FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

The trial in this matter was held in Great Falls, Montana on May 1, 1996. Petitioner, Lisa B. Larsen-English (claimant), was present and represented by Mr. Richard J. Martin. Respondent, Lumbermens Mutual Casualty Company (Lumbermens), was represented by Mr. Thomas A. Marra and Mr. Jason G. Dykstra.

Exhibits: Exhibits 1 through 19 and 22 were admitted. Exhibit 21 was admitted over the objection of Mr. Marra. Exhibit 20 was refused.

Depositions: The parties submitted the depositions of Lisa B. Larsen-English, Donovan (Mickey) Demontiney, Vickie Martinez, Sherry Raiche, Marilyn Thorton, Joe Williams, Judy McCurdie, Doug Wahl, and Artie Wong for the Court's consideration.

Witnesses: The claimant, Dr. Paul Melvin, Joe Williams, and Mickey Demontiney testified at trial.

Issues presented: Claimant seeks compensation and medical benefits for a knee injury she alleges she suffered at work on March 26, 1996. Her claim has been denied by Lumbermens on the grounds (1) that claimant did not suffer an industrial injury and (2) that assuming she did injure herself at work, her injury occurred during horseplay and was therefore outside the course and scope of her employment. In addition to seeking compensation, claimant seeks attorney fees, a penalty and costs.

Bench Ruling: At the close of trial the Court solicited final arguments from counsel. Following those arguments I entered a bench ruling finding that claimant suffered a compensable industrial injury while working in the course and scope of her employment. I further found Lumbermens denial and defense of the claim to be unreasonable, determined that claimant is entitled to attorney fees, a penalty and costs, and directed the parties to address the amount of the attorney fee in post-trial affidavits and briefs. That matter has now been submitted and the following findings of fact, conclusions of law and judgment will finally dispose of all issues.

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

FINDINGS OF FACT

1. Claimant is 28 years old. She graduated from high school and has attended college for one year. She has two children.

Knee problems: The early years.

2. Claimant has a history of knee problems dating back to her teenage years. She was first treated for problem knees when she was 14 years old. She reported to Dr. Paul M. Melvin on April 15, 1981, that both her knees gave out when climbing or descending stairs and were painful when she ran. Dr. Melvin diagnosed recurrent patellar subluxation. (Ex. 10 at 12.) The doctor described "patellar subluxation" as where the patella (knee cap) is partially but not wholly outside of the joint or its normal location. "Patellar dislocation", on the other hand, is where the patella is entirely outside the knee joint.

3. Dr. Melvin treated claimant conservatively, recommending that claimant wrap her knees, take aspirin and decrease her activities. In a follow-up visit on May 13, 1981, Dr. Melvin reported she was "entirely asymptomatic and no treatment is indicated." (Ex. 10 at 12.)

4. Painful knees caused claimant to return to Dr. Melvin on April 24, 1983. Dr. Melvin noted that her left knee "definitely [had] some crepitous [sic] and slides to the lateral side." He recommended that she wrap her knees and return if she had more trouble. (Id.)

5. Claimant's next visit to Dr. Melvin was on May 17, 1985. At that time she reported pain when climbing stairs and that her knee was giving way. Dr. Melvin's note does not indicate which knee was giving way. Id.

6. In March of 1986 claimant was seen in the emergency room with a painful left knee. Dr. Melvin saw her shortly thereafter and recommended that she continue to self-treat according to his prior recommendations. (Id.)

Knee problems: The Army years.

7. Claimant enlisted in the United States Army in December of 1986. (Ex. 7 at 29.) On May 22, 1990, while serving in the Army, she stepped into a pothole and dislocated the patella of her left knee. (Ex. 7 at 13.)

8. On May 24, 1990, she underwent a left knee arthrotomy with repair of medial retinacula tissue. (Ex. 3 at 13-14.) Following surgery, claimant was in a leg cast for five weeks. After removal of the cast she underwent physical therapy.

9. Claimant continued to have difficulty with her left knee and was unable to pass a required physical fitness test. The Army found her 10% disabled (Ex. 3 at 1) and honorably discharged her in February 1991. (Ex. 7 at 13.)

Knee problems: February 1991 to March 25, 1995

10. After leaving the Army, Claimant returned to Great Falls and began working as a waitress. Over the next three to four years she worked two full-time jobs, waitressing at Elmer's during the day and at JB's at night. Claimant then had a child and quit her job at Elmer's, thereafter working exclusively at JB's.

11. Claimant's residual knee problems did not interfere with her employment. She worked continuously from the time of her discharge from the Army until March 26, 1995.

12. The only medical care she received for her knees was in late 1993 and early 1994. She was treated for right knee pain by Dr. John A. Belt on November 3, 1993, with follow-up visits in December and January. (Ex. 12 at 10-16.) She was then seen by Dr. Paul M. Melvin on February 15, 1994. (Ex. 10 at 11.)

13. Thereafter, she did not seek medical care until the incident at issue in this case.

The March 26, 1995 incident.

14. On March 26, 1995, claimant was still employed by JB's in Great Falls as a server. A "server" is a waitress or waiter. Claimant's job duties included serving customers and performing side work. "Side work" involves tasks such as cleaning and stocking.

15. At approximately 2:45 p.m., near the end of her work-shift, claimant was doing sidework. Specifically, she was replenishing the whipped cream used to make desserts.

16. Claimant was working in the servers' area of the restaurant. That area is located in front of a cooking/kitchen area. The two areas are separated by a counter on which the cooks set cooked dishes for servers to pick up and take to tables. (Ex. 17.) Generally the cooks stay on the kitchen side of the counter and the waitresses on the server's side.

17. Whipped cream comes in disposable plastic bags. In the serving area the bags were generally kept in a shallow metal pan on a cooling table. On March 26th, claimant was cleaning out the pan and preparing it for more whipped cream.

18. Donovan Demontiney (Mickey), a JB's cook, went into the serving area and attempted to take the pan from claimant. According to claimant, he said that he needed the pan. Claimant also needed it and took it back from him. It is undisputed that a whipped cream fight of sorts ensued. Claimant said that Mickey initiated the incident by spraying her with whipped cream, getting much of it in her hair. Mickey then took off through the doors that led to the kitchen area, past the dish room, and turned right toward the ice machine. Claimant followed at what she said was a fast walk but not a run, intending to get him back. As she turned right toward the ice machine, she slipped on the wet floor and fell. She experienced immediate pain in her left knee and had to have help getting up.

19. Mickey testified at trial and by deposition. For the most part, his testimony did not contradict claimant's testimony. He conceded he was in the servers' area and that he sprayed claimant with whipped cream but was unable to recall whether he or the claimant initiated the exchange. He also was unsure whether he had gone into the serving area to get a drink or to retrieve a pan. (Dep. of Demontiney at 22-23.) During his testimony he repeatedly told the Court that he did not have a very good memory of the events. He also testified that after claimant fell he was afraid he would be would be reprimanded for "horsing around."

20. Marilyn Thorton is a server at JB's. She was working at the restaurant the night claimant fell. She observed the events immediately prior to the fall.

(Thorton Dep. at 5-6.)

21. Vicki Martinez, another server, also was working the night claimant fell. She described the events:

(Martinez Dep. at 5.)

22. Claimant testified that some degree of horseplay was tolerated at JB's. She said that employees sometimes tossed small bits of food at each other and squirted water, and that employees leaving JB's employment were "whipped creamed" on their last day of work.

23. Mickey testified that a lot of "messing around" goes on in the restaurant. He had observed employees throwing food and confirmed that departing employees were squirted with whipped cream on their last day of work. He had not seen water squirted.

24. Marilyn Thorton testified that the employees did engage in some horseplay. She said the management doesn't really "go for the horseplay; but it kind of just happens in fun . . . . " (Thorton Dep. at 17.)

25. Doug Wahl was a dishwasher at JB's in March 1995. In his deposition, he testified that the management at JB's tolerated some degree of horseplay:

(Wahl Dep. at 8-9.)

26. Arthur L. Wong is a dishwasher/busboy at JB's. In his deposition, he was asked about horseplay at the restaurant:

(Wong Dep. at 6-7.)

27. Vicki Martinez testified that she had seen other instances of "whipped creaming" and other horse play. She said that it had ceased since claimant's fall.

(Martinez Dep. at 17-19.)

28. At trial, Joe Williams, the general manager of the Great Fall's JB's, testified that he was unaware of horseplay. He had never personally seen anyone squirting whipped cream at another employee, but acknowledged that he was aware it had happened. He testified that the only time the creaming took place, to his awareness, was on an employee's last day and after hours.

29. Claimant was a credible witness and I adopt her version of the events and her testimony concerning horseplay. With regard to the onset of the incident, I specifically find that the incident was precipitated by Mickey because he needed the pan for the kitchen and attempted to wrestle it from claimant. I further find that minor horseplay was permitted by JB's management and that on prior occasions employees had sprayed whipped cream on one another, albeit under different circumstances. I did not find William's testimony that he was unaware of horseplay credible and note that he took no disciplinary action with respect to the March 26th incident.

30. Claimant, Mickey, and Joe Williams, all testified that the floor where claimant fell was damp, if not wet.

31. Joe Williams was in his office at the time claimant fell. However, he was immediately told of the accident and went to check on claimant. When he arrived claimant was still on the floor. He asked if she was alright and claimant told him she was messing around chasing Mickey when she fell down and that she was sorry. She said that the V.A. would pay the bill for her knee since she had previous difficulties with her knee while in the service.

Medical Treatment After the 3/26/95 Fall

32. Claimant testified in her deposition that she thought she was first seen at Malmstrom Air Force Base following her fall on March 26, 1995. Review of the medical records, however, indicates she was first seen by Dr. Glenn C. Winstead at Columbus Convenience Care. The nurses assessment from Convenience Care states her left knee "'gave out today @ 1440' fell - twisting L knee." Dr Winstead was unable to assess knee stability at that time, suggested the knee be rechecked if the pain continued, and prescribed Tylox for pain. (Ex. 4 at 1-2.)

33. Claimant went to the Extended Care Clinic at Malmstrom Air force Base the following day and was examined by Michael H. Hewitt, who is a physicians' assistant. Claimant reported increased pain and swelling and gave a history of having slipped at work the previous night. Hewitt drained 15 cc's of bloody fluid from claimant's left knee. However, claimant's pain prevented him from performing a full examination of her knee. X-rays were taken but showed no evidence of injury. The radiologist noted that internal derangement would not show up on plain films and suggested careful follow up and an MRI if the pain persisted. Hewitt referred claimant to Dr. Melvin. (Ex. 12 at 7-9.)

34. Dr. Melvin examined claimant on March 27. Claimant told him she had slipped at work on March 26, 1995. Dr. Melvin noted:

(Ex. 6 at 7.)

35. On March 29, 1995, Dr. Melvin performed a lateral release and transfer of the tibial tubercle on claimant's left knee. The operation involved moving the tibial tubercle, which is the point where the patellar tendon attaches to the tibia, medially (towards the inside of the leg), thus changing the angle of pull on the patella and better holding it in place. (Ex. 6 at 9)

36. Dr. Melvin testified at trial. He provided credible and persuasive testimony that claimant's fall on March 26, 1995, caused further injury to her left knee. Specifically, he testified:

37. Dr. Melvin's medical opinions were unrebutted.

38. On May 17, 1995, Dr. Melvin released claimant to return to work part-time.

Ex. 10 at 2.)

39. Claimant returned to Dr. Melvin on August 23, 1995 complaining of pain and swelling in her left knee. X-rays taken at that time showed the patella, the patellar tendon and the hardware used in the surgery were all in place. Dr. Melvin took claimant off work for two weeks and advised claimant of his doubt as to her ability to continue working as a waitress. (Ex.10 at 2.) In a follow-up visit September 7, 1996, claimant was doing better, however, her knee remained swollen and painful. He released claimant to return to work part-time and gave her a brace to help support the knee joint. (Id. at 1.)

Ultimate findings

40. Based on the foregoing findings of fact, I make the following ultimate findings of fact:

Insurer's actions.

41. The insurer's denial of this claim was unreasonable. Its contention that claimant's injury was unrelated to her employment and does not meet the injury and accident definitions flies in the face of both the facts and the law. The contention is not only unreasonable but is mean-spirited. Insurer's contention that claimant was not acting in the course and scope of her employment ignores the clear facts that the incident was precipitated for a work-related reason and that claimant did not instigate the incident. The insurer's focus on out-of-state cases involving horseplay rather than on Montana precedents ignored the reality that Montana precedents are controlling.

Attorney fees and costs:

42. Claimant's attorney filed a request for attorney fees in the amount of $8,991.50, along with documentation of his hours spent working on the case. Additionally, he sought a surcharge of $1,091.89. Respondent filed a response stating that it does not contest the amount sought in attorney fees except for the surcharge. Claimant then withdrew the surcharge request. Since there is no objection to the base amount, the Court finds that claimant is entitled to attorney fees in the amount of $8,991.50.

43. Claimant has presented an itemized list of costs which totals $1,945.82. Not available at the time the list was presented was Dr. Melvin's bill for trial testimony. Claimant subsequently obtained such bill, which is in the amount of $400.00. Respondent did not object to any of the costs itemized or to claimant's stated intent to forward Dr. Melvin's bill at a later time. Therefore, the Court finds that claimant is entitled to costs in the amount of $2,345.82.

Incorporation of findings from bench ruling.

