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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: Claimant injured her back at work but did not report the injury to her employer for more than 60 days after it occurred. The insurer denied liability for failure to comply with the 30 day notice requirement in section 39-71-603(1), MCA (1999). She alleges that her back condition is nonetheless compensable either as an injury or occupational disease.
Held: The claim is barred by section 39-71-603(1), MCA (1999). The injury was not latent since she was aware within a few days of her need for medical care and in fact sought medical care. While she thought her increased symptoms were caused by arthritis, the lack of a prior history of back pain and the experiencing of pain due to a specific work-related incident put her on notice of the connection between her back condition and the incident. Moreover, she acknowledged thinking on a couple of occasions that it was related. Her occupational disease claim fails because the triggering event was singular and she offered no medical evidence that her preexisting back disease was occupationally caused.
¶1 The trial in this matter was held on December 10, 2001, in Missoula, Montana. Petitioner, Edna Hanks (claimant), was represented by Mr. Eric Rasmussen. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones.
¶2 Exhibits: Exhibits 1 through 4 were admitted without objection.
¶3 Witness and Depositions: The claimant's sworn statement, taken with counsel present on October 10, 2001, was admitted and has been considered by the Court in the same manner as a deposition. Claimant was sworn and testified. At the close of trial, at the urging of the Court, the parties agreed to take the deposition of Dr. Randale C. Sechrest. That deposition was taken on December 20, 2001, and filed with the Court on December 26, 2001, at which time the case was deemed submitted.
¶4 Issues Presented: The issues as set forth in the Pretrial Order are:
(Pretrial Order at 2.)
¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
¶6 Claimant is presently 66 years old.
¶7 On July 31, 1995, claimant went to work for Partners in Home Care, Incorporated (Partners), as a home-care aide. Her job entailed helping patients with baths and with their basic personal care, including helping wheelchair bound patients into and out of their wheelchairs.
¶8 In January 2001, while helping an Alzheimer's patient dress, the claimant felt a "krik" or "twinge" in her back. (Trial Test.; Hanks Sworn Statement at 6.) In her sworn statement she described the event as causing a "pop-type sound" and "a little pain." (Hanks Sworn Statement at 6-7.)
¶9 Prior to the "krik" incident, claimant had never had back problems. (Id. at 15.)
¶10 Following the "krik" incident, the claimant continued to experience pain (id. at 16), although at trial she testified that she did not pay much attention to it. However, two or three days after the incident she began having difficulty getting into and out of her car due to pain radiating into her right leg.
¶11 On February 8, 2001, claimant saw Dr. Susan Selbach, her family physician. Dr. Selbach's office note for that date states that claimant "complains that she has been having some right-sided lower back pain that goes down into her buttocks, has doubled her over on occasion." (Ex. 1 at 10.) Claimant also complained of groin pain. (Id.) Regarding possible etiologies of the pain, Dr. Selbach noted only, "She does not remember any recent falls. She had a fall in 1993-1994." (Id.) Claimant testified that her pain was predominantly in her right hip and leg and that she thought it was a symptom of arthritis, from which her mother had suffered.
¶12 Despite a trial of physical therapy, claimant continued to experience low-back pain radiating into her buttocks and leg. (Id. at 12-13.) An MRI was done on March 13, 2001. It disclosed a left-sided protruding disk at the L4-5 level, as well as significant degenerative changes at that level. (Id. at 2.) While the protruding disk was on the left side, claimant's pain was on the right side, including the right leg. (Id.)
¶13 Dr. Selbach restricted claimant to light duty on March 27, 2001, and referred her to Dr. Carter Beck, a neurosurgeon. (Ex. 1 at 15.)
¶14 The next day, March 28, 2001, claimant told her supervisor, Karen Harrison, about her back pain and the "krik" incident. (Trial Test.; Hanks Sworn Statement at 12.) Claimant could not recall the date of the incident, only that it had been a couple of months previous, probably sometime in mid-January. (Hanks Sworn Statement at 12-13.) A first report was filled out by Harrison indicating that the pain was "chronic" and that claimant was "not sure" of the cause of her pain. (Ex. 2.)
¶15 In her sworn statement the claimant testified that she did not inform her employer earlier about the "krik" incident because "I just didn't think about it. I just thought it would go away." (Hanks Sworn Statement at 18.) She went on to say that she thought her pain might be related to arthritis since her mother had arthritis. (Id. at 19.) When pressed about the fact that her pain started with the "krik" incident, she testified:
(Id. at 20.) By the time her statement was taken on October 10, 2001, she was certain that the incident gave rise to her pain. (Id. at 21.)
¶16 At trial claimant testified that she did not report the "krik" incident immediately after it occurred because she did not think "it was bad" and does not like to run to doctors. She also repeated that she thought her subsequent pain was related to arthritis.
¶17 Unfortunately, claimant's back condition was "bad." She was subsequently seen by Dr. Beck on April 3, 2001. He reviewed her MRI, which he read as showing "lumbar stenosis at L4-5 where there is bilateral neural foraminal stenosis and subarticular recess stenosis." (Ex. 1 at 22.) On May 9, 2001, he performed a "[b]ilateral L4-5 laminotomy and foraminotomy with partial mesial facetectomy." (Id. at 40.)
¶18 Liberty denies liability for claimant's injury on account of her failure to report it to her employer within 30 days as required by section 39-71-603, MCA (1999).
¶19 Claimant has in the alternative pursued her claim as an occupational disease arising from her employment. On August 27, 2001, she was examined by Dr. Randale C. Sechrest, an orthopedic surgeon, at the request of the Department of Labor and Industry. Dr. Sechrest reported that claimant suffered from "long-standing degenerative changes in the lumbar spine" which "were rendered symptomatic in January or February of 2001 and most likely were aggravated by her activity at work." (Id. at 67.) He went on to state that her need for surgery "arose from her underlying degenerative disease" and "spinal stenosis secondary to [that] long-standing degenerative" disease. (Id.) In his deposition he reiterated that claimant had long-standing and extensive degenerative back disease but added that her condition was aggravated and made symptomatic by the "krik" incident. (Sechrest Dep. at 29-32, 36.) Lacking in his testimony and report is any indication that her underlying, preexisting back disease was in whole or in part an occupational disease.
¶20 Dr. Sechrest's testimony establishes that claimant suffered from preexisting degenerative back disease which was aggravated and made symptomatic by a single incident which claimant described as a "krik." Claimant's own testimony establishes that the "krik" incident occurred in mid-January 2001, and that she was aware of it. Her testimony further establishes that prior to that time the claimant had not suffered from back problems and that within a couple of days of the "krik" incident her pain had progressed into her leg. Her pain was severe enough that in early February she sought medical care. These facts were sufficient to put her on notice of the possible relationship between the "krik" incident and her increasing symptoms. While she may have thought worsening symptoms were the result of underlying arthritis, she admitted that at least on one or two occasions she thought her condition may have arisen from the "krik" incident. She failed to report her injury within 30 days and she has failed to provide credible evidence that her preexisting back disease was caused in whole or part by occupational factors.
¶21 This case is governed by the 1999 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶22 Section 39-71-603, MCA (1999), required claimant to report her injury to her employer within 30 days. The section provides:
The notice provision is mandatory and compliance with the requirement is indispensable to maintain a claim for compensation. Reil v. St. Comp. Ins. Fund, 229 Mont. 305, 308, 746 P.2d 617, 619 (1987).
¶23 Since the injury in this case occurred in mid-January 2001, claimant was required to report it by mid-February 2001. She was more than a month late in her reporting.
¶24 In the recent case of Danielle Whitlock v. Fremont Industrial Indemnity Company, 2002 MTWCC 12, I found that the 30-day period was tolled because the injury in that case appeared trivial at the time. I pointed out that
The facts in Whitlock, however, are dissimilar to those in the present case. In Whitlock the claimant experienced minimal aching which was insufficient to alert her that she would need medical care. In this case, within two to three days, the claimant's pain had increased to the point that she had difficulty getting into and out of her car. In fact she sought medical care more than 30 days prior to her reporting her injury to her employer. That she had never experienced back pain prior to the "krik" incident, taken together with her experience of the onset of pain at the time of the "krik" and her need for medical care within days thereafter, were sufficient to alert her to the possibility that the "krik" incident was responsible for her condition; indeed she acknowledged that she thought of that possibility on one or two occasions before she reported the injury. These facts are more similar to those in Larson v. Barry Smith Logging, Inc., 267 Mont. 444, 884 P.2d 786 (1994), a case in which the claimant's latent injury argument was rejected:
267 Mont. at 449, 839 P.2d at 789.
¶25 The "krik" incident was a single identifiable incident occurring in a single work shift, thus meeting the criteria of an injury. § 39-71-119, MCA (1999). It does not meet the definition of an occupational disease, which is defined as "harm, damage, or death as set forth in 39-71-119(1) arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift." § 39-72-102(10), MCA (1999) (emphasis added). And, there is no medical evidence that claimant's preexisting back disease was caused by claimant's prior work. She has therefore failed to prove that she suffers from a compensable occupational disease.
¶26 The claim in the present case is barred by claimant's failure to notify her employer of her injury within 30 days as required by section 39-71-603(1), MCA (1999). Her petition is therefore dismissed with prejudice.
¶27 This JUDGMENT is certified as final for purposes of appeal.
¶28 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 22nd day of March, 2002.
c: Mr. Eric Rasmusson
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