IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
2004 MTWCC 50
WCC No. 2002-0700
MONTANA STATE FUND
CARL MURRAY and
COMPANY OF NORTH AMERICA
ORDER DENYING MOTION FOR
Montana State Fund requests reconsideration of my decision in 2004 MTWCC
33, arguing in effect that the Court's finding concerning an occupational
disease is not supported by substantial evidence and that any liability
should rest on an earlier insurer.
motion for reconsideration is denied. Substantial medical evidence, including
the opinions and testimony of a physician who conducted an independent
occupational disease evaluation, supports the Court's finding that the
claimant's bad knees were materially aggravated by occupational factors,
specifically standing on hard surfaces, over a period of years.
Motion for Reconsideration. Motion for reconsideration will
be denied where the findings entered by the Court are supported by the
evidence and the law compels the result reached in the decision.
¶1 The Montana State Fund (State
Fund) moves for reconsideration of the Court's Findings of Fact, Conclusions
of Law and Judgment issued April 6, 2004. In that decision I found that
the claimant is suffering from an occupational disease and that the State
Fund, as the last insurer providing coverage during his work exposure,
is liable for his condition.
¶2 The State Fund specifically
objects to paragraph 15 of the Findings of Fact. That paragraph reads:
¶15 In December 2000 Dr.
Blavatsky told the claimant that standing on concrete while working
at MSE contributed to his degenerative knee condition. This is the first
time that the claimant was aware that occupational factors might be
contributing to his knee condition.
State Fund argues that the
finding is unsupported, citing testimony by Dr. Blavatsky to the effect
that when he first saw the claimant he did not take "an extensive work
history" from the claimant and relied principally on Dr. Rapaport's report
for details regarding claimant's work and non-work activities. (Blavatsky
Dep. at 23-24, 32-35.)
¶3 While the State Fund accurately
cites Dr. Blavatsky's testimony, it misses the point made in paragraph
15. The paragraph concerns the claimant's awareness of an occupa-tional
disease. The point is that Dr. Blavatsky discussed with the claimant the
fact that his job entailed standing on concrete and that such standing
contributed to his knee condition. The discussion constituted the first
time the claimant was made aware of a possible relationship between his
knee problems and his occupation. The claimant testified directly as to
the conversation and I credited his testimony. Dr. Blavatsky was not specifically
asked about the conversation or his knowledge of the claimant's standing
on concrete. His testimony that he did not take an extensive history concerning
the claimant's work and duties does not show that he was unaware of the
claimant standing on concrete at work for long periods of time. The State
Fund's argument is unpersuasive.
¶4 The State Fund takes issue
with paragraph 22 as well. That paragraph reads:
¶22 Dr. Gallagher testified
that the claimant's initial knee injuries were the ultimate cause of
his knee replacements. After noting that his work and recreational activities
over the years "probably had something to do with it," he said:
But I think his major
problem was he got dinged - and I don't even know the exact - I wasn't
involved when he did get injured, but my understanding is he had some
type of injury which kind of - that he never really got over and necessitated
(Gallagher Dep. at 28.)
When asked about the contribution of the claimant's work at MSE, he
replied, "I wasn't involved at that point in his treatment at all.
That's all been taken care of by my partner, Nick Blavatsky, and I
would defer to Nick's judgment on that." (Id. at 29.) He
noted that he was not familiar with the claimant's MSE job duties
and had no opinion concerning the role his MSE employment may have
played in his knee condition. (Id. at 37.) He simply noted
that at the time he first saw the claimant his knees were already
"worn out" (id. at 40), but despite that fact the claimant
continued to function at a very high level until late 2000. (Id.
at 38). [FN omitted.]
It urges that the finding disregards
a medical record that the claimant got "dinged" immediately prior to seeing
Dr. Blavatsky and that Dr. Gallagher's testimony must be read as affirmatively
opining that the claimant suffered a non work-related injury to his knee
immediately prior to his seeing Dr. Blavatsky.
¶5 State Fund's reading of
Dr. Gallagher's testimony is unsupported. The following was his testimony
concerning causation due to a new incident:
Q. But given what he had
for preexisting conditions, the type of work he did before he started
with MSE, what would be your opinion with respect to his ultimate knee
replacements, whether that was, as you had indicated previously, predestined
as early as you saw him in 1996 - - would it be your opinion that the
type of activities that he engaged in, both work and hobby, were the
reasons for his knee replacements and not his work at MSE Technologies?
A. You want me to give you
an expert opinion about Carl Murray's life and whether or not he got
hurt at MSE caused his major problem? Is that the crux of your question?
Q. Well, let me restate
it - -
Q. - - because that was
a pretty convoluted question.
The - - what I would ask
you to answer is: Within a reasonable degree of medical probability
A. More medically probable
than not, you mean?
Q. Yeah. - - in your opinion,
based upon your treatment, based upon your review of the medicals, based
upon your review of the depositions and what I've outlined with respect
to his work history and everything, would it be your medical opinion
that the activities predating his employment at MSE Technologies is
what ultimately led to his total knee replacement?
MR. EVERETT: To which I
object. That's really - - that's not relevant.
THE WITNESS: You now, I
guess if you're asking me for my medical opinion, I would say that Carl
was functioning at a fairly high level for a number of years, 1996 through
2000, when I treated him, seeing me once, maybe twice a year, getting
a shot of cortisone, doing all the things that you talked about, chopping
wood, getting posts, running dogs, and doing fairly well.
He was - - the writing was
on the wall. His knees were going to need to be replaced eventually
some day. And when that was, was when he just couldn't take it anymore
or when he had a significant enough of an injury where his knee kind
of got knocked over the edge to a point where he couldn't function at
the high level that he was functioning at.
So, you know, for me to
say more medically probable than not, I would say Carl had a lot of
arthritis in his knees, was functioning at a very high level for three
or four years when I knew him. He had intermittent cortical steroid
shots. For what his knees looked like on X-rays, doing fairly well.
So I would say that probably had something to do with it.
But I think his major problem
was he got dinged - - and I don't even know the exact - - I wasn't involved
when he did get injured, but my understanding is he had some type of
injury which kind of - - that he never really got over and necessitated
Q. Okay. Do you know what
- - what is your understanding as far as the injury, or anything, that
would be related to his employment at MSE?
A. Minimal. I wasn't involved
at that point in his treatment at all. That's all been taken care of
by my partner, Nick Blavatsky, and I would defer to Nick's judgment
Q. Does your file reflect
a December 26 office note?
A. What date and what year
would that be? December - -
Q. Twenty-six - - I'm sorry.
That's what - - and maybe it's just as easy. Why don't you take a look.
I'm referring to Deposition Exhibit 8 to the deposition of Carl Murray.
A. Yeah. That looks like
A note that was generated
at Express Care; is that right?
Q. Correct. Yeah. Yep.
A. February 21 in the emergency
room at Express - - or at the emergency and treatment center at Express
Care. I don't know if I have that note in my records. You know, it wouldn't
be unusual for me not to have it, actually. I can look at yours, I guess.
Q. I was asking Carl what
it was that he was describing here, and then on Page 139 and 140 of
his deposition, he explained it to me.
See here, beginning on Line
5, I indicated that I was handing him Deposition Exhibit 8?
A. Um-hum. Correct.
Q. Would you read that down
to - - onto Page 140, Line 2.
MR. EVERETT: I assume you
want him to read it to himself.
MR. MARTELLO: Yeah, please.
THE WITNESS: You asked him
a lot shorter questions.
MR. EVERETT: But his answers
were much longer. It's just the opposite.
MR. WARD: We're trying to
get around that part, the long answer part.
THE WITNESS: About the getting
hurt with the blankets, is that far enough?
Q. (By Mr. Martello) Yeah.
Yeah. I wanted to get your take on that.
What I gathered from that
was this was pretty close to the time that he left his employment with
Is it your take on that,
as it was mine, that - - he had injured his knee somehow by twisting
his leg in blankets in bed?
A. It sounds like he had
been out hunting and he woke up the next day and his knee was problematic
and painful for him, and that he says he assumed that he had probably
twisted his knee in the blankets and injured it. I mean, that's how
I read it, I guess.
Q. Okay. All right. The
part that I was wondering here, it says, quote: I assume, because of
what I had been told before by Dr. Gallagher, that I possibly twisted
it in the blankets.
Do you have any idea what
he's referring to there?
A. Got me. I never talked
to Carl about blankets or injuring your knees with blankets. Maybe he
might be referring to the fact that his knees have been irritated. You
know, but that's a long - -
When is that - - is that
February 2001? Is that - - is that Exhibit 8?
MR. WARD: Yes.
THE WITNESS: Is that the
thing that you gave me, Exhibit 8?
Q. (By Mr. Martello) Here.
Yes. Right there.
A. It says he twisted his
knee while walking his dog or something here, doesn't it?
He twisted his knee, persistent
pain for about a month. I don't know - - I don't see anything about
Q. Yeah. And I think he
was trying to - - he was trying to clarify. And that's what he was describing,
because he said he thinks the doctor got it wrong.
A. Three days of pain. Seeing
Dr. - - he's already seeing Nick. It looks like they got him up to see
Nick, Nick Blavatsky, the next day. It looks like he had a lot of arthritis
in his knee on his X-ray that day, too.
Yeah. So, I don't know where
the blankets are coming from. Sorry. I can't help you.
Q. Let me just take a look
at this file.
A. Sure. Yep. Yep.
MR. MARTELLO: Off the record.
(A discussion was held off
Q. (By Mr. Martello) Doctor,
looking at a 12/27, 2000, note of Dr. Blavatsky, does that appear to
relate to - - there's a mentioning of a twisting injury to that what
[sic] we've been talking about.
Mr. EVERETT: Well, I think
you're asking the doctor to speculate as to what Dr. Blavatsky is thinking
MR. MARTELLO: And that's
a good objection.
Q. (By Mr. Martello) What
does that note indicate to you why Dr. Blavatsky was seeing him on that
A. It looks like his knees
Q. Does it mention any sort
of an injury or just that its [sic] a continuation of - -
A. Presents for evaluation
having twisted his left knee, experienced severe discomfort, is what
the history reads.
MR. MARTELLO: I don't think
I have any more questions at this point.
(Gallagher Dep. at 26-33.)
As can be seen from the above
testimony, Dr. Gallagher clearly felt that the claimant's prior injuries
from years before predisposed him to knee replacement, a conclusion I
certainly agree with. He did not opine that a specific new injury precipitated
the immediate need for surgery.
¶6 State Fund urges that the
Court "relied almost exclusively on deposition testimony from Dr. Blavatsky."
(Brief in Support of Motion for Reconsideration of the Court's Findings
of Fact, Conclusions of Law and Judgment at 5.) Even if that were true,
it is for the Court to weigh the opinions of physicians, and, as I noted
in ¶ 21 of my opinion, Dr. Blavatsky specializes in knee replacements,
a fact that gives some additional weight to his opinions. Moreover, I
did not rely exclusively on Dr. Blavatsky's opinions. I also relied on
the initial opinions and testimony of Dr. Rapaport who performed an occupational
disease evaluation at the behest of the Department of Labor and Industry.
Dr. Rapaport found that the claimant's occupation contributed thirty to
forty percent to his condition. (Findings of Fact, Conclusions of Law
and Judgment, ¶¶ 25-29.)
¶7 State Fund also argues that
claimant's knee replacements were inevitable in 1996 when Dr. Gallagher
first saw the claimant. Dr. Gallagher's testimony lends some support to
that contention and so does Dr. Rapaport's testimony. Dr. Rapaport testified
that as of 1996 the claimant was destined for knee surgery independent
of any further injuries. (Id., ¶ 29.) This testimony is contrary
to the State Fund's argument that the claimant suffered a new, material
injury around the time he saw Dr. Blavatsky. It also overlooks the fact
that the occupational factors identified by both Dr. Blavatsky and Dr.
Rapaport did not suddenly arise after 1996 but were ongoing for many years
prior to that time. I summarized the situation in paragraph 34 of my decision,
¶34 In contrast, I have the
sworn testimony of Dr. Blavatsky, who testified that the claimant's
walking and standing on hard surfaces during his work for MSE over the
years was a significant contributor to his degenerative knee condition
and assessed the contribution at thirty percent. [Citation omitted.]
Dr. Blavatsky is an orthopedic surgeon specializing in knee replacements.
His speciality is more particular to the claimant's knee condition and
he is also board certified. I give his testimony the greater weight
against the post-deposition letter of Dr. Rapaport and find that the
claimant's work at MSE significantly contributed to the claimant's knee
condition and his need for surgery. While the claimant's 1967 and 1974
meniscectomies made the claimant susceptible to the degenerative knee
disease by eliminating the cushioning within the knee, Dr. Blavatsky's
testimony persuades me that they did not make knee replacement surgery
inevitable and that further degeneration was the result of the claimant's
post-meniscectomy activities, including his work at MSE. Absent the
claimant's vigorous lifestyle, his heavy lifting both at work and play,
and his extensive standing and walking, much of that at work, he may
not have ultimately needed knee replacements, or the need for such replacements
may have been significantly delayed. As Dr. Rapaport indicated in his
deposition, it is impossible to scientifically sort out the relative
contributions of work and nonwork activities; the proportions can only
¶8 I think the rub in this
case is that I held the State Fund liable for the occupational disease
even though it is apparent from my findings and the testimony of Dr. Gallagher
and Dr. Rapaport that surgery was inevitable as of 1996, long before the
State Fund was at risk. Thus, the most significant occupational exposure
was prior to 1996.
¶9 I agree that in all fairness
the liability in this case should fall upon the shoulders of Indemnity
Insurance Company of North America (Indemnity Insurance) rather than the
State Fund. However, as noted in paragraph 49 in my Conclusions of Law,
the liability in this case is dictated by section 39-72-303(2), MCA (1993-2003),
(2) When there is more than
one insurer and only one employer at the time the employee was injuriously
exposed to the hazard of the disease, the liability rests with the insurer
providing coverage at the earlier of:
(a) the time the occupational
disease was first diagnosed by a treating physician or medical panel;
(b) the time the employee
knew or should have known that the condition was the result of an occupational
The section is very specific
and I must follow it even though it violates my sense of fairness under
the facts of this case.
¶10 State Fund urges that subsection
(2) renders Indemnity Insurance liable since it was clear in 1996 that
the claimant would some day require knee replacements. However, the section
does not rest on knowledge that the claimant suffers from a medical condition
or that future medical care will be needed. It specifically states that
liability is determined as of the time the "occupational disease was first
diagnosed by a treating physician or medical panel." While the claimant
certainly suffered from bad knees in 1996, an occupational disease was
not diagnosed at that time and there is no evidence of medical opinions
indicating that occupational factors had aggravated his knee injuries
occurring in 1967 and 1974. The occupational disease diagnosis did not
come until the employer was insured by the State Fund. Similarly, there
is no evidence that the claimant was aware his bad knees had been aggravated
by occupational factors until the State Fund was the at-risk insurer.
¶11 I therefore reaffirm my
Findings of Fact, Conclusions of Law and Judgment. The State Fund's Motion
for Reconsideration is denied.
DATED in Helena, Montana,
this 8th day of June, 2004.
c: Mr. Thomas E. Martello
Mr. Bernard J. Everett
Mr. Leo S. Ward
Submitted: May 10, 2004