44. The specific findings made by the Court in its bench ruling are incorporated by reference.

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). Thus, the 1993 version of the Workers' Compensation Act governs this case.

2. The claimant has the burden of proving by a preponderance of the evidence that she is entitled to 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).

3. Section 39-71-119, MCA (1993), defines injury as follows:

The criteria of subsection (1)(a) are clearly met since uncontradicted evidence in this case shows that claimant's fall resulted in physical harm to her knee. Specifically, it caused a dislocation of the patella and internal bleeding within the knee joint.

The fact that claimant suffered from an preexisting knee condition (periodic subluxation of the patella) does not change this conclusion; injuries which aggravate a preexisting condition are compensable under the Workers' Compensation Act. Section 39-71-407(2), MCA expressly provides:

Lumbermen's argues, however, that the requirement of section 39-71-119(2)(a) that the injury arise from "an unexpected traumatic incident or unusual strain" is not satisfied in this case because her knee "could have collapsed on her at any time regardless of whether she was at work or not." Its contention on this point is set out in paragraph 4 of Lumbermens contentions in the Pretrial Order. Verbatim, it reads:

(Pretrial Order at 3.)

The argument flies in the face of the facts and the law. The event that occurred here was a slip and fall causing a twisting of the knee, which in turn dislocated the patella. To say that the fall was expected defies logic. The argument is equivalent to saying that all slip and falls are expected because people slip and fall all the time. Under that tortured logic almost every work-related injury would be expected. Plainly, the slip and fall in this case was unexpected. Thus, the requirements of section 39-71-119(2)(a), MCA (1993) are met.

Moreover, in Jones v. Bair's Cafes, 152 Mont. 13, 19, 445 P.2d 923, 926 (1968), and Robins v. Ogle, 157 Mont. 328, 333, 485 P.2d 692, 694-95 (1971), the Supreme Court interpreted "unusual strain" as physical harm resulting from a traumatic incident. In Jones it said:

Id. In Robins the Court considered a case in which the claimant suffered a herniated disk while lifting a mop-pail. Addressing the insurer's argument that the injury did not meet the unexpected cause or unusual strain requirement, the Court said:

157 Mont. at 333, 485 P.2d at 695. Characterizing the result in this case -- the dislocation of the patella and resulting surgery -- as "usual" rather than "unusual" is equivalent to saying that the dislocation and surgery were inevitable irrespective of claimant's physical activities. There is no evidence of such inevitability in this case.

4. Lumbermens' further argument, contained in Respondent's Proposed Findings of Fact, Conclusions of Law and Judgment, that the claimant failed to show that her condition and surgery were proximately caused by the March 26, 1995 incident, simply ignores the facts in this case. Again, the fact that claimant suffered from a preexisting condition involving subluxation of her patella does not preclude compensation. The employer and its insurer take the worker as they find her. Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d 327, 330 (1995). An aggravation of a preexisting condition is compensable. (See previous discussion.) Claimant had bad knees but she was able to work not just full time, but nearly 80 hours a week for several years without acute distress. The fall March 26, 1995, caused an acute problem. Her patella did not just sublux, it dislocated, causing bleeding within her joint. The surgery addressed her acute problem. This is not a case where a condition "coincidentally" occurs during work hours. The condition here was proximately caused by a specific, work-related incident.

5. Relying on several Oregon case, Lumbermens further argues that claimant's fall is not compensable because it occurred during horseplay. The Court need not address the Oregon precedents. Montana law applies in this case and is reasonably clear.

In Richardson v. J. Neils Lumber Co., 136 Mont. 601, 341 P.2d 900 (1959), the Supreme Court considered an injury arising because claimant foolishly rode a conveyor belt. In that case the claimant worked at a lumber mill collecting, staking and tieing bundles of processed lumber. On the day of his injury, there was a lull in his work. During the lull the claimant went a short distance from his usual work station. He then hopped onto a conveyor belt and rode it twenty feet back to his work station. During the ride he caught his foot under the belt and his foot was crushed. The Court found the injury to be compensable even though the claimant should not have been riding the belt.

In finding the incident compensable the Court held that the horseplay doctrine did not apply to the incident since horseplay requires two or more participants. But it then went on to reject the insurer's assertion that the injury nonetheless did not occur in the course and scope of employment. It found that if the act causing the injury "could be reasonably contemplated" in the employment, then it arose out of the employment. Id. at 610, 341 P.2d at 905. It further held that the fact that the mode of transport used by claimant was dangerous did not remove claimant from the protection of the Workers' Compensation Act. In so holding, it quoted with approval an opinion of Justice Cardoza: