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2001 MTWCC 9
WCC No. 9811-8105
TRAVELERS PROPERTY CASUALTY
and STATE COMPENSATION INSURANCE FUND,
WESTERN STAFF SERVICES and SHARBONO CONSTRUCTION COMPANY,
Summary of Case: Ronnie Stacks (Stacks) has a long history of back problems, including numerous aggravations following falls and other mishaps. During 1991 and 1993, he was injured while working for employers insured by the State Fund. The 1991 claim was settled, with medical benefits reserved to Stacks. The 1993 claim was accepted and eventually settled after the petition for hearing in this case was filed, again with medical benefits reserved to Stacks. On May 10, 1997, Stacks began working for an employer insured by Travelers and fell at work. Initially, his primary complaints involved his low back, but severe symptoms soon developed in his neck and arms, implicating his cervical spine. Stacks filed claims for workers' compensation against both Travelers and State Fund, followed by a petition for hearing in this Court against both insurers asking that the Court sort out liability for his low-back and neck conditions. Prior to trial, both insurers settled with Stacks, however, Travelers reserved a claim against the State Fund for indemnification. Trial proceeded on the dispute between the insurers, with Travelers seeking indemnification for amounts paid to Stacks, and each insurer seeking to hold the other liable for claimant's future medical benefits.
Held: (1) Under Belton v. Carlton Transport, 202 Mont. 384, 658 P.2d 405 (1983), and subsequent cases, including Perry v. Tomahawk Transp., 226 Mont. 318, 735 P.2d 308 (1987), Travelers was the insurer at risk at the time of the May 10, 1997 incident and bears the burden of proving facts which would shift liability back to State Fund. (2) The Court rejects Travelers' argument that no accident or injury occurred on May 10th because Stacks' leg "gave way" due to his preexisting condition. The credible evidence does not demonstrate that Stacks' leg gave way, rather he fell and slid down an embankment. (3) Based on the record as a whole, including the testimony of Dr. Paul Gorsuch, Jr., a neurosurgeon and Stacks' treating physician, the Court finds Travelers has proved claimant's 1997 fall caused only a temporary aggravation of Stacks' lumbar spine condition and that the aggravation ran its course within 12 weeks. After that 12 week period, the State Fund was liable for any compensation and medical benefits attributable to the low- back condition. (4) Travelers has not proven, however, that claimant's neck condition was only temporarily aggravated by the May 10th fall. In this unusual case, the Court finds as a matter of fact that the evidence neither preponderates in favor of a finding that claimant's preexisting condition was permanently aggravated, nor against that finding. Because Travelers bore the burden of proof on that issue, liability for compensation and medical benefits attributable to claimant's neck condition after the May 1997 fall, including all temporary total disability benefits paid since the injury, remains with Travelers. (5) Although State Fund failed to comply with the technical requirements of Coles v. 7 Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), after Stacks reached MMI with respect to his 1993 injury, that failure does not make State Fund liable for temporary total disability benefits after Stacks began working for Travelers' insured. See Larsen v. CIGNA Ins. Co., 276 Mont. 283, 915 P.2d 863 (1996).
¶1 Claimant, Ronnie Stacks (Stacks), filed a petition for hearing against both Travelers Property Casualty (Travelers) and the State Compensation Insurance Fund following a fall at work on May 10, 1997. Claimant had previously suffered work-related injuries in 1991 and 1993. The State Fund was liable for both of the prior injuries and had settled the 1991 claim on a full and final compromise basis, however, it remained liable for the 1993 injury. The claimant's petition requested the Court to sort out liability between Travelers and the State Fund.
¶2 Subsequent to the filing of the petition, both Travelers and the State Fund settled with claimant.
¶3 State Fund's settlement of the 1993 claim was approved by the Department of Labor and Industry (Department) on December 22, 1999. (Ex. 76 at 1.) Terms of the settlement included payment of $80,000 to Stacks. Medical benefits were reserved (id.), thus, the settlement did not cut off the State Fund's liability for medical treatment attributable to the 1993 industrial accident.
¶4 Traveler's settlement with the claimant was approved by the Department on April 11, 2000. Pursuant to the settlement, Travelers paid $12,500 to Stacks. (Ex. 75 at 1.) As with the State Fund settlement, medical benefits were reserved, thus Travelers continues to be liable with respect to future medical expenses payable on account of claimant's 1997 injury. The settlement also preserved Travelers' claims for indemnification from the State Fund for any of the benefits it had paid or would pay to Stacks in the future.
¶5 The parties notified the Court of the settlements. The issues remaining following the settlements concern liability between the two insurers.
¶6 A trial concerning the remaining issues was held May 9, 2000, in Helena, Montana. Travelers was represented by Ms. Sara R. Sexe. State Fund was represented by Mr. Greg E. Overturf. Ronnie Stacks participated only as a subpoenaed witness. A trial transcript has not been prepared.
¶7 Exhibits: Exhibits 1 through 46, and 50 through 81, were admitted without objection. Exhibits 47 through 49 were withdrawn.
¶8 Witnesses and Depositions: Ronnie Stacks, Denise Stacks, and Edward R. Tinker, Jr. testified at trial. The parties agreed that the depositions of claimant, Denise Stacks, Dr. Paul Gorsuch, Dr. Allen Weinert, and Dr. Jorge I. Ramirez, would be considered part of the record. The Court was present at the depositions of Dr. Paul Gorsuch and Dr. Allen Weinert.
¶9 Issues: Based on the issues set out in the pretrial order, and the arguments of the parties in connection with the issues, the Court restates the issues as follows:
¶10 Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, depositions, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
¶11 Ronnie Stacks is currently 48 years old. (R. Stacks Dep. at 9, 44.) He did not graduate from high school and has worked primarily in construction. (Id. at 11.)
¶12 Stacks has a long history of falls and injuries dating back to the late 1970s. In 1977, he fell off a roof. In 1981, and again in 1982, he dislocated his left shoulder. (Ex. 51 at 261.) In 1983, he had a low-back injury. He was hospitalized in late 1983 for lumbar strain associated with bilateral leg discomfort. (Id. at 278.) When he left the hospital in 1983, he "slipped and landed on his right gluteal area." (Id. at 272.) During January 1984, he was carrying his daughter "when his right leg suddenly became numb and gave way on him, causing him to fall." (Id. at 269.) On October 31, 1984, Stacks visited an emergency room for low-back pain radiating into his right leg and reported that his "right leg goes out." (Id. at 154.) On July 12, 1985, he again strained his low back while at work and reported radicular pain and muscle spasms. (Id. at 40-43.) On November 23, 1985, Dr. Donald J. Paluska, an orthopedic surgeon, diagnosed chronic ligamentous strain of the cervical and lumbar spine with mild functional overlay. (Id. at 56.)
¶13 Stacks was next injured on September 30, 1991. He was working for Omo Construction Company which was insured by the State Fund. According to emergency room records, Stacks reported he was "lifting a heavy anchor rale [sic]" and "felt a snap and sudden pain in the lumbar area." (Ex. 34 at 1.) In a later statement, he also described a "popping sensation" in his neck. (Ex. 52 at 10-11.) A diagnostic imaging report from the day after the accident states:
(Ex. 32 at 1, capitalized in original.)
¶14 Over the next several months, Stacks experienced soreness in his lower back and neck, muscle spasms, and numbness in his left hand. (Exs. 25 at 3-8, 52 at 20.) A CT scan taken during March 1992, indicated minimal cervical disk degeneration with bulging at C4-5, C5-6, and C6-7. (Ex. 27 at 3.) A scan of the lumbar spine showed "a disc herniation which could be coming from L4-5 extending inferiorly or from L5-S1 extending superiorly in the midline." (Id.) There was also "a diffuse disc bulge at the L5-S1 and slightly more prominent on the right side than on the left side." (Id.)
¶15 The State Fund accepted liability for Stacks'1991 injuries but in November of 1992 entered into a full and final compromise settlement agreement with him. (Ex. 52 at 40.) Only medical benefits were reserved.
¶16 Following settlement of the 1991 claim, Stacks continued to have back and neck pain. On December 15, 1992, he began treating with Dr. Allen M. Weinert, a board certified specialist in physical and rehabilitation medicine. (Weinert Dep. at 6.) During the initial examination, Stacks told Dr. Weinert he had not had previous low-back problems. (Id. at 8.) His statement, of course, was not true.(1)
¶17 In his deposition, Dr. Weinert summarized Stacks' medical conditions at the time. First, he noted "listhesis, lysis, at the L5 level, and some early degenerative changes." (Id. at 18.) Second, he noted "degenerative change in the cervical spine," including a "loss of vertebral height, which almost sounds like there's been an axial loading type of trauma to his C6 vertebrae." (Id.) He commented that prior reports made it "sound . . . like a compression fracture there." (Id.) He also noted "degenerative discs at C4-5 andC5-6." (Id. at 22.) Third, he noted that thoracic spine imaging showed "considerable degenerative change with spurring at multiple levels." (Id. at 19.)
¶18 During 1993 Stacks' continued to have back and neck pain. On April 13, 1993, Dr. Weinert recorded: "This weekend he helped his son put in 70 feet of fence and following that he had a severe exacerbation of his neck pain and both of his hands swelled." (Ex 8 at 13.) During June 1993, Stacks went "to the Emergency Room with exacerbation of low back pain following lifting a 75 to 100# tool chest out of the bed of his pickup this morning." Stacks reported "severe low back pain and spasm since that time," as well as "some radiation of pain into the right lower extremity." (Id. at 19.) The following month, Stacks "tried to do some body work on his car . . . but experienced a severe increase in low back and right lower extremity pain after approximately 30 minutes." (Id. at 22.) During September 1993, Stacks visited Dr. Weinert for "an exacerbation of neck pain." (Id. at 30.) Dr. Weinert recorded:
Ron returned to work as a painter at ASARCO a little over one month ago. He has noted significant improvement in low back pain, however, over the last week he has had progressive pain and stiffness in the neck. He cannot relate this to any specific incident or trauma.
1993 Injury and Subsequent Treatment
¶19 On October 8, 1993, Stacks was injured while working for Sharbono Construction Company (Sharbono) in Townsend, Montana. Sharbono was also insured by the State Fund, which accepted liability for the incident.
¶20 At deposition, Stacks described the incident as follows: "I was sliding [lumber] through my legs . . . I slipped and fell and broke my tailbone and jammed everything, all the way up." (R. Stacks Dep. at 24.)
¶21 Stacks was hospitalized for two days in Townsend. Several days after the injury he saw Dr. Weinert and reported he had "severe buttock and low back pain" and "intermittent numbness in the right big toe." (Ex. 8 at 32.) At the time of the appointment, Stacks was limping. Dr. Weinert's impression, as related to the buttock and low-back pain, was:
¶22 On November 11, 1993, Stacks returned to Dr. Weinert, who wrote:
Lumbar spine films from 10-18-93 including flexion/extension views failed to demonstrate any instability or acute changes. Spondylolysis at the L5 level with Grade I spondylolisthesis persists as noted in previous films. Partial compression fractures of the T11 and T12 levels were also evident as previously noted.
(Id. at 35.) Dr. Weinert recommended physical therapy for reconditioning. (Id. at 36.)
¶23 In December 1993, Stacks returned to Dr. Weinert, reporting low-back pain, and numbness and tingling in his thighs, as well as neck stiffness and headaches. (Id. at 38.) Dr. Weinert commented that "virtually nothing has happened since Ron's last appointment." (Id.) He advised Stacks to lose weight and stop smoking. (Id. at 39.)
¶24 On February 7, 1994, Stacks was treated at St. Peter's Hospital/Helena Family Physicians Clinic for a fall the previous day. According to the medical record: "He said he was walking along and his right leg gave out on him. He fell on his buttocks area. He is having some discomfort [in the] sacrococcygeal area and also going down his right hip and leg." (Ex. 26 at 3.)
¶25 On April 14, 1994, Stacks was examined by Dr. Ronald K. Hull on referral from Dr. Weinert. (Ex. 11 at 4.) Stacks reported constant pain in his low back, right buttocks, and right leg since the October 1993 fall. He claimed his symptoms had grown worse over time and now included headaches.
¶26 On June 1, 1994, Dr. Weinert placed Stacks at maximum medical improvement (MMI) for the 1993 injury and released him to light-duty work. (Weinert Dep. at 34; Ex. 8 at 63.) In his office note for that date, Dr. Weinert noted that claimant had some pain behavior and symptom amplification and had not complied with treatment recommendations. (Ex. 8 at 63.) He wrote:
RECOMMENDATIONS: I reviewed again with Ron his current medical diagnoses. I cannot see any objective evidence of any change in his examination even back from 12-15-92 when he was first seen in consultation for a previous Work Comp injury. As therapy is not proven to be effective, nor has Ron followed through with recommendations, I can't see that further conservative measures can be recommended. In addition, I don't feel that Ron is a good surgical candidate as I am very skeptical that he will achieve any true functional benefit from surgical intervention despite the fact that he has known spondylolysis with Grade I spondylolisthesis.
(Id.) He saw "no evidence of additional or new impairment," (id. at 64), and considered the October 1993 back injury "an exacerbation of a pre-existing condition." (Id.; Weinert Dep. at 34-35.) Dr. Weinert last examined Stacks on July 13, 1994. (Weinert Dep. at 70; Ex. 8 at 72-73.)
¶27 After Dr. Weinert released him to work, Stacks did "some" work on his own as a mechanic, working out of his brother's shop. (R. Stacks Dep. at 34.) Then on June 29, 1995, he applied for Social Security Disability Benefits. (Ex. 54 at 13.) His application was denied on November 15, 1996. (Id. at 22.)
¶28 Meanwhile, claimant continued to experience minor falls and injuries, as well as continued back and neck pain.
¶29 On March 10, 1995, Stacks began treating with Dr. James W. Crichton, who noted Stacks was a mechanic with "a lot of neck pain now. He has had two or three minor injuries. He banged his head into a fender on a car sliding on a mechanic's chair. Then he slipped on some ice." (Ex. 26 at 9.)
¶30 On July 24, 1995, Stacks saw Dr. Crichton because his right knee "gave out" when he got up during the night. He also reported back pain and told the doctor his business failed "mostly because he couldn't do the work." (Ex. 26 at 10.)
¶31 Stacks returned to Dr. Crichton on September 8, 1995. Dr. Crichton recorded:
(Id. at 11.)
¶32 Stacks returned to Dr. Crichton on December 21, 1995, complaining of neck and back pain. (Id.)
¶33 On June 12, 1996, Stacks saw Dr. Brooke Hunter, an orthopedic surgeon. He reported neck pain with numbness down into his right arm. Dr. Hunter noted:
On exam he has normal ROM. Still a fair amount of pain behavior. Negative Lhermittes and negative Sperlings. No atrophy or fasiculations in the arm. He remains quite heavily muscled. He has a positive Tinels at the ulnar nerve at the elbow. Reports light touch sensation in ulnar distribution. No weakness to manual resistance testing. Deep tendon reflexes, brachial radialis biceps, triceps, pectoral are unremarkable. X-rays show significant C5-C6 and C6-C7 degenerative changes.
(Ex. 7 at 8.) Treatment wise, Dr. Hunter thought physical therapy and anti-inflammatory medication would be "a reasonable start." (Id.)
¶34 Stacks returned to Dr. Crichton the following month. Dr. Crichton recorded that claimant had been "camping a few days ago, loading some garbage cans and so forth and got a lot more pain in his neck." (Ex. 26 at 13.) The doctor observed "tremor in his right upper extremity." (Id.)
¶35 On August 27, 1996, Stacks returned to the emergency room at St. Peter's Hospital, reporting he "was at work yesterday when he slipped on a concrete floor, fell and struck the back of his head." (Ex. 34 at 2.) Stacks had vertigo, persistent headache, and a sense of unsteadiness. Dr. D.L. Kuntzweiler ordered spine films, which he read as follows:
(Ex. 34 at 3.)
¶36 On December 12, 1996, claimant saw Dr. Crichton for continuing back pain. Dr. Crichton noted:
(Ex. 26 at 17.)
¶37 Dr. Jorge I. Ramirez then treated claimant. He first saw claimant on January 3, 1997 for complaints of back pain. (Ex. 26 at 17.) He found tenderness in paraspinal muscles and "no real other abnormalities." (Id.) On January 20, 1997, Dr. Ramirez referred Stacks to physical therapy for "chronic back pain." (Id. at 18.) On January 27, 1997, Dr. Ramirez ordered a functional capacity evaluation (FCE). (Id.)
¶38 A FCE was performed on February 11, 1997. (Ex. 28 at 39-48.) The exam was deemed valid with "minimal symptom exaggeration." (Id. at 40-41.) The evaluator concluded that Stacks was qualified for "Light/Medium work" and recommended a work hardening program. (Id. at 48.)
May 10, 1997 Injury
¶39 On May 10, 1997, Stacks went to work for Western Staff Services (Western), which provides temporary workers to other employers. He was assigned to a temporary job at the Lewis and Clark County landfill. (R. Stacks Dep. at 39.) This was the first time Stacks had worked for anyone other than himself since his 1993 injury at Sharbono. (Id.)
¶40 While working at the landfill that day, Stacks fell.
¶41 Later that day, Stacks went to the emergency room at St. Peter's Hospital. An ER nurse wrote:
11:35. Pt. enters per w/c Pt. c/o lower back pain states he fell at wk and slid down embankment. Scratches noted on [illegible] back, pt. unable to move on own states extreme pain.
(Ex. 34 at 6, emphasis added.) A handwritten note by the physician who examined claimant says, "Fell at work slid down bank, flat on back." (Id., emphasis added.) In his dictated history, the examining physician wrote:
(Id. at 4, emphasis added.)
¶42 The following day, May 11, 1997, Stacks went to Benefis Healthcare Emergency Room in Great Falls. The ER record sets out the following history as reported by Stacks:
(Ex. 50 at 303, emphasis added.)¶ 43 At the time of his fall, Western was insured by Travelers.
¶44 Stacks filed claims with both Travelers and State Fund. The Travelers claim, dated May 13, 1997, reads: "Caller states: Employee was picking up paper out of landfill, slipped & fell, cutting his finger and injuring his lower back." (Id. at 8, capitalized in original.) The record does not indicate whether Stacks or an employer representative supplied this information. On May 15, 1997, Stacks' attorney filed a Claim for Compensation with the State Fund. That document contains the first mention of Stacks' leg "giving out." It reads:
(Id. at 11, emphasis added.)
¶45 On May 28, 1997, Travelers accepted the claim under a reservation of rights pursuant to section 39-71-608, MCA. (Id. at 12.)
¶46 On May 15th, Dr. Paul Gorsuch, Jr., a neurosurgeon in Great Falls, began treating Stacks. Dr. Gorsuch's office note for that visit does not record a specific description of the May 10th fall. (Gorsuch Dep. at 9-10.)
¶47 At a deposition taken April 29, 1999, nearly two years after the incident, Stacks testified that he fell on May 10, 1997, because his leg gave out. "I was picking up around the culvert, and I went over to pick up some out of the ditch and my knee gave out, my leg gave out causing me to fall back." (R. Stacks Dep. at 14.) When asked for further explanation, Stacks testified:
(Id. at 16.)¶ 48 When asked at trial what happened on May 10, 1997, Stacks first testified that "he fell." He then testified he was "skewering" garbage, walked out to pick up more, and "went down." When asked whether he "fell or went down," Stacks stated, "I'm trying to think." He said he remembered walking, coming to a culvert, "then bam, I was down." He was asked if he remembered testifying at deposition that his knee "gave out." He did not remember that testimony, but went on to testify that his leg "gave out" frequently following the 1993 injury, "anytime, anyplace." (Trial Test.)
¶49 Stacks conceded having memory problems, which he attributed to his various medications and surgeries. He also acknowledged that while his leg has "given out" in recent years, he has also "slipped and fallen." (Trial Test.)
¶50 Edward Tinker, Jr. (Tinker), the foreman at the landfill, testified at trial. He described the area where Stacks was working on May 10, 1997. The area had a ditch. Tinker did not see Stacks fall, but recalled Stacks saying he had fallen along one of the slopes. He did not recall Stacks saying his leg gave out. On cross-examination, he acknowledged that he may have assumed Stacks was on a slope when he fell.
¶51 According to Denise Stacks, her husband told her his leg gave out and he slid down an embankment, landing on his leg and back. She described several prior instances in which Stacks' leg had given out causing him to fall. (D. Stacks Dep. at 10-12.)
Medical Condition Following the May 10, 1997 Incident
¶52 The immediate diagnoses of claimant's condition following his May 10th fall were unremarkable. At St. Peter's ER, lumbar spine films were taken, which disclosed previously diagnosis spondylolisthesis and degenerative changes of the lumbar spine. (Ex. 34 at 4.) The ER doctor's diagnostic impression was: "Fall with contusion of the low back." (Id.) The diagnosis the following day, at the Benefis Healthcare Emergency Room in Great Falls, was back pain and finger abrasion. (Ex. 50 at 304.)
¶53 Stacks' initial visit with Dr. Gorsuch on May 15th focused upon his low-back and leg complaints. (Gorsuch Dep. at 56.) The doctor explained:
(Id. at 56-57.)
¶54 Through review of 1994 x-rays, Dr. Gorsuch noted spondylolysis at L5-S1 and a mild listhesis or "slippage in the alignment of the vertebral bodies there between the L5 and the sacrum." (Id. at 11-12; Ex 2 at 1-E.) He further noted possible lumbar stenosis and significant cervical stenosis. (Gorsuch Dep. at 12.) He believed the cervical problem was "primarily at the disk spaces." (Id. at 13.)
¶55 From this initial evaluation, Dr. Gorsuch believed some form of decompression and fusion surgery was indicated for both the lumbar and cervical spine, but should not be undertaken until Stacks quit smoking. He delayed further imaging studies until Stacks quit smoking.
¶56 On June 3, 1997, Dr. Gorsuch informed Travelers that "the need for further treatment including possible surgery is due to the exacerbation which occurred 5/10/97. I believe this is an aggravation of her [sic] pre-existing condition. Whether or not it is a temporary aggravation remains to be seen." (Ex. 2 at 1A, emphasis added.)
¶57 On June 5, 1997, Stacks was admitted to Benefis Healthcare Hospital for pain control and new imaging studies. His primary complaints had shifted to his neck and arm. (Gorsuch Dep. at 18, 57.) A cervical myelogram and CT scan showed a C3-4 disk protrusion and significant stenosis bilaterally at C5-6, C6-7, and C7-T1. (Id. at 19.) Dr. Gorsuch testified these findings correlated with Stacks' complaints of arm pain. (Id.; Ex. 2 at 1.) Electrical studies suggested an acute C8 problem, implicating the C7-T1 level as well. (Gorsuch Dep. at 25-26.)
¶58 On July 17, 1997, Dr. Gorsuch performed an anterior C3-4 diskectomy and fusion, a C6 and C7 hinge-door laminaplasty, and bilateral foraminotomies at C5-6, C6-7 and C7-T1 levels. (Ex. 2 at 8; Gorsuch Dep. at 28-29.)
¶59 While Stacks' recovery went well initially, by November 1997 he was experiencing significant right arm pain and numbness. (Id. at 35; Ex. 2 at 10a, 11). An MRI and plain x-rays taken November 4, 1997, indicated spinal stenosis (narrowing of the spinal canal) at the C3-4 level "secondary to a central posterior fullness as well as a congenitally small canal," bilateral neural foraminal narrowing at the C5-7 levels, and degenerative disk narrowing at the C6-7 level among other things. (Id. at 11.)
¶60 On November 13, 1997, claimant was admitted to Benefis Healthcare Hospital following yet another fall. Dr. Gorsuch examined him. In his November 14th discharge summary, he noted a "recent exacerbation of right arm pain suggestive of C8 or T1 radiculopathy on the right side as well as increased right hand weakness and new pain 2nd and 3rd digits of the right arm." (Id. at 12.) A cervical myelogram and CT showed "fairly marked root asymmetry [at] C7-T1 on the right . . . and C5-6 on the left . . . [with] lesser degrees of root cut off at 5-6 and 6-7." (Id.) A new EMG demonstrated "chronic radiculopathies at 6, 7 and 8." (Id.)
¶61 On February 17, 1998, Stacks was treated after yet another fall. Dr. Gorsuch wrote: "He states the pain has been gradually worsening. He did have a fall which seemed to flare it up more than usual but he's no longer held on the Soma and the Darvocet. He's starting to look like he did: agitated, moving, unable to keep the right arm still due to the pain." (Id. at 13c.)
¶62 By March 10, 1998, Dr. Gorsuch noted the likelihood of a second surgery. (Id. at 15.)
¶63 After evaluations and consults by three other physicians - Drs. Terry Jackson, Mike Luckett, and Fred G. McMurray, (id. at 17; ex. 61), Dr. Gorsuch performed additional cervical surgery on July 2, 1998. Specifically, he did a "left anterior cervical discectomy at C5-6, C6-7, and a C7-T1 followed by fusion using right tricortical iliac crest." (Ex. 2 at 25; Gorsuch Dep. at 42.) Dr. Gorsuch opined that the second surgery was related to the first in that the first attempt at decompression may not have succeeded. (Id. at 43.)
¶64 On October 13, 1998, Dr. Gorsuch again examined Stacks, noting: "Overall, the patient's doing better. He's surviving his Morphine taper, looks refreshed, rested, well kept. He doesn't have the nervousness or the right arm tremor that he has when he's so uncomfortable." (Id. at 49.) By the end of October, however, Stacks' wife called Dr. Gorsuch's office to report "Ron is have [sic] a great deal of pain on the right side of his neck just like before the surgery." (Id. at 50.)
¶65 Stacks thereafter continued to complain of neck and back pain. On March 2, 1999, Stacks called Dr. Gorsuch to report back and leg pain after putting an alternator on his car. (Id. at 55.) Dr. Gorsuch noted: "I offered to see him and admit the patient tonight to the hospital but I did advise them that I would not give him any more narcotics and that I thought he needed to come off the Soma." (Id. at 55.) Dr. Gorsuch felt that Stacks was too dependent on narcotics. (Id.)
¶66 During his deposition, Dr. Gorsuch was asked for an explanation for Stacks' continuing complaints. He responded:
Because his underlying pathology, multiple pain generators, his history of multiple injuries. He's basically a chronic pain patient, which means that a large part of his pain was no longer functional pain. I mean, it wasn't necessarily indicating new damage. The psychology that goes along with a chronic pain patient was already in place and active.
(Id. at 36.)
¶67 Both Drs. Weinert and Gorsuch testified in this matter. The Court was present during their testimony, and their testimony is deemed part of the trial (although taken pursuant to notices of deposition).
¶68 As noted earlier, Dr. Weinert treated Stacks between December 15, 1992 and July 13, 1994. However, he was provided later medical records and asked for opinions relating to the issues presently before the Court.
¶69 Long before Dr. Weinert's testimony in the matter, Travelers supplied him with additional medical records and asked him for his opinions relating to its potential liability. Following claimant's July 17, 1997 surgery, Travelers provided Dr. Weinert with additional medical records and asked about the impact of the May 10th fall. On July 31, 1997, Dr. Weinert responded:
(Ex. 8 at 75, emphasis added.)
¶70 On August 18, 1997, Dr. Weinert answered additional questions as follows:
(Ex. 8 at 77-78, emphasis added.)
¶71 During April of 1998, Dr. Weinert was again asked by Travelers about ongoing treatment and whether a contemplated second surgery was related to the May 10, 1997 injury. After referencing the developments of late 1997 and early 1998, as well as recent imaging studies, Dr. Weinert concluded:
[I]t is evident that Mr. Stacks' ongoing symptoms are related to chronic degenerative changes of the cervical spine and some additional irritation noted at the left C5-6 level which would be a postoperative result of prior laminotomy foraminotomies which were performed due to chronic degenerative changes with narrowing of the neuroforamina due to bony spurring. Again, it can be stated on a medically more probable basis that the anticipated surgery is being performed for chronic degenerative changes of the cervical spine and not due to the alleged injury of 5-10-97.
(Ex. 8 at 80, emphasis added.)
¶72 Dr. Weinert's written opinions in response to Traveler's questions, can be summarized as follows:
¶73 During his deposition testimony before the Court, Dr. Weinert retreated from his opinion that only the C3-4 level surgery in July 1997 was due to the 1997 fall. His testimony was as follows:
(Weinert Dep. at 38, emphasis added.)
¶74 When asked a more general question as to whether the 1997 fall led to a temporary or permanent aggravation of Stacks' condition, Dr. Weinert responded:
I guess when you say that he would resume his normal status, Ron's normal state has been pretty much chronic pain. He's been in and out of the various doctors' offices since the 1980s. And I guess number one, I would stand by my statement that unless new pathology was identified, I don't believe it was a permanent change in his status. And so unless someone can show that [sic] me that there's new pathology there, I feel that the slip and fall would have only caused a temporary aggravation. It shouldn't have caused a permanent change.
(Id. at 41.) Dr. Weinert conceded he lacked sufficient information to make a medical determination whether or not there was new pathology as the result of the 1997 fall. (Id. at 42, 44.)
¶75 Regarding Stacks' back problems, Dr. Weinert found it impossible to causatively distinguish among Stacks' many falls and injuries: "Where one injury ends and another injury starts is almost impossible to delineate." (Weinert Dep. at 23.)
¶76 Dr. Weinert was asked about the cause of Stacks' repeated falls over the years. He responded that he could only speculate on a cause, going on to say: "It can be anything from medications, to pain behaviors, to psychologic state, to objective medical problems with his back; and to date, no one has identified any of those as being the cause." (Weinert Dep. at 69.)
¶77 Dr. Gorsuch's testimony addressed both the neck and back conditions. With respect to the Stacks' low-back condition, he concurred with Dr. Weinert, opining that Stacks' fall on May 10, 1997, caused at most a temporary aggravation of his low-back condition. (Gorsuch Dep. at 27.) He testified that Stacks' low-back complaints after the 1997 incident were consistent with his pre-1997 x-rays and were a continuation of his preexistent condition. (Id. at 24, 47.)
¶78 Dr. Gorsuch had much greater difficulty in sorting out the causes of Stacks' neck condition.
¶79 He did not agree with Dr. Weinert's initial assessment that the disk protrusion at the C3-4 level represented new pathology not present before the May 1997 fall. He did agree with Dr. Weinert that pre-June 1997 imaging studies disclosed no evidence of disk protrusion. (Id. at 64-65.) He believed he would have noted prior evidence of a disk protrusion if such existed, testifying: "My guess is that either it wasn't there on previous ones or those studies just weren't done. But I don't remember." (Id. at 65.)
¶80 However, based on his observations of the C3-4 disk during surgery, Dr. Gorsuch suspected the C3-4 condition had been present for more than a couple of months, which means it predated Stacks' May 1997 fall. He testified that the dura appeared very toughened, suggesting chronic irritation and compression. (Id. at 30-31.) In the doctor's experience, the appearance of the disk indicated a problem of more than two months duration, which in turn suggested the May 10th fall did not cause the condition. But, on a more probable-than-not basis, Dr. Gorsuch could not say that the disk condition antedated the May fall. (Id. at 31-34.)
¶81 Dr. Gorsuch testified that it was difficult to determine causation or aggravation with respect to Stacks' other cervical abnormalities:
(Id. at 78-80, emphasis added.)
¶82 Because Dr. Gorsuch's testimony did not neatly fit into legal criteria governing injuries and aggravations, with the consent of counsel, I attempted to determine how his opinions fit the legal criteria, asking whether the May 1997 accident caused a permanent worsening of Stacks' neck condition or hastened the need for new or additional treatment. The following testimony is the result of my attempt to pin these matters down:
BY THE COURT: Q. Let's ask the pathological problem or the physiological. Do you have an opinion as to whether or not the May 10th, 1997 fall materially worsened Mr. Stacks' physical condition vis-a-vis his cervical spine
(Id. at 89-91.)
¶83 When asked whether the problems leading to the second surgery were the result of previous pathology as opposed to what happened in May 1997 and later, Dr. Gorsuch testified:
Definitely related to the previous pathology and may have been exacerbated by subsequent events. That's going to be true for any problem in the cervical spine from now on, barring a very discrete fracture or something concrete like that.
(Id. at 43.) As I read his testimony, lacking some "concrete" injury, the natural progression of Stacks' pre-1997 cervical condition is responsible for his later cervical problems.
¶84 Dr. Gorsuch made three other points in his testimony which must be considered in resolving the issues before the Court. First, he testified that all of Stacks' cervical problems are interrelated: "I don't think you could take any level of his cervical spine and say it's not related to what was going on at the other levels. They're all linked." (Id. at 85-86.) This testimony is at odds with Dr. Weinert's testimony separating causation of the C3-4 disk surgery from other surgery which he later recanted. Second, Dr. Gorsuch testified that degenerative changes are sometimes, but not always, permanently aggravated by trauma. (Id. at 80.)
¶85 Finally, Dr. Gorsuch testified that Stacks' current disability is greater than his disability as measured by the February 1997 FCE. (Id. at 77-78 and see ¶ 38.) However, he could not assign the increased disability to the 1997 fall.(2) (Gorsuch Dep. at 77-78.)
¶86 Stacks was asked how his condition after the May 1997 fall was different than before the fall. During his deposition, he testified:
(R. Stacks Dep. at 57-59.)
¶87 At the trial held during May 2000, Stacks testified that his neck was "fixed" by Dr. Gorsuch. In general, he "still has some pain" but his situation after the surgeries is "better than it was."
Denise Stacks' Testimony Regarding Stacks' Condition
¶88 Denise Stacks testified at trial and by deposition. She testified that all three injuries -- referring to the 1991, 1993, and 1997 workplace injuries -- caused "big problems" and were significant in the deterioration of her husband's physical condition. According to Denise, her husband had back and neck problems after the 1991 injury, but after the 1993 injury he "started having more complaints of his neck and his shoulders and his arms hurting, his lower back hurting, his legs giving out, watching him not physically be able to do anything that he used to be able to do." (D. Stacks Dep. at 7.)
¶89 Denise testified her husband's condition further deteriorated after the May 1997 incident:
I've watched his right arm deteriorate down to just a very little bit of muscle mass in his arm. His arm shakes all the time. I've watched him try to get himself off the couch, and he can't pull himself up because his back is locked in a position to where he needs help to get up. I've watched him fall, just literally get up and fall because his right leg gives out. I've watched his left arm go through a complete spasm until they did the first surgery on it.
(D. Stacks Dep. at 9.)
¶90 Travelers argues that Stacks' preexisting conditions, for which the State Fund is responsible, caused his leg to give out and thereby caused him to fall on May 10, 1997. Irrespective of the legal issues raised by the contention, the Court must first determine whether in fact the contention is true.
¶91 After sifting the evidence, I am unpersuaded that Stacks' fall on May 10, 1997 was caused by his leg giving way on account of any preexisting condition for which the State Fund was liable. Initially, I am unpersuaded that claimant fell because his leg gave way. His initial reports to a coworker and to ER personnel were that he fell, not that his leg gave way. (¶¶ 41-42, 50.) Only after five days had elapsed did he contend that his leg gave way. (¶ 44.) Moreover, Stacks' testimony regarding his fall was conflicting and unreliable. (FN 1.)
¶92 Finally, Stacks' history of falls goes back more than 30 years, long prior to his 1991 and 1993 injuries. Medical testimony failed to provide any medical explanation relating his falls to his back or neck condition.
¶93 I am persuaded that the May 10, 1997 fall caused at least a temporary aggravation of Stacks' preexisting neck and back conditions, and prevented him at least temporarily, from working. In February 1997, Stacks underwent a FCE which found him capable of "Light/Medium work." (Ex. 28 at 40-41.) Though he was employed only briefly on the landfill job, he was functioning on that job until he fell. After the fall, he sought emergency treatment on account of "extreme pain." (Ex. 34 at 6.) Both Dr. Gorsuch and Dr. Weinert opined that the fall, at minimum, caused a temporary aggravation of Stacks' underlying, preexisting neck and low-back conditions. Neither insurer has contended that Stacks was able to work after the May 10th incident.
¶94 The more difficult question in this case is whether the aggravation was temporary and, therefore, immaterial to the Stacks' subsequent surgeries and disability. That question must in turn be divided into two parts. The first part concerns Stacks' low-back condition; the second, his neck or cervical condition.
¶95 With respect to Stacks' low-back condition, both Drs. Weinert and Gorsuch opined that the fall only temporarily aggravated claimant's low-back condition. Dr. Weinert indicated that Stacks' low-back should have stabilized within 6 to 12 weeks, and I adopt the 12 weeks as the outside limit for disability due to the temporary aggravation. Of course, by that end of that 12 week time, Stacks' primary problem was his neck.
¶96 In assessing the medical opinions regarding Stacks' neck, I give more weight to Dr. Gorsuch's opinions. I do so for several reasons. Dr. Gorsuch has more specific expertise to Stacks' neck condition and in fact treated the condition. His treatment included two surgeries. Dr. Weinert, on the other hand, did not have first-hand knowledge of Stacks' condition after July 1994, when he last treated claimant. Moreover, while providing written answers to Travelers stating that the 1997 fall permanently aggravated Stacks' cervical condition at the C3-4 level, when questioned during his deposition he retreated from his opinion, indicating that he did not have the actual operative report or sufficient information. With respect to the C3-4 disk herniation, he offered that it was "a new phenomenon or new injury, and would be unrelated to the 1991 or 1993 injuries. That's all I can state." (Weinert Dep. at 38.) When asked about whether the foraminotomies performed by Dr. Gorsuch at lower levels were the result of the 1997 fall, he offered, "I don't think I can answer. I can answer that I didn't think they were indicated at the time that I saw him - - from 1993 through 1994, they were not indicated; but whether his condition changed after that date, again I can't answer that." (Id., emphasis added.)
¶97 As set forth in greater detail earlier in this decision, Dr. Gorsuch did opine on a more- probable-than-not basis that Stacks' preexisting neck pathology was responsible for the surgeries, but qualified that opinion by pointing out that the preexisting pathology may have been "exacerbated by subsequent event." (¶ 56.) However, he was unable to give an opinion one way or another whether Stacks' 1997 fall permanently aggravated his neck condition. While he did opine that it increased Stacks' neck symptomatology, at least temporarily, he was unable to say that the increased symptomatology shortly after his fall was permanent. He did not know whether Stacks' neck was "worse" from right after the incident, or if it "got better after the initial flare-up [sic] before it got worse," (Gorsuch Dep. at 90), or whether it hastened his need for surgery. (Id. at 90-91;¶ 82.)
¶98 Dr. Gorsuch's inability to determine whether Stacks suffered a temporary flareup or permanent aggravation as a result of the 1997 injury makes more sense when Stacks' history is considered. That history shows that even before the 1997 injury his neck related symptoms waxed and waned, often in response to his activity level or incidents. For example, on June 12, 1996, Stacks saw Dr. Hunter reporting pain with numbness down into his right arm. In July 1996, he sought medical care from Dr. Crichton after he had been "camping a few days ago, loading some garbage cans and so forth and got a lot more pain in his neck." (Ex. 26 at 13.) The doctor observed "tremor in his right upper extremity." (Id.) Yet, on other occasions in 1996, his complaints to his physicians concerned his low back.
¶99 Given Stacks' underlying, preexisting cervical condition, his history of waxing and waning of his symptoms, the long-term degenerative nature of his condition, and Dr. Gorsuch's testimony, I am unable to find on a more-probable-than-not basis that Stacks' 1997 fall caused a new medical condition or permanently accelerated or worsened his preexisting cervical condition or his need for surgery. To make such a finding, I would need better insight into the issue than Dr. Gorsuch or be aware of other facts which would put me in a better position to evaluate the issue. The medical history, as I have indicated, shows a long history of waxing and waning of both Stacks' low-back and cervical conditions, often in response to his particular activities. He suffered repeated falls. Spinal imaging supports Dr. Gorsuch's opinion that he had long-term degeneration of his spine. Stacks' own complaints immediately following the 1997 fall were of low-back pain, not neck pain.
¶100 On the other hand, the evidence fails to persuade me on a more-probable-than-not basis that the 1997 fall did not cause any new medical condition (C3-4 herniation) or permanently accelerate or worsen claimant's preexisting cervical condition.
¶101 Finally, I am persuaded that if the 1997 fall either caused a new C3-4 herniation or accelerated or worsened Stacks' preexisting neck condition, then his entire neck condition -- at all levels -- was permanently, adversely affected. Dr. Gorsuch's testimony on this point was convincing: "I don't think you could take any level of his cervical spine and say it's not related to what was going on at the other levels. They're all linked." (Gorsuch Dep. at 85-86, emphasis added.)
¶102 The 1995 version of the Workers' Compensation Act applies to Stacks' fall since that was the law in effect on the date of his alleged injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶103 An injury which is compensable under the Workers' Compensation Act is defined by section 39-71-119, MCA (1995), which provides in relevant part:
¶104 Section 39-71-407(2), MCA (1995), expressly provides that an aggravation of a preexisting injury constitutes an injury within the meaning of the Act, stating relevant part:
The injury definition does not require that permanent harm flow from the injury, thus injury includes "temporary" aggravations of preexisting conditions, see Allen v. Treasure State Plumbing, 246 Mont. 105, 110, 803 P.2d 644, 647 (1990).
¶105 In this case, there is ample evidence that on May 10, 1997, the claimant suffered an injury within the meaning of section 39-71-407(2)(a)(ii), MCA. All four of the accident criteria specified in section 39-71-119(2), MCA, are met. Both Dr. Weinert and Dr. Gorsuch agreed that Stacks' suffered at least a temporary aggravation of his preexisting low-back and neck conditions.
