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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1994 MTWCC 117
LIBERTY MUTUAL INSURANCE COMPANY
HENNESSY'S DEPARTMENT STORE
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Held: Claimant’s 1990 fall and resulting disc herniation, which led to the surgeries, resulted from her leg giving way, which was a condition caused by her industrial accident. In addition, claimant’s physician opined that her industrial injury weakened her back, making her subject to the aggravations leading to the surgery. The insurer is liable for the surgeries and for claimant’s condition.
Injury and Accident: Aggravation: Generally. Where claimant’s 1990 fall and resulting disc herniation resulted from her leg giving way, which was a condition caused by her 1988 industrial accident, and her physician opined that her industrial injury weakened her back making her susceptible to later injury, the insurer is liable for 1991 and 1993 surgeries caused by the aggravation.
Benefits: Medical Benefits: Surgery. Where claimant’s 1990 fall and resulting disc herniation resulted from her leg giving way, which was a condition caused by her 1988 industrial accident, and her physician opined that her industrial injury weakened her back making her susceptible to later injury, the insurer is liable for 1991 and 1993 surgeries caused by the aggravation.
The trial in this matter was held on December 1, 1994, in Helena, Montana. Petitioner, Janna Pulliam (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, Liberty Mutual Insurance Company (Liberty), was represented by Mr. Larry W. Jones. Claimant testified on her own behalf. Michael K. Stevens and Loren Hartman also testified. The depositions of Dr. Brooke Hunter and Dr. Allen Weinert were submitted for the Court's consideration. Exhibits 1 through 7 were admitted.
A transcript of the proceedings has not been submitted to the Court.
Issues Presented: The issue in this case is whether Liberty is liable for back surgeries performed in 1991 and 1993. Liberty contends that the surgeries were unrelated to claimant's March 16, 1988 industrial accident.
Briefs: Prior to trial the claimant filed a Trial Brief and Liberty filed proposed findings of fact and conclusions of law. Both parties agree that post-trial briefing is unnecessary.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses appearing at trial, the exhibits, the depositions, and the arguments of the parties, the Court makes the following:
1. On March 16, 1988, claimant suffered an industrial injