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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1994 MTWCC 47
HEEBS FOOD CENTER
STATE COMPENSATION INSURANCE FUND
The trial in this matter was held on September 20 and 21, 1993, in Missoula, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Charles Rasmussen (claimant), was present and represented by Mr. Ken H. Grenfell. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Leo S. Ward. Claimant, Robert Rasmussen, Mark Schwager, Cindy Kern, Karen Black, and Carol Morris were sworn and testified. Exhibit Nos. 1-4, 7-14, 16 and 18-21 were admitted into evidence without objection. Exhibit No. 5 was not admitted as it was redundant to Ex. No. 1. Exhibit No. 6 was not admitted as it was redundant to Ex. No. 17. The claimant objected to Ex. No. 15 and the State Fund to Ex. No. 17. The objections were taken under advisement. After further consideration, claimant's objection to Ex. No. 15, which is a complaint made by claimant against Dr. Headapohl, is sustained. The claimant's specific contentions against Dr. Headapohl have little relevance to the issues in this proceeding and raise unnecessary collateral matters. The respondent's objection to Ex. No. 17 is overruled and that exhibit is admitted into evidence. Exhibit No. 17 is a prior statement of Cindy R. Kern who testified on behalf of the State Fund. Although it was not listed in the Pre-Trial Order, it was offered as a prior inconsistent statement of the witness and is therefore a rebuttal exhibit which claimant was not required to list. Wilson v. Swanson, 169 Mont. 328, 333, 546 P.2d 990 (1976).
The parties stipulated that the depositions of claimant, Dr. Ronald Hecht, Dr. Thomas Hildner, Dr. Ethan Russo, Dr. William Cooney, Dr. Dana Headapohl, Len Haniuk, Sue Haniuk, Lyle Happel, and Carole Weber be considered by the Court in reaching its decision.
Having considered the Pre-Trial Order, the testimony presented at trial, the demeanor of the claimant and the other witnesses, the exhibits and the parties' arguments, the Court makes the following:
1. Claimant was 38 years old at the time of trial. He is divorced and the custodial parent of two sons who are six and ten years old. In 1981 he graduated from Montana State University with a degree in construction engineering.
2. Following his graduation from college, claimant worked for Cypress Minerals, a mining company, as a project engineer. Cypress terminated his employment within a year.
3. Claimant next worked at Tri-County Lumber for "a couple months" loading, unloading, hauling and delivering materials, including lumber, sheetrock and shingles.
4. Claimant then went to work for Copeland Lumber Company in Oregon and Idaho. He loaded trucks and had some managerial responsibilities, including the hiring and firing of employees. After nine months Copeland terminated claimant's employment.
5. Claimant returned to Bozeman. Initially, he performed odd jobs, including work at a music store and playing in a band.
6. In 1985 claimant obtained employment at Heebs Food Center as a delivery person. His duties included making grocery deliveries, unloading trucks, stocking shelves, ordering merchandise and working as a checker.
7. Claimant testified that while working for Heebs on June 9, 1987, he slipped and fell, breaking his fall with his right hand. At the time he was pushing boxes into a dumpster in an alley behind Heebs Food Center. Claimant testified that he hurt his back, neck and shoulder.
8. On June 9, 1987, Heebs was insured by the State Compensation Insurance Fund under Plan III of the Montana Workers' Compensation Act.
9. The State Fund accepted liability for the accident and thereafter paid compensation and medical benefits. Claimant ceased working in November 1987. The State Fund paid temporary total disability benefits from that time until May 1993, a period of five and a half years.
10. Claimant is seeking a determination that he is entitled to permanent total disability benefits. In the alternative, he asks for permanent partial disability benefits. The State Funds opposes the request on two grounds. First, it argues that claimant's current disability is not related to an industrial accident and is due to other causes. Second, it argues that claimant is able to work and has not suffered diminished earning capacity. The first ground is based on the requirement that claimant must show that his disability is "related" to his industrial injury, Dumont v. Wickens Bros. Construction Co., 183 Mont. 190, 201, 598 P.2d 1099 (1979). State Fund asserts that claimant's current condition and disability are due to a preexisting injury arising from prior trauma, especially from ski jumping. It also vigorously urges that the June 9, 1987 industrial accident at Heebs never in fact occurred. It accuses claimant of making a false claim. This latter assertion is discussed further in the Court's conclusions of law, wherein we conclude that the State Fund did not properly raise fraud as a defense to the claim. The State Fund's contentions and evidence regarding an alleged fraudulent claim are therefore disregarded. Thus, the Court accepts as true the claimant's assertion that an accident occurred.(1) Since the State Fund disputes that the accident occurred rather than how it occurred, the Court must also accept claimant's account of the accident.
11. The claimant described his industrial accident as follows:
(Tr. at 61.) A few weeks after the accident, claimant reported to Dr. Ronald Hecht that "[t]he fall caused pain in my entire back and [I] felt nauseated for awhile because of the jarring effect."(2) (Ex. No. 12 and Hecht Dep. at 9.)
12. Since his injury the claimant has experienced continuous and progressive symptoms related to both his lower back and his cervical spine.
13. Other than a dozen chiropractic treatments in 1981 and one in 1982 for headaches and tension, prior to the accident claimant had no significant history of low-back or cervical spine complaints. (Ex. No. 1 at 550-2.) The 1981 chiropractic records reflect that "[o]nce in a while low-back bothers [claimant] nothing to [sic] serious." (Id. at 551.)
14. Claimant's complaints and symptoms in the months following the accident are reflected in the notes of the various doctors who examined him.
(Ex. No. 1 at 581.)
(Ex. No. 1 at 368.)
15. Claimant continued to have leg discomfort and calf cramping. In August 1989 Dr. Snider performed a percutaneous diskectomy of the L4-L5 intervertebral disc in an attempt to relieve his symptoms. According to Dorland's Illustrated Medical Dictionary (27th ed. 1988), a diskectomy involves removal of the intervertebral disc. The operative report and subsequent medical records, however, indicate that only part of the disc was actually removed or dissolved. In any event, the surgery failed to relieve claimant's low-back symptoms.
16. Dr. Snider performed a second diskectomy of the L4-L5 disc on March 28, 1990. At the same time he also fused the L4 vertebra to the sacrum and attached an EBI stimulator device to the spine.
17. The EBI stimulator was surgically removed on February 6, 1991.
18. Despite the surgeries, claimant has continued to experience low-back pain and left leg pain, along with neck and shoulder pain. At trial the claimant described his current complaints as pain in the lower back which sometimes radiates "through the legs and into the feet," and neck pain. (Tr. at 98.) His symptoms are more particularly described in the medical records of the various physicians who examined him in 1992. Those symptoms include pain in his lower back, left leg, neck, left shoulder, and, sometimes, left arm.(4)
(Ex. No. 1 at 346-7, 350, 355.) Dr. Thomas Hildner, who continues to treat claimant, was deposed on January 27, 1993, and described claimant's symptoms as follows:
(Hildner Dep. at 21-22.)
19. Claimant has a herniated cervical disc at C6-7. (Ex. No. 1 at 443-445, 455.) It is doubtful, however, that surgery on the disc would alleviate any of claimant's symptoms. (Id. at 455.) Dr. Hildner, who continues to treat claimant, attributes claimant's neck pain to fibromyalgia, which is an inflammation of the soft tissue. (Hildner Dep. at 22-3.) Dr. Gary also subscribes to the fibromyalgia diagnosis. (Ex. No. 1 at 455.)
20. Claimant's pain and other symptoms are genuine.
21. Claimant was a ski jumper in his youth. In addition to a number of falls and at least one concussion suffered from ski jumping, claimant has fallen from a high bar, breaking two arms; from a horse, breaking an arm; and from a goal post, injuring an elbow. He has also been involved in two car accidents. The State Fund asserts that claimant's current condition is a result of those incidents rather than an industrial accident.