¶106 Travelers argues, however, that the May 10th incident was caused by Stacks' leg giving way, therefore, it is not liable for any benefits. Its logic is summarized in its proposed findings, as follows:
(Respondent Travelers Indemnity Company's Amended Proposed Findings of Fact, Conclusions of Law and Judgment at 29.) Travelers' argument is unpersuasive since I have found as fact that Stacks' fall on May 10th was not caused by his leg spontaneously giving way. Travelers is liable for the fall.
¶107 The next issue is whether Stacks' injuries were only temporary, thus ending Travelers' liability upon resolution of the temporary effects of the injuries. Under the rule of Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983), Travelers was required to pay temporary total disability benefits during the period Stacks was disabled on account of any temporary aggravation, Allen v. Treasure State Plumbing, 246 Mont. 105, 110, 803 P.2d 644, 647 (1990), and by analogy, for medical expenses related to the temporary aggravation. But it is not required to pay compensation benefits for any permanent disability resulting from the original, underlying condition, or for medical expenses after Stacks' temporary aggravation fully healed.
¶108 Belton has further application to this case: Where a worker suffers two sequential industrial injuries affecting the same part of the body, the insurer for the second injury is initially liable for benefits and bears the burden of proof when seeking to shift liability back to the prior insurer. When a subsequent injury has arguably aggravated a preexisting condition, the second insurer avoids liability for that condition only upon proving the claimant had not reached maximum medical healing with respect to his prior workers' compensation injury or that the second injury did not in fact permanently aggravate the underlying condition for which the prior insurer was liable. This principle is spelled out in Perry v. Tomahawk Transp., 226 Mont. 318, 735 P.2d 308 (1987), where the Supreme Court stated:
To escape liability for the left arm injury, Rockwood [the second insurer] had to prove by a preponderance of the evidence that the second injury did not aggravate the preexisting left arm condition and/or that claimant's left arm had not reached a medically stable condition prior to the second injury. Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405. Rockwood had the burden of proof under Belton, 658 P.2d at 409, 410, wherein we stated,
Perry, 226 Mont. at 320, 735 P.2d at 310; see also, Richter v. Simmons Drilling, Inc., 241 Mont. 518, 522, 788 P.2d 308, 310 (1990). At trial, Travelers agreed that under Belton and its progeny, it bears the burden of proof.
¶109 Travelers does not take issue with Dr. Weinert's determination that Stacks reached MMI on June 1, 1994 with respect to his 1993 injury (Weinert Dep. at 35; Ex. 8 at 63); therefore the only remaining issue is whether it has provided persuasive evidence that Stacks 1997 injuries were temporary rather than permanent.
¶110 Travelers proved by a preponderance that the 1997 fall aggravated Stacks' low-back condition only temporarily, and that the aggravation had run its course within 12 weeks of the fall. Accordingly, beyond that 12-week period, the State Fund is liable for any compensation or medical benefits attributable to Stacks' low-back condition.
¶111 Stacks' neck condition is a different matter. In this unusual case, I have found as a matter of fact that the evidence preponderates neither in favor of a finding that Stacks' preexisting condition was permanently aggravated by the May 1997 fall nor in favor of a finding that it was not permanently aggravated. Dr. Gorsuch's answer to those questions was simply that he did not know, and I have no greater insight into those issues than does Dr. Gorsuch. Travelers' contention is not disproved, but it is also not proved either.
¶112 I have previously found persuasive Dr. Gorsuch's testimony that it is impossible to separate an aggravation at one cervical level from Stacks' overall cervical condition. Since Travelers failed to carry its burden of proof, I conclude that it, not the State Fund, is liable for all compensation and medical benefits attributable to Stack's neck condition after his May 1997 fall at work, including all temporary total disability benefits paid since his injury.
¶113 The only remaining issue is the effect, if any, of State Fund's admitted failure to comply with the Coles' requirements for terminating temporary total disability benefits. The Coles' requirements were adopted by this Court in Coles v. 7 Eleven Stores, Docket No. 2000, decided November 20, 1984, and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991). One of the Coles' requirements is that the insurer obtain "a physician's determination, based on his knowledge of the claimant's former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted by age, education, work experience, and physical condition." Wood, 248 Mont. at 30, 808 P.2d at 505 (italics in original). The State Fund agrees that the Coles' criteria applied at the time it terminated Stacks' benefits following his 1993 injury. It also agrees that it failed to obtain the required physician's determination that Stacks could return to work and agrees it is liable for any temporary total disability benefits accruing between June of 1994 and May 10, 1997. (Ex. 78 at 1.)
¶114 Based on the State Fund's failure to follow Coles, Travelers argues that the State Fund is liable for temporary total disability benefits which Travelers paid to Stacks after May 10, 1997, which amounts to $9,133.18. (Ex. 80.) Its argument overlooks Larsen v. Cigna Insurance Co., 276 Mont. 283, 294, 915 P.2d 863, 870 (1996), which held that the Coles' criteria are inapplicable once a claimant has returned to work. Here, Stacks returned to work on May 10, 1997, thus cutting off any of the State Fund's liability for continued temporary total disability benefits.
¶115 1. Travelers is liable for medical expenses relating to Stacks' low-back condition for the 12 weeks following his May 10, 1997 fall at the Lewis and Clark County Landfill. The State Fund is liable for any subsequent medical expenses for Stacks' low-back condition.
¶116 2. Travelers is liable for all temporary total disability benefits paid to Stacks following his May 10, 1997 fall at the Lewis and Clark County Landfill.
¶117 3. Travelers is liable for and shall pay for all medical expenses related to Stacks' cervical spine treatment incurred on and after May 10, 1997, including the 1997 and 1998 cervical surgeries.
¶118 4. Travelers is not entitled to indemnification for benefits it has paid Stacks.
¶119 5. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶120 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 1st day of March, 2001.
c: Mr. John C. Doubek
1. Stacks has made a number of conflicting statements regarding injuries and incidents. This statement is but one of them and I have concluded that he is not a reliable historian.
2. The increased disability might be the result of the natural progression of Stacks' preexisting conditions or because of wholly unrelated causes.
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