 1994 incident. 37. Employer, Ernie Hunt, whom I find to be credible, testified that based on his personal experience with a bad back, it is possible to do the work at the sawmill if an individual takes care of himself. His concern for his employees was genuine and his expectation that a person with a bad back could work at the mill if he took proper precautions was convincing. 38. Claimant testified that he experiences back pain and his back hurts. He has difficulty sitting for long periods of time and is unable to bend over and lift as much as prior to the July 6, 1994 injury.
39. The insurer presented evidence in an attempt to show that the claimant was not credible and exaggerated his symptoms subsequent to his 1994 injury. In particular the insurer argues that following the hiring of his attorney the claimant's report of symptoms increased. The difficulty with this assertion lies in the fact that much of the testimony regarding the claimant's demeanor and suspicion of "faking" was relative to incidents prior to the hiring of his attorney. Further the claimant has a medically determined problem with his low-back. In October of 1994, Dr. Rotar restricted the amount of lifting the claimant can do. This is a new limitation placed on the claimant. 40. I have reached these conclusions based on my observation of the claimant at the time of the hearing and his testimony stating that he is experiencing a difference in his ability to work since the 1994 injury. While I am not persuaded that the claimant was always candid in his responses regarding what he could recall about specific instances which occurred over the past four years, I do find that he is truthful in describing what his limitations are at this time and that those symptoms are more severe today than they were following the 1991 injury. The insurer's attempt to discredit the claimant by enumerating several discrepancies in the claimant's testimony does not persuade me that the claimant is a fraud and lying about his current condition. In listening to the claimant testify I was struck by his hesitancy and the caution by which he answered the questions. The tone of a hearing is adversarial and it is not surprising that the demeanor of the claimant would be cautious. However, I did not come away with the impression that the claimant was incredible when describing his present condition. Likewise, as mentioned, I believed the testimony of the Hunts, who testified on behalf of the insurer. I think they fairly reported what they saw and how they felt about the circumstances surrounding this claim. It became obvious that there was a misunderstanding on the part of the employers as to what the claimant was contending regarding the filing of claims for compensation. Their focus was primarily on the incident in December, which was not a new injury but a continuation of the July incident. However, the claimant did go to the doctor following that incident and the medical reports are consistent with the description of what happened to him. As testified to by Mr. Whalen, the claimant had not reached maximum healing in December even though he had returned to work, and the insurer treated the episode as an aggravation paying benefits under the July claim. It is an uncontested fact that the July injury was accepted as compensable. 41. Throughout the hearing it was necessary to clarify for the witnesses which episode was being discussed. When reading the claimant's deposition and comparing it to the testimony at trial it is clear there are times when an answer to a question was not referencing the correct date of injury. This confusion, while not an explanation for the claimant's hesitancy, lends some understanding to it. 42. The insurer raised a legitimate question regarding the relationship of the claimant's present condition to his industrial accident. It relied on the letter written by Dr. Rotar stating that the claimant had reached "pre-injury status." Its decision to deny benefits was not unreasonable.
1. The statutes in effect on the date of injury must be applied in determining benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380 (1986). Claimant was injured on July 6, 1994, thus the 1993 version of the Workers' Compensation Act applies. 2. Claimant has the burden of proving by a preponderance of the evidence that he is entitled to further compensation. 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). The claimant has carried his burden of proof. The claimant contends he is entitled to permanent partial disability benefits based on physical restrictions resulting from his July 6, 1994 injury, pursuant to section 39-71-703, MCA (1993). Section 39-71-703(1), MCA (1991), provides in relevant part:
Claimant argues that he is entitled to this determination due to the restrictions placed on him as a result of the July 1994 injury. The insurer argues that the claimant's restrictions are the same as those which were placed on the claimant following his 1991 injury and that the claimant has reached his "pre-injury status." The insurer correctly points out that the claimant must satisfy the definition of permanent partial disability, § 39-71-116(18), MCA (1993), which requires a showing of physical restrictions as a result of the injury in order to be entitled to permanent partial or rehabilitation benefits. This issue was recently analyzed in the case of Williams v. Plum Creek Timber, WCC No. 9403-7017, decided June 28, 1994 and affirmed on appeal March 8, 1995. Williams v. Plum Creek Timber, Co., 52 St.Rptr. 148 (Mont. 1995). The WCC wrote:
(Findings of Fact, Conclusions of Law and Judgment, June 28, 1994, at 5-7.) As in Williams the claimant in this case has satisfied the two prong test of the definition of permanent partial disability. While Dr. Rotar's testimony and reports leave room for interpretation as to what is specifically meant by the term "pre-injury status," limiting the claimant to 50 pounds of lifting and a gradual reintroduction to the workplace clearly distinguish the claimant's present limitations from those placed on the claimant following the 1991 injury. In 1991 Dr. Rotar released the claimant to work without restriction and in his testimony he indicated that his approval of the job analyses in 1991 did not infer that the claimant was limited to the weights and limitations within those job analyses. Also, he did tell the vocational consultant that claimant could lift up to 100 pounds occasionally. This satisfies the first prong of the test. The second prong is satisfied by testimony that while claimant returned to work for Hunt's Timbers, his restrictions were such that he had difficulty doing certain jobs which he had previously been capable of performing. The question becomes whether this disability is the result of the injury which occurred on July 6, 1994. The Court finds that the medical evidence as well as a consideration of all of the evidence, see Plainbull v. Transamerican Ins. Co., 264 Mont. 120, 125, 870 P.2d 76, 80 (1994), establishes that the claimant's July 6, 1994 industrial accident permanently worsened his low-back condition. Prior to the July 1994 injury, the claimant had worked for one year at Hunt's Timbers in a heavy labor position. He was able to do his job until the July 6th injury. Between 1991 and 1994 he had suffered low-back pain on a number of occasions, which resulted in his seeking medical attention, but there is no evidence to contradict the testimony of the claimant showing he returned to work each time. Even though follow-up appointments were scheduled, the claimant did not seek continued care following these episodes. There is no medical opinion to refute Dr. Rotar's conclusions that the 1994 injury was a new and different injury, nor that while the claimant had returned to his "pre-injury status" he was now restricted to lifting no more than 50 pounds occasionally. 3. Claimant is capable of performing medium-duty labor activity and is therefor entitled to a permanent partial disability award of 15%. 4. Claimant did not present evidence concerning rehabilitation benefits and his request for rehabilitation benefits is denied. Claimant petitioned for and only presented evidence regarding his entitlement to benefits as a result of his physical restrictions. Therefore, no consideration is given to the other factors in section 39-71-703, MCA (1993). 5. As found in Finding of Fact 39, the insurer's denial of benefits was not unreasonable. Since a finding of unreasonableness is a prerequisite to an award of both a penalty and attorney fees, sections 39-71-611 and -2907, MCA, claimant is entitled to neither. 6. Since claimant is the prevailing party he is entitled to costs in an amount to be determined by the Court.
1. Claimant is entitled to a permanent partial disability award of 15% on account of his July 6, 1994, industrial injury. 2. Claimant's request for rehabilitation benefits is denied. 3. Claimant is not entitled to an award for attorney fees or a penalty. 4. Claimant is entitled to costs in an amount to be determined by the Court. 5. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348. 6. 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 27th day of September, 1995. (SEAL) /s/ Clarice
V. Beck c: Mr. Howard Toole IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA WCC
No. 9504-7285
JOHN HARDING Petitioner vs. WAUSAU UNDERWRITERS INSURANCE COMPANY Respondent/Insurer for HUNT'S TIMBERS, INC. Employer.
The above-entitled matter was duly heard by Court-appointed Hearing Examiner, CLARICE V. BECK, who conducted the hearing, considered the evidence and prepared and submitted Findings of Fact and Conclusions of Law and Proposed Judgment for consideration by the Court. Thereupon, the Court considered the record in the above-captioned matter, considered the Findings of Fact and Conclusions of Law and Proposed Judgment of the Hearing Examiner and does hereby make and enter the following Order and Judgment. IT IS HEREBY ORDERED the Findings of Fact and Conclusions of Law and Proposed Judgment of the Hearing Examiner are adopted. IT IS FURTHER ORDERED the Judgment is to be entered as follows:
1. Claimant is entitled to a permanent partial disability award of 15% on account of his July 6, 1994, industrial injury. 2. Claimant's request for rehabilitation benefits is denied. 3. Claimant is not entitled to an award for attorney fees or a penalty. 4. Claimant is entitled to costs in an amount to be determined by the Court. 5. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348. 6. 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 27th day of September, 1995. (SEAL) /s/ Mike
McCarter c: Mr. Howard Toole 1. The definition of permanent partial disability is now found in section 39-71-116 (18), MCA (1993). The definition, however, remains unchanged. |
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