22. At the State Fund's request, claimant was examined on September 21, 1992, by a panel of four Missoula physicians consisting of Dr. Dana Headapohl, a specialist in occupational medicine; Dr. Ethan Russo, a neurologist; Dr. Michael Sousa, an orthopedic surgeon; and Dr. Robert Shea, a psychologist. In its October 12, 1992 report to the State Fund, the panel concluded that "there is not evidence in the medical record connecting the neck condition with the 6-9-87 accident." (Ex. No. 1 at 358.) By implication and from the context of the letter, the panel determined that claimant's low-back condition is related to the industrial accident.(5) The report was signed by all four of the examiners.
23. Drs. Headapohl and Russo testified by deposition. Drs. Sousa and Shea did not testify either at trial or by deposition, although their medical records were submitted and considered.
24. Fairly summarized, Dr. Russo testified that the industrial accident could have contributed to claimant's low-back condition but that other factors, such as ski jumping, also contributed to the condition. As to the neck condition, Dr. Russo refused to render a medical opinion ruling out any relationship between the accident and the condition, but he also felt that neither he, nor any other medical practitioner, could render a medical opinion that it is related. This distillation of Dr. Russo's opinions is based primarily on the following testimony taken from his deposition:
(Id. at 24).
(Id. at 44:15-25.)
24. Dr. Headapohl's opinion took the following form:
(Headapohl Dep. at 23, emphasis added.)
25. The other medical practitioners testifying in this case opined that claimant's neck and low-back conditions are both attributable to his 1987 accident.
26. After weighing the medical evidence, and giving consideration to the accident and claimant's relative lack of symptomatology prior to June 1987, the Court is persuaded and finds that claimant's neck and back conditions were triggered by, and are related to, his industrial accident. Three of the five experts addressing the relatedness issue, including claimant's treating physician and an IME neurologist, gave opinions relating claimant's conditions to his accident. While sheer numbers of experts do not determine the outcome, the opinions of the three doctors concerning the lower-back condition find support in the panel report, which implicitly finds that the lower back condition is related to the accident, and grudging support even in Dr. Russo's testimony. With regard to the neck, Dr. Russo did not exclude the accident as a possible cause.
27. Karen Black, a vocational rehabilitation consultant hired by the State Fund, identified several possible jobs which in her opinion claimant was qualified and able to perform. The only jobs which received medical approval were those of 1) guitar assembler; 2) computer circuit board assembler; and 3) assistant construction estimator. (Ex. No. 1 at 358.) Those positions were medically approved by the medical panel which examined claimant in September 1992 but not by any of the other physicians; they were specifically disapproved by Dr. Gary. (Ex. No. 5.)
28. The panel's approval of the three jobs was based on Dr. Headapohl's analysis. Dr. Russo, the only other panel member to testify, indicated his deference to Dr. Headapohl because of her specialty in occupational medicine.(7)
29. Dr. Headapohl testified that her approval was contingent on modifications to each of the positions. For the guitar assembler position, the sound hole caps would have to be stored at approximately waist height so claimant would not have to stoop down or reach up. Claimant would also have to be allowed to change positions for comfort. (Headapohl Dep. at 30.) The computer circuit board assembler position was approved on the condition that claimant be allowed to change positions frequently, and with the proviso that claimant might have to begin on a part-time basis and work up to an eight-hour day. (Id. at 31.) The estimator position was approved on the condition that items used at work be arranged ergonomically, with no overhead lifting, and that claimant start part-time and work up to an eight-hour day. (Id. at 35.) Dr. Headapohl emphasized the need for an ergonomically designed work area and the opportunity to frequently change positions as essential for the claimant. (Id. at 26-8.)
30. During deposition Dr. Headapohl also approved the job of drafter provided that discs and paper are stored at a level higher than knee level and the work station is ergonomically suitable. (Headapohl Dep. at 39-40.)
31. Based on labor market investigations, Ms. Black testified that the accommodations suggested by Dr. Headapohl are easy to make and are generally provided by employers. (Tr. at 432.) She also testified that the suggested accommodations are reasonable. (Tr. at 432-433.) Her testimony was credible and is supported by common sense and experience: the accommodations are minor adjustments in an office type environment.
32. Dr. Gary was presented with the same job descriptions except for the drafter and flatly disapproved them. (Ex. No. 5.) In an office note of September 3, 1992, Dr. Gary states: "The total of these [medical problems] seem to make him totally disabled from any kind of meaningful, gainful employment at the time."(8) (Cooney Dep. Ex.)
33. Dr. Cooney expressed his opinion that claimant did not appear capable of tolerating even a light duty or sedentary occupation in the competitive job market in view of the symptoms he was experiencing. (Cooney Dep. at 17.)
34. Dr. Hildner testified that he agreed with Dr. Cooney's opinion regarding claimant's inability to return to any sort of work. (Hildner Dep. at 28-29.)
35. Chiropractor Hecht testified, "Is there some job out in the world that Chuck Rasmussen may be able to do? Chances are probably pretty good. I just don't know what it is." (Hecht Dep. at 56.)
36. Mark Schwager, a certified rehabilitation counselor retained by claimant, testified that the significant restrictions placed on claimant by a number of physicians render claimant unemployable in any type of occupation. He also testified that the positions of computer assembler and guitar assembler were not within claimant's normal labor market. He stated that the estimator position could be within claimant's normal labor market, but considering it had been ten years since claimant had utilized his degree, claimant would be at a disadvantage when competing with persons with a more current degree. Based solely on claimant's physical limitations, Mr. Schwager concluded that claimant had no transferable skills. Mr. Schwager admitted that he did no labor market analysis for claimant.
37. After evaluating the opinions of the physicians and vocational counselors, along with the Court's perception of the claimant, I find that claimant is presently permanently totally disabled. In doing so I have considered Dr. Headapohl's views concerning the employability of disabled persons:
(Headapohl Dep. at 10.) She acknowledged that claimant's condition "is very serious. I think he has very significant limitations." (Id. at 11.) She acknowledged that claimant would have difficulty in the job market:
(Id. at 11.) Pointing to examples of people with severe back injuries and back pain, Dr. Headapohl further acknowledged that an individual's ability to work depends on personal factors, including the ability to deal with pain.(9)
The claimant in this case has convinced his treating physician and two other IME physicians that he cannot tolerate even the most sedentary work environment on account of his pain and physical restrictions. I am also persuaded that at present he is incapable of working. The claimant has a history of difficulty in adjusting to the workplace, and showed little motivation for advancement even prior to his injury. A highly motivated individual able to get along with employers might endure the level of pain claimant is experiencing. Claimant does not presently have those traits.
1. This Court has jurisdiction over this proceeding pursuant to section 39-71-2905, MCA.
2. Claimant is requesting a determination that he is permanently totally disabled or, in the alternative, that he is permanently partially disabled. The injury occurred in June 1987; therefore, the 1985 version of the Montana Workers' Compensation Act applies. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380 (1986).
The State Fund accepted the claim as compensable and has paid both medical and temporary total disability benefits. However, in resisting claimant's request for permanent disability benefits, the State Fund contends that the claimant's disabling conditions are not related to an industrial accident because the accident never happened.
During the trial of this matter the State Fund was permitted to present evidence tending to prove that no accident ever occurred. Claimant's counsel, Ken Grenfell, objected to the State Fund injecting the issue of whether the injury occurred and the Court reserved ruling on the matter.
At trial respondent's counsel was less than clear as to what the State Fund was trying to prove. At times counsel's position appeared contradictory. In his opening statement, Leo Ward, counsel for the State Fund, referred to the claimant's industrial injury as "the alleged injury," drawing an objection from claimant's counsel, who objected:
(Tr. at 30-31.) The Court permitted Mr. Ward to continue with his opening. However, as he outlined evidence indicating that claimant "made up the entire claim" (Tr. 34), the Court interrupted to ask about the issues to be litigated:
(Tr. at 34-37.)
Later on, as Mr. Ward cross-examined claimant about reporting the accident to co-workers,
Mr. Grenfell renewed his objection to evidence of fraud:
(Tr. at 168-171.) As can be seen from the quoted portions, the State Fund attempted to skate around the fraud issue but was indeed attempting to prove fraud. It is also clear that the Court reserved ruling as to whether fraud was properly before the Court.
The State Fund's allegations of fraud raise a serious procedural matter which the Court recently addressed in Carmody v. Employers Insurance of Wausau, WCC No. 9302-6686 (May 6, 1994), wherein we held that an insurer cannot argue that a claim is fraudulent unless fraud is specifically set out as one of the insurer's contentions and as an issue.(10) In this case fraud is not mentioned in the Pre-Trial Order either as an issue or a contention. The only issues set forth in the Pre-Trial Order are:
In the contentions portion of the Pre-Trial Order, the State Fund does contend that "[c]laimant's disability, if any, was not caused by an industrial injury." But, as the Court stated in Carmody, fraud is an affirmative defense that is not fairly within such a broadly phrased contention; it is also a matter on which the alleging party bears the burden of proof.
A pretrial order may be amended. ARM 24.5.318 provides that "[a]mendments to the pretrial order shall be allowed by either stipulation of the parties or leave of court for good cause shown." (Emphasis added.) However, the State Fund has not requested an amendment of the Pre-Trial Order and good cause is lacking in any event.
In Nentwig v. United Industry, 256 Mont. 134, 845 P.2d 99 (1992), the Montana Supreme Court considered whether a district court abused its discretion in considering an issue not expressly raised in a pretrial order. (Rule 16, Mont.R.Civ.P., provides that the pretrial order shall control the course of the action but may be modified to prevent manifest injustice.) Nentwig held that the district court did not abuse his discretion where the issue was "implicit in those raised" and it was raised explicitly prior to actual trial. Id. at 140. In Nentwig the plaintiff sought to enforce a lease option. The trial judge sua sponte questioned whether the option was void for vagueness. Since interpretation and enforceability of the option was critical to the relief sought by the plaintiff, the Supreme Court held that the vagueness issue was fairly within the broader issues stated in the pretrial order. Compare with State Bank of Townsend v. Maryann's Inc., 204 Mont. 21, 664 P.2d 295 (1983) (holding that a negligent misrepresentation was not properly raised at trial when not mentioned in the pretrial order, even though the pretrial order alleged fraud and purposeful misrepresentation). Fraud is not "implicit" in the issues and contentions set forth in the Pre-Trial Order in this case and no excuse has been provided for the failure to raise a fraud defense.
Since the State Fund did not properly raise a fraud defense, the Court will not consider it and has disregarded all evidence offered to prove fraud. The claimant's account of the accident is therefore accepted.
3. While the State Fund may not challenge the occurrence of claimant's industrial accident, it has properly raised a relatedness issue. That issue arises out of claimant's ski jumping, horseback riding and gymnastics. The State Fund argues that claimant's current condition was caused by falls occurring during these previous activities rather than by the June 9, 1987 accident.
The claimant has the burden of proving that he is entitled to benefits. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973). The burden is by a preponderance of the probative, credible evidence. Dumont. v. Wickens Bros. Construction Co., 183 Mont. 190, 201, 598 P.2d 1099 (1979). The burden extends to proof that "the injury was the proximate cause of his disabling condition." Eastman v. Transport Ins., 255 Mont. 262, 266, 843 P.2d 300 (1992). The claimant has carried his burden. As found in Finding of Fact No. 26, a preponderance of credible evidence establishes that claimant's low-back and neck conditions were caused or at least triggered by the June 1986 accident.
4. The claimant has also proved that he is presently permanently totally disabled. Permanent total disability is defined as follows:
§ 39-71-116(13), MCA (1985). This definition of disability has non-medical as well as medical components. "To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury." Metzger v. Chemtron Corp., 212 Mont. 351, 355, 687 P.2d 1033, 1035 (1984) (citations omitted); accord Wood v. Consolidated Freightways, 248 Mont. 26, 29, 808 P.2d 502 (1991). The normal labor market consists of those jobs for which a petitioner is qualified based on his age, education, work experience, and residual physical capabilities. Spooner v. Action Sales, Inc., WCC Docket No. 1309 (January 23, 1983). Once the claimant presents evidence demonstrating that there is no reasonable prospect of employment in his normal labor market, the burden of proof then shifts to the employer to show that suitable work is available. Id.
A preponderance of credible evidence, including a preponderance of medical evidence, shows that claimant is presently incapable of performing any sort of work, even sedentary work, primarily on account of his pain. The principal evidence supporting the State Fund's position that claimant can work is the opinion of Dr. Headapohl, who approved three jobs for claimant. However, the doctor admitted in deposition that she is much more optimistic than other physicians concerning the ability of disabled persons to work. She conceded that claimant's condition is serious and that he might not be successful in returning to work. She also acknowledged that disabled person's ability to work depends on the individual's ability to cope with his or her disability, including any associated pain. In contrast to her optimism, claimant's treating physician, an IME neurologist and an IME neurosurgeon stated that claimant is incapable of working. Some deference must be given to the treating physician's opinion in this case since he is the doctor most familiar with claimant's condition and his ability to cope with his condition. Based on claimant's testimony and demeanor at trial, and his job and personal histories, it is the Court's own assessment that claimant is ill equipped to deal with his disability and pain in a job setting. His job history is spotty and evidences his difficulty in getting along with employers. His motivation and attitude towards employment were poor even prior to the accident.(11) The Court is persuaded that claimant presently lacks the personality traits and coping skills necessary for him to tolerate his disability in an employment setting.
1. This Court has jurisdiction over this matter pursuant to section 39-71-2905, MCA.
2. Claimant is entitled to permanent total disability benefits.
3. Claimant is entitled to attorney fees and costs in an amount to be determined by the Court.
4. The JUDGMENT herein is certified as final for purposes of appeal pursuant to ARM 24.5.348.
5. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact and Conclusions of Law and Judgment.
DATED in Helena, Montana, this18th day of May, 1994.
c: Mr. Ken H. Grenfell
1. See discussion infra in Conclusion of Law No. 2.
2. Claimant first saw Dr. Hecht on July 31, 1987. (Hecht Dep. at 7.) The quoted material is from a form claimant filled out and returned to Dr. Hecht on August 3, 1987. (Id. at 8-9.)
3. The full paragraph of the history taken by Dr. Hildner reads:
4. Dr. Ethan Russo, a Missoula neurologist who examined claimant in September of 1992 as a part of a medical panel examination requested by the State Fund, noted claimant's complaints as follows:
(Ex. No. 1 at 350.) Dr. Dana Headapohl, a specialist in occupational medicine who participated in the September 1992 panel examination, reported claimant's symptoms as:
(Ex. No. 1 at 346-47.)
Dr. Henry Gary, a Missoula neurosurgeon who examined claimant on a referral from Dr. Gary Cooney, recorded the following complaints in his office note of September 3, 1992:
(Ex. No. 1 at 455.)
5. The paragraph pertaining to the relatedness of the injury to the claimant's condition reads as follows:
(Ex. No. 1 at 358.)
6. A"do you agree with" question such as asked of Dr. Headapohl has limited evidentiary value. Such question depends on the accuracy of what the attorney depicts as the opinion of the other doctor, and is almost always incomplete since it does not contain other answers of the other doctor which may clarify or limit the opinion. It is preferable to ask the doctor to directly state his or her opinion.
7. Russo testified:
(Russo Dep. at 30.)
8. The State Fund argues that Dr. Gary excluded only full-time employment. The argument is based on Dr. Gary's September 3, 1992 letter disapproving several job descriptions and stating, "It is unlikely that he could handle any of these jobs on a full time basis." The statement, however, must be read together with the doctor's office notes, as quoted above.
9. Her testimony in this regard was as follows:
(Headapohl Dep. at 29.)
10. Our analysis would differ if the dispute herein was over "what happened" rather than whether it happened at all. In this case the State Fund is not arguing that claimant's particular account of the accident is inaccurate, rather it argues that no accident occurred at all.
11. The present discussion of motivation and attitude is in the context of claimant's ability to cope with his disability and pain. If all that were keeping claimant from employment was a lack of motivation to find and pursue employment, then such lack of motivation would not provide a basis for finding that claimant is unable to work.
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