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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1995 MTWCC 62
DENNIS O. BEST, SR.
STATE COMPENSATION INSURANCE FUND
STOCKMAN'S BAR AND CAFE
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: Claimant has experienced low back pain with radiation into his legs since 1986, diagnosed that year as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome, which remains his diagnosis. He quit employments during 1988 and 1990 due to back pain and experienced numerous exacerbations of low-back pain between 1986 and 1991. In 1991, on a claim for social security benefits, he stated that he has constant and severe pain in his back and legs. In 1993, while working at a bar and cafe, claimant hit his hip on a table and fell, leading to an acute flare-up of his low-back condition. He quit employment shortly before he was about to be fired for drinking. When he filed a claim for workers’ compensation, the insurer paid medical benefits relating to the flare-up but denied compensation benefits. Claimant seeks permanent total disability benefits.
Held: Noting that claimant’s wife had been hired jointly with him at the cafe and performed 95% of the work, the Court found that a chiropractor’s opinion that claimant was worse off after the 1993 incident to be based on a misunderstanding of the facts. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.
The trial in this matter was held on November 16, 1994, in Billings, Montana. The petitioner, Dennis O. Best (claimant), was present and represented by Mr. Don Edgar Burris. The respondent, State Compensation Insurance Fund, was represented by Mr. Daniel J. Whyte. Claimant testified on his own behalf. Noel Woodrich and JoAnn Piehl also testified. The post-trial deposition of Dr. Richard Vande Veegaete was submitted for the Court's consideration. Exhibits 1 through 9 were admitted into evidence. While Exhibit 2, which consists of Social Security Administration documents generated in connection with claimant's request for social security disability benefits, was admitted in its entirety, the only documents deemed relevant and considered by the Court are medical records and statements and representations made by or on behalf of the claimant. Finally, claimant offered Exhibits 10 through 16 after trial. The exhibits are untimely and are refused.
Issues Presented: The statement of issues set out in the Pretrial Conference Order have been modified as the result of colloquy with counsel at trial and are rephrased as follows:
Issue number 2 concerns travel by claimant, who now lives in Harlowton, to Billings, for treatment by Dr. Vande Veegaete. The amount in controversy is approximately $500. (Tr. at 77.) Dr. Vande Veegaete treated claimant for his back problems for a number of years prior to his industrial accident of June 18, 1993. Neither party knew whether chiropractic care is available in Harlowton. In view of the small amount at issue, the Court recommended to the parties that the State Fund consider paying for previous travel and that the parties then address the question of future chiropractic care by determining whether any chiropractor practices in or visits Harlowton, and if so, whether Dr. Vande Veegaete's services are unique and necessary such that claimant is justified in continuing to travel to Billings for treatment. Claimant's proposed findings of fact indicate that the parties have resolved this issue, and the State Fund does not mention the matter in its proposed findings. The Court therefore deems the matter resolved and will not address it.
Having considered the Pretrial Conference Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition, exhibits, and the parties' proposed findings of fact and conclusions of law, the Court makes the following:
1. Claimant is approximately 55 years of age. He is presently married to Linda Best.
2. Over the years he has worked as a cook, carpenter, truck driver and welder, and characterized himself as a "jack of all trades but a master of none." (Tr. at 52.) He has a history of chronic alcoholism and other physical ailments.
3. Claimant injured his low back in an industrial accident in September of 1986, in Issaquah, Washington. He was on temporary total disability benefits from that time until April 19, 1991. (Tr. at 26.) He settled his workers' compensation claim in 1991.
4. Dr. Vande Veegaete has treated claimant with respect to is low-back condition since September 12, 1986. (Vande Veegaete Dep. at 7.) In 1986, Dr. Vande Veegaete diagnosed claimant's condition as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome; his current diagnosis is the same. (Id. at 7, 21, 30.)
5. Since 1986 claimant has experienced low-back pain which frequently radiates into his legs (Id. at 8-9, 30; Dep. Exs. 8, 10, 11, 14-16.) On several occasions between 1986 and 1991, Dr. Vande Veegaete's records and correspondence reflect that claimant was limping and that his legs buckled. (Id. Exs. 12, 13, 14, 16.) As of March 1, 1991, Dr. Vande Veegaete reported:
(Id. Ex. 16 at 1.) There is then no record of treatment by Dr. Vande Veegaete until July 12, 1993. (See id. Ex. 17 at 1.) However, claimant testified that the doctor provided periodic chiropractic treatment from December 1986 until shortly before the June 18, 1993 Stockman's Bar injury. (Tr. at 30-31.)
6. On August 1, 1988, claimant went to work as a cook at American Legion Post 4 in Billings, Montana. On August 30, 1988, he quit that employment "because of my back - couldn't stay on my feet." (Ex. 2 at 203.)
7. On August 7, 1990 he made a second attempt to work when he hired on as a cook at the Argonaut Supper Club located at the Corral Motel in Harlowton, Montana. (Ex. 2 at 203; Tr. 31, 52.) Claimant worked approximately 60 days, however, he then quit because of severe back pain and numbness in his legs. (Tr. at 36-37; Ex. 2 at 163, 203.) A March 1, 1991 letter of Dr. Vande Veegaete provides the following information concerning this attempt to work:
(Vande Veegaete Dep. Ex. 16.)
8. The claimant's work at the American Legion and at the Argonaut were his only attempts to work between 1986 and 1992. (Tr. at 52.)
9. Between 1986 and 1991 claimant experienced numerous exacerbations of his low-back condition.
10. In the spring of 1988 he attempted to lift a sofa and developed acute low back pain which caused him to drop to his knees. (Vande Veegaete Dep. at 46; Dep. Ex. 10 at 4.)
11. On August 22, 1989, he was helping a friend can beets when he bent over, heard a pop in his back, and dropped to his knees. (Id. at 55-56; Dep. Ex. 13.) As of the time of this episode, Dr. Vande Veegaete wrote, "His current episode underscores the weakness, degeneration and limiting effect of his dysfunctional low back. This is a chronic reoccurring problem." (Id.)
12. On June 27, 1990, Dr. Vande Veegaete wrote that claimant "reported that his low back is sore all the time." Claimant further reported that his "low back becomes acute whenever he does any physical labor (changing a tire, bowling, bending over a stove or a sink to cook, kneeling in the garden or any bending from the waist)" and that his "[l]eft leg has 'given out on me for no reason three times this year and caused me to fall.'" (Id. at 58; Dep. Ex. 14.) Dr. Vande Veegaete characterized claimant as having "numerous exacerbations for minor incidents involving normal daily activity of a mild physical nature." (Id. at 59.) As of that time, however, the doctor still felt that claimant was capable of light duty work. (Id. at 60-61; Dep. Ex. 14.)
13. By early 1991, Dr. Vande Veegaete changed his opinion concerning claimant's ability to perform any sort of work. On January 18, claimant suffered yet another acute exacerbation of his low-back pain after lifting 20 pounds. (Vande Veegaete Dep. at 61; Dep. Ex. 15.) On January 27, 1991, the doctor wrote:
(Id. at Dep. Ex. 15.) He concluded, "It is anticipated that he will recover from his pain, but it is not anticipated that he will be able to return to useful work." (Id., emphasis added.) On March 3, 1991, the doctor wrote, "Given his longstanding difficulties and pain when sitting, standing, walking, lifting, carrying, bending, and stooping, I do not feel he is capable of even sedentary work or a sedentary job." (Id. at 66; Dep. Ex. 16.) At his deposition, Dr. Vande Veegaete confirmed that, in his opinion, claimant has been unable to work since 1991. (Id. at 24, 69.) His understanding of claimant's work at Stockman's was that claimant's sole job was to "boss" his wife, who did the actual work. (Id. at 77.)
14. On January 30, 1991, claimant filled out an application for social security disability benefits. (Ex. 2 at 162.) (This was his second application.) In response to a question about his disabling condition, claimant wrote, " I injured the lower disks in my back while working as a carpenter in the State of Washington. It progressively worsened. I have constant and severe pain all the time in the back, legs, etc." (Id.)
15. In a Disability Report prepared in conjunction with his application, claimant stated that his disabling condition was his "lower back, my legs go numb on me." (Ex. 2 at 208.) When asked how his condition keeps him from working, claimant wrote, "I can't stand more than 15 or 20 minutes at a time and I have continuous low back pain & cannot lift or carry more than 5 pounds without experiencing severe low back pain." (Id.) He reported that his condition made him stop working on October 7, 1990. (Id.)
16. On November 12, 1992, claimant and his wife were hired jointly to operate the Stockman's Bar & Cafe in Rapelje, Montana. (Tr. at 33-34, 57-58, 61.) They were hired to purchase supplies, cook, tend bar and wait on tables. (Tr. at 58, 61.) They began on November 12, 1992, and quit work on June 30, 1993. (Tr. at 55-56.)
17. Claimant testified at trial that some days he performed 90% of all the work at Stockman's and that on other days he only performed 60% to 70% of the work, his wife performing the remainder. (Tr. at 39-40.) His testimony was not credible. He prepared written statements for others to sign in which he represented that his wife did 90% to 95% of the work at Stockman's:
18. On August 14, 1993, claimant's attorney wrote a letter to the Administrative Law Judge for the Social Security Administration, which reads in pertinent part:
(Ex. 2 at 381-82.)
20. Claimant resigned on June 30, 1993. At that time his employer, Mr. Noel Woodrich, was about to fire him for drinking on the job. (Tr. at 56.) Claimant did not tell Woodrich that he was quitting because of the June 18, 1993 injury.
21. Claimant filed a claim for compensation. (Ex. 4.)
22. At the time of claimant's industrial accident, Stockman's was insured by the State Fund.
23. The State Fund accepted liability for medical benefits payable on account of the injury but denied payment of compensation benefits.
24. Claimant has not worked since he resigned at Stockman's.
25. Following his reinjury, claimant saw Dr. Vande Veegaete on July 12, 1993. (Vande Veegaete Dep. Ex. 17.) At that time claimant was limping and complaining of acute low-back pain radiating into his left leg and calf. (Id.) Upon examination of claimant, the doctor's findings were very similar to his findings in 1986. (Vande Veegaete Dep. at 30-31.) The reinjury caused Dr. Vande Veegaete to conclude that claimant "totally unable" to work. (Id. at 24, 75.) In the doctor's opinion, claimant was worse after the June 18, 1993, incident than before. (Id. at 24, 75.)
26. From the foregoing evidence, I make the following ultimate findings of fact:
27. Based on his performing 5% of the work at Stockman's, claimant's wage at Stockman's was $13.81 weekly ($1,200 x 12/52.14 x .05). Thus, even if he were entitled to compensation benefits, his permanent total disability rate is $9.20 weekly.
1. The law in effect at the time of the injury governs the claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986). Consequently, the 1991 version of the Workers' Compensation Act applies in this case.
2. Claimant contends that he is permanently totally disabled as the result of his June 18, 1993 injury and that he is therefore entitled to permanent total disability benefits. He bears the burden of proving that he is entitled to benefits, Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973), and he must prove his entitlement by a preponderance of the probative, credible evidence, Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
3. Permanent total disability is defined in section 39-71-116(16), MCA, as follows:
Claimant does not meet the definition of permanent total disability. Although he is permanently totally disabled, his disability antedated his June 18, 1993 injury. And while he did some minimal amount of work at Stockman's, he failed to persuade me that his condition was materially worse after the 1993 flare-up or that it prevented him from continuing at Stockman's. It appears more likely that he left in the realization that the employment of he and his wife was about to be terminated on account of his drinking.
4. Claimant is not entitled to costs, attorney fees, or a penalty.
1. Claimant is not permanently totally disabled as a result of the June 18, 1993 injury.
2. Claimant is not entitled to disability benefits.
3. Claimant is not entitled to an award for attorney's fees, costs or a penalty.
4. This Judgment 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, Conclusions of Law and Judgment.
Dated in Helena, Montana, this 23rd day of August, 1995.
c: Mr. Don Edgar Burris
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