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2004 MTWCC 33
WCC No. 2002-0700
Summary: The claimant suffered bilateral knee injuries in 1967 and 1974 which required removal of part or all of the cartilage of his knees. However, he continued to be physically active both in the jobs he performed and in his recreational activities. In 1982 he went to work for MSE Technology Applications, Incorporated (MSE) in Butte, initially as a security guard and mailman. He continued to work for MSE over the next eighteen and a half years. Much of his work involved standing on concrete or asphalt. From 1993 to 2000 the claimant suffered several painful episodes of knee pain, swelling, and effusion in connection with some of his non-employment, recreational activities, however, prior to 2000 he recovered quickly from the specific events. By 1996 it was clear that bilateral knee replacements were inevitable as his knees continued to degenerate. After being told in December of 2000 that his work at MSE contributed to his condition and his need for surgery, the claimant filed an occupational disease claim. An occupational medicine physician examined him at the request of the Department of Labor and Industry and agreed that the condition of his knees was significantly aggravated by his employment with MSE, however, after his deposition was taken the physician was presented with and answered written questions by the insurers regarding the cause of claimant's condition; he replied that his condition was not directly or "proximally" caused by his work at MSE. The question before the Court is whether his bilateral knee condition and his need for surgery is compensable under the Montana Occupational Disease Act.
Held: The claimant's bilateral knee condition is compensable if his work significantly aggravated a preexisting condition. Polk v. Planet Ins. Co., 287 Mont. 79, 951 P.2d 1015 (1997). The evidence establishes that his work in fact significantly aggravated his preexisting bilateral knee condition and led to or accelerated his need for knee replacement surgery, therefore, he is entitled to the indemnity and medical benefits available under the Occupational Disease Act. The insurer at risk during the claimant's last occupational exposure is liable.
¶1 The trial in this matter was held in Helena, Montana, on March 16 , 2004. Petitioner, Montana State Fund, was represented by Mr. Thomas E. Martello. Claimant, Carl Murray, was present and represented by Mr. Bernard J. Everett. Respondent, Indemnity Insurance Company of North America, was represented by Mr. Leo S. Ward.
¶2 Exhibits: Exhibits 1, 2, and 4 were admitted without an objection. Exhibit 3 - a post-deposition letter of Dr. Gary M. Rapaport in response to questions of counsel for the insurers - was admitted over the objection of the claimant since the objection was untimely. A further explanation of my ruling is set out in the Conclusions of Law section of this decision.
¶3 Witnesses and Depositions: The claimant was the sole witness at trial. In addition, the parties submitted the depositions of the claimant and Drs. Gary M. Rapaport, Nicholas Blavatsky, and Michael T. Gallagher.
¶4 Issues Presented: The Court restates the issues as follows:
(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 The claimant is fifty-eight years old.
¶7 The claimant was a wholly credible witness.
¶8 Since trial testimony covered much of what was in the claimant's deposition, I have not cited to it. Nor have I cited to the trial testimony since no transcript of the trial has been prepared.
¶9 Over the years, the claimant has engaged in a number of jobs and occupations. Many involved physical labor. I summarize them as follows:
¶10 Over the years the claimant has engaged in physically demanding recreational activities. I summarize the significant ones as follows:
¶11 Over the years the claimant has suffered a number of knee injuries:
¶12 After 1996 the claimant suffered periodic flareups of pain and swelling in his right knee:
¶13 In November or early December 1999 the claimant twisted his left knee while chasing one of his dogs. Dr. Gallagher evaluated him on December 20, 1999, and injected his right knee with Depo-Medrol. (Id.)
¶14 On December 26, 2000, the claimant woke up with a very swollen and painful left knee which was twisted in his blankets. He tried to get out of bed, putting his weight on his right leg, which then collapsed. He saw Dr. Nicholas Blavatsky, an orthopedic surgeon, the next day. (Blavatsky Dep. at 6.) Dr. Blavatsky aspirated the claimant's knee. (Id. at 8.) He also reviewed the claimant's old x-rays at that time and noted that the degenerative osteoarthritis of his knees made the claimant a candidate for total knee replacement. (Id. at 7, 9.) He broached the subject of reconstructive surgery, i.e., "knee replacements." (Id. at 9.)
¶15 In December 2000 Dr. Blavatsky told the claimant that standing on concrete while working at MSE contributed to his degenerative knee condition. This is the first time that the claimant was aware that occupational factors might be contributing to his knee condition.
¶16 On January 8, 2001, the claimant filled out and submitted a First Report of Injury or Occupational Disease for bilateral knee pain and swelling. (Uncontested Fact 3.) He listed the injury date as December 26, 2000.
¶17 On January 30, 2001, the claimant underwent knee replacements in both knees. (Ex. 1 at 42-43.)
¶18 Meanwhile, on January 12, 2001, the claimant resigned his employment with MSE, because he had been given notice that his job was being phased out and also knew he was going to undergo knee replacements. He was given the option of retiring and elected that option.
¶19 MSE was insured by the Insurance Company of North America (ICNA) from April 15, 1992 to April 15, 1995, and again from April 16, 1996 through September 30, 2000. From and after October 1, 2000, it was insured by the Montana State Fund (State Fund). (Uncontested Facts 1-2.)
¶20 The claimant's written claim was submitted to the State Fund on January 8, 2001. It began paying benefits under a reservation of rights pursuant to section 39-71-608, MCA. On July 20, 2001, it denied liability. It thereafter brought the present action for declaratory judgment to determine liability.
¶21 Three physicians testified by deposition in this matter: Dr. Gallagher, who treated the claimant since 1997, Dr. Blavatsky, who did the claimant's knee replacements; and Dr. Rapaport, who conducted an occupational disease evaluation at the request of the Department of Labor and Industry (Department). Both Drs. Gallagher and Blavatsky are orthopedic surgeons. Dr. Blavatsky specializes in knee replacements. Dr. Rapaport specializes in occupational medicine.
¶22 Dr. Gallagher testified that the claimant's initial knee injuries were the ultimate cause of his knee replacements. After noting that his work and recreational activities over the years "probably had something to do with it," he said:
(Gallagher Dep. at 28.) When asked about the contribution of the claimant's work at MSE, he replied, "I wasn't involved at that point in his treatment at all. That's all been taken care of by my partner, Nick Blavatsky, and I would defer to Nick's judgment on that." (Id. at 29.) He noted that he was not familiar with the claimant's MSE job duties and had no opinion concerning the role his MSE employment may have played in his knee condition. (Id. at 37.) He simply noted that at the time he first saw the claimant his knees were already "worn out" (id. at 40), but despite that fact the claimant continued to function at a very high level until late 2000. (Id. at 38).(1)
¶23 Dr. Blavatsky opined that the claimant's walking and standing on hard surfaces during his work for MSE over the years was a significant contributor to his degenerative knee condition and assessed the contribution at thirty percent. (Blavatsky Dep. at 21, 27, 29.) He conceded that claimant's old knee injuries were "huge initiating factors in his osteoarthritis" (id. at 27) but testified that "in all fairness, work-related activities have some measure" (id. at 29), which he put at thirty percent. When asked about the role of walking and standing on concrete, he testified:
(Blavatsky Dep. at 13.)
¶24 Dr. Blavatsky also addressed whether the claimant suffered a new injury in December 2000 when he awoke with blankets wrapped around his left leg. He said the incident did not precipitate the need for his surgery. (Id. at 35.)
¶25 At the request of the Department of Labor and Industry, Dr. Rapaport evaluated the claimant with respect to his occupational disease claim. Dr. Rapaport is an occupational disease specialist, however, he is not board certified in that specialty. His evaluation was done on August 21, 2001. In his deposition, Dr. Rapaport had no independent recall of his evaluation. (Rapaport Dep. at 8.) Thus, his report, which is found at Exhibit 4, sets out his findings and opinions.
¶26 In that report, Dr. Rapaport notes the claimant's 1967 and 1974 knee surgeries and removal of his knee cartilage. He also notes the claimant's dog sledding and recreational activity which he says contributed to the degeneration of the claimant's knees. He then renders the following opinions:
(Ex. 4 at 4.) During his deposition, he reaffirmed his opinion that the claimant's work activities contributed to the degeneration of the claimant's knees. (Rapaport Dep. at 18.) He noted that walking and standing for six to eight hours a day at work likely aggravated his knee condition. (Id. at 21.)
¶27 In a follow-up letter to Pat Hunt, a claims adjuster for the State Fund, Dr. Rapaport clarified that his attributing a worsening of the claimant's condition to occupational factors was based on the claimant's employment in the long term and not just upon his last four months of work. (Rapaport Dep. Ex. 4.)
¶28 During his deposition Dr. Rapaport was quizzed about whether his opinions would change if the claimant did not stand and walk at work as much as six to eight hours a day and did other strenuous outside activities, such as gathering firewood. Dr. Rapaport repeatedly emphasized that his apportionment (thirty to forty percent) was not scientific and that it was a rough estimate of the contribution of his employment versus his other non employment activities. Nowhere in his deposition did he indicate that further information would reduce the occupational component to zero.
¶29 Dr. Rapaport also testified that the exacerbations the claimant suffered in 1996 did not lead to the need for surgery in that knee replacement was already inevitable in 1996, independent of any further traumatic insults. (Rapaport Dep. at 45-46.)
¶30 Subsequent to Dr. Rapaport's deposition, counsel for the insurers sent a copy of the deposition of the claimant to Dr. Rapaport for his review, along with a letter requesting that he answer a series of questions concerning causation. In essence, counsel were requesting him to reconsider and supplement his deposition testimony. In his responses Dr. Rapaport did not say that claimant's employment did not contribute in any way to his knee condition but he did say that
(Ex. 3 at 2.) In relying on this opinion, the insurers overlook the fact that military service is an occupational factor, as is the claimant's heavy lifting while working for other employers, such as the Anaconda Company. The fact that such activities were done for an employer other than MSE is immaterial to determining the occupational component of the disease so long as his MSE employment materially contributed to his condition.
¶31 In his post-deposition letter, Dr. Rapaport also indicated that the claimant's work at MSE did not "direct[ly]" and did not "proximally" cause the claimant's need for surgery and further stated that "Mr. Murray's need for arthroplasties were a specific result of the accelerated and advanced degeneration of the knees, independent of his specific work at the MSE Technologies Company." (Id. at 2-3.)
¶32 Significantly, Dr. Rapaport does not say he was misled as to the extent of the claimant's walking and standing at MSE, or his other work for MSE. Moreover, the claimant's testimony clearly establishes that he spent long hours walking and standing, especially before 1994 when he worked a significant amount of overtime hours. Dr. Rapaport does not explain in his letter how he could previously have found that these MSE activities led to significant, accelerated degeneration of the claimant's knees and then find that they were insignificant.
¶33 I am loathe to give any weight to Dr. Rapaport's post-deposition opinion letter. His letter is not a medical record kept in the ordinary course of business: it was specifically prepared at the request of counsel for purposes of trial. Moreover, it is not under oath, was not subject to cross-examination, and was in reply to carefully framed written questions of counsel. The letter was admitted only because the claimant failed to timely object to it. I did provide claimant's counsel an opportunity to either have Dr. Rapaport testify at trial or submit to a further deposition; he did not take advantage of that opportunity. But it seems to me that where a medical deposition has been taken, and counsel for some parties are unhappy with the doctor's opinions because they believe the doctor did not have all of the facts, the burden is on them to reconvene the deposition or call the doctor as a witness at trial. I give little weight to Dr. Rapaport's post-deposition letter.
¶34 In contrast, I have the sworn testimony of Dr. Blavatsky, who testified that the claimant's walking and standing on hard surfaces during his work for MSE over the years was a significant contributor to his degenerative knee condition and assessed the contribution at thirty percent. (See ¶ 23.) Dr. Blavatsky is an orthopedic surgeon specializing in knee replacements. His speciality is more particular to the claimant's knee condition and he is also board certified. I give his testimony the greater weight against the post-deposition letter of Dr. Rapaport and find that the claimant's work at MSE significantly contributed to the claimant's knee condition and his need for surgery. While the claimant's 1967 and 1974 meniscectomies made the claimant susceptible to the degenerative knee disease by eliminating the cushioning within the knee, Dr. Blavatsky's testimony persuades me that they did not make knee replacement surgery inevitable and that further degeneration was the result of the claimant's post-meniscectomy activities, including his work at MSE. Absent the claimant's vigorous lifestyle, his heavy lifting both at work and play, and his extensive standing and walking, much of that at work, he may not have ultimately needed knee replacements, or the need for such replacements may have been significantly delayed. As Dr. Rapaport indicated in his deposition, it is impossible to scientifically sort out the relative contributions of work and nonwork activities; the proportions can only be estimated.
¶35 The claimant has also requested an award of attorney fees and a penalty. Both require proof that the insurer acted unreasonably in denying or delaying benefits. §§ 39-71-611, -612, and -2907, MCA (1999). I find that the insurers in this case have not acted unreasonably. They have raised significant and difficult factual and legal issues regarding liability. Moreover, I note that the State Fund initially paid benefits under a reservation of rights, which is a very reasonable way to handle claims which raise the sorts of factual and legal issues raised in this case.
¶36 This case is governed by the 1999 version of the Montana Occupational Disease Act (ODA) since that was the law in effect at the time the claimant learned he was suffering from an occupational disease and submitted his claim. Fellenberg v. Transportation Ins. Co., 2004 MTWCC 29, ¶¶ 35-36 and see Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶37 The claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. 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).
¶38 Initially, the State Fund has raised a statute of limitations defense, urging that the claim in this case was untimely. As I indicated at trial, the defense is without merit. Section 39-72-403, MCA (1999-2003), provides in relevant part;
There is no evidence that prior to December 2000 the claimant was aware he might be suffering from an occupational disease. (¶ 15.) He filed a claim a month after learning his work contributed to his condition. (¶ 16.) That claim was timely.
¶39 I therefore consider whether the claimant is suffering from an occupational disease. "Occupational disease" is defined in section 39-72-102(10), MCA (1991-2003), as follows:
The occupational disease definition encompasses aggravations of preexisting conditions. Section 39-72-706, MCA (1989-2003), provides in relevant part:
The aggravation provision is a reflection of the longstanding rule that employers take their workers as they find them, with all their underlying ailments, and that a traumatic event or unusual strain which lights up, accelerates, or aggravates an underlying condition is compensable. Birnie v. U.S. Gypsum Co., 134 Mont. 39, 45, 328 P.2d 133, 136 (1958); see also, Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992), and Hash v. Montana Silversmith, 248 Mont. 155, 158, 810 P.2d 1174, 1175 (1991). "The rule is that when preexisting diseases are aggravated by an injury and disabilities result, such disabilities are to be treated and considered as the result of the injury." Strandberg v. Reber Co., 179 Mont. 173, 175, 587 P.2d 18, 19 (1978). An employer takes an employee subject to the employee's physical condition as he finds him with or without preexisting conditions. See Schieno v. City of Billings (1984), 210 Mont. 457, 683 P.2d 953, 955.
¶40 The test for determining liability in this case is set out in Polk v. Planet Ins. Co., 287 Mont. 79, 951 P.2d 1015 (1997), a case which none of the parties cited in their proposed findings of fact and conclusions of law. Polk was an occupational disease case in which the claimant alleged that his respiratory disease, which resulted in his loss of half of his lung function, was attributable to an occupational disease. The claimant had a long history of cigarette smoking and a good part of his respiratory disease was ascribed to that history.
¶41 In determining that the claimant's occupational exposure aggravated his lung disease, the Supreme Court started with the proximate causation requirement set out in section 39-72-408, MCA, of the ODA. That requirement, which is materially unchanged since the Polk decision,(2) is as follows:
In applying the proximate cause standard, the Court took into consideration provisions and case law which provide for compensation for aggravations of preexisting conditions. The Court then rejected an argument that to satisfy the proximate cause requirements of section 39-72-408, MCA, the claimant must show that occupational factors were the sole or even the "substantial" cause of his condition; the test instead "is whether occupational factors significantly aggravated a preexisting condition." 287 Mont. at 85, 951 P.2d 1018.(3)
¶42 I note that none of the questions posed to Dr. Rapaport in the post-trial letter to him (see ¶¶ 27, 31) ask him the very question that must be answered under Polk. Thus, Dr. Rapaport's post-deposition opinions, which I have already found are not entitled to weight, do not address the crucial question in this case.
¶43 Having mentioned Dr. Rapaport's post-deposition opinions, I digress and turn to my ruling admitting it into evidence. The claimant objected to Dr. Rapaport's post-deposition opinions, which are set out in a September 4, 2003 letter to counsel for the insurers, on hearsay grounds. Indeed it is hearsay, since it is an out-of-court statement offered for the truth of the matters contained therein. Rule 801(c), Mont. R. Evid. The question is whether it is a medical record prepared in the usual course of business. Rule 803(6), Mont. R. Evid. provides:
The letter was not made "at or near the time" of any opinions or diagnosis formed by Dr. Rapaport or at the time of his examination of the claimant. The letter was not one kept in the regular course of business. Indeed, it was prepared specifically in connection with litigation. Thus, the letter is inadmissible under the Montana Rules of Evidence.
¶44 However, many such letters are introduced into evidence without objection in proceedings before this Court, at least where authored prior to any deposition. The routine lack of objections to such letters is understandable. Both sides have the opportunity to depose the authors, or to call the authors to testify at trial. Both sides proffer such letters and freely admitting them avoids tit-for-tat evidentiary disputes. Therefore, to avert the sort of last minute objection made by the claimant in this case, this Court's rules specifically require that any objection to a medical document, including letters of the sort authored by Dr. Rapaport, be made early on in the proceedings. Rule 24.5.317 provides:
As can be seen from the bolded language in subsection (1), the rule concerning objections to medical records extends to virtually any document authored by a medical provider. The comprehensive nature of the rule was intentional and adopted with the advice and approval of the Court's Rules Committee to avoid the very sort of dispute which has arisen in the present case. A timely objection forces the proffering party to either take a deposition, bring the medical provider to trial, or forgo the evidence. Thus, last minute evidentiary disputes over medical documents are avoided.
¶45 The claimant's objection to Dr. Rapaport's September 4, 2003 letter was made about the time of the pretrial conference and long after the deadline set in the scheduling order for any objection. Accordingly, I overruled the objection. However, recognizing that the claimant's counsel, who appears infrequently in workers' compensation matters and is not a member of the Court's Rules Committee, may not have fully absorbed the scope of Rule 24.5.317, I gave him the opportunity to examine Dr. Rapaport at trial or conduct a post-trial, supplementary deposition. Counsel declined that opportunity. Given my own evaluation of Dr. Rapaport's letter, I am neither surprised by nor critical of his decision.
¶46 I return now to the question of whether the claimant is suffering from an occupational disease. As I have already stated, the question I must answer "is whether occupational factors significantly aggravated a preexisting condition." Polk, 287 Mont. at 85, 951 P.2d 1018. The testimony of Dr. Blavatsky indicated that the claimant's knee replacement surgery was not inevitable on account of his 1967 and 1974 meniscectomies. Rather, his ultimate need for knee replacement surgery was determined by his subsequent activities. The claimant's subsequent activities included recreational activities, such as dog sledding, and weight lifting, which certainly contributed to his degenerative knee disease. However, his activities also included heavy lifting in occupational capacities and his standing and walking on hard surfaces while employed by MSE. His most significant periods of walking and standing on hard surfaces was between 1982 and 1994 - a period of nearly thirteen years - when he worked a significant amount of overtime hours and did so standing or walking on hard surfaces. His overtime ended in 1994 but by 1996, his inevitable need for knee replacements was already apparent. Both Dr. Blavatsky and Dr. Rapaport indicated in their testimony that the claimant's standing and walking on hard surfaces was a significant contributor to his degenerative condition and his need for surgery. Unquestionably, the claimant's recreational activities contributed to his condition. But Polk does not require that his work for MSE be the sole or even the substantial aggravating factor, only that it be a significant one. The claimant has carried his burden of proof in that regard.
¶47 I therefore find and conclude that the claimant's work at MSE was a significant factor in his degenerative knee disease and his need for knee replacement surgery.
¶48 I have considered whether any of the specific exacerbations the claimant has suffered since his employment with MSE constitutes a material aggravation of his condition such that MSE and its insurers are relieved of liability. See Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997). I start by noting that as of 1996 the die was cast concerning the claimant's need for knee replacement surgery. From the time of his commencing work for MSE until 1996, there are only two exacerbations of the claimant's knee condition. One was in December 1991 when he suffered a right knee strain while working with his sled dogs. There was no follow-up care and the event appears to be insignificant. The next medical care was in 1993 when the claimant suffered another right knee strain, again while working with his sled dogs. His knee complaints at that time resolved and there was no further need for treatment until December 1996 when the claimant hurt his right knee once more. However, by that time the die was already cast regarding his need for future surgery as to both knees. Moreover, there is no evidence that the specific nonwork incidents from 1991 onward materially accelerated or caused the claimant's need for surgery.
¶49 Finally, I consider liability as between the State Fund and ICNA. Liability is governed by section 39-72-303, MCA (1993-2003), which provides in relevant part:
Under both subsection (1) and subsection (2) the State Fund is liable. Under subsection (1) the State Fund is liable because it insured MSE during the period when the claimant was "last injuriously exposed." The injurious exposure was the claimant's standing and walking on hard surfaces, and he continued those activities until the time of his retirement. Under subsection (2), the State Fund is still liable since an occupational disease since claimant was unaware he suffered from an occupational disease until it was diagnosed in December 2000. At that time, his exposure was continuing and the State Fund was at risk.
¶50 My positing of liability on the State Fund may seem unfair, and I agree it is in light of the fact that the claimant was destined for knee replacements in 1996, long before the State Fund insured MSE. But section 39-72-303, MCA (1993-2003), provides a "clear bright line"(4) concerning liability. The line may be unfortunate but it is clear.
¶51 The claimant has also requested an award of attorney fees and a penalty. Both require proof that the insurer acted unreasonably in denying or delaying benefits. §§ 39-71-611, -612, and -2907, MCA (1999). The claimant has failed to persuade me that the insurers unreasonably challenged his claim.
¶52 Since the claimant has prevailed, he is entitled to his costs.
¶53 The claimant is suffering from an occupational disease which significantly aggravated an underlying condition of both of his knees. Since the State Fund insured the claimant's employer at the time the disease was discovered and the claimant first became aware of it, the State Fund is liable for his disease, including disability and medical expenses attributable to his knee replacements.
¶54 I make no determination as to the specific benefits due the claimant as I have not been requested to do so. The parties should be able to agree on the benefits due. However, in case they are unable to agree, I reserve jurisdiction to make that determination.
¶55 The claimant is not entitled to attorney fees or a penalty, however, he is entitled to his costs and shall file a memorandum of costs in accordance with this Court's rules.
¶56 This JUDGMENT is certified as final for purposes of appeal.
¶57 Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 6th day of April, 2004.
c: Mr. Thomas E. Martello
1. Concerning his treatment of the claimant between 1997 and 2000, Dr. Gallagher said:
(Id. at 38.)
2. The Polk decision involved application of the 1993 version of the ODA. At that time, section 39-72-408, MCA (1971-1999), provided in relevant part:
287 Mont. at 83-84, 951 P.2d 1017-18.
3. The Court's analysis is more fully set out below:
287 Mont. at 84-5, 951 P.2d 1018.
4. For the "clear bright line" language, I give credit here to attorney Larry W. Jones, who constantly urges me to draw "clear bright lines" for insurers to follow in adjusting claims.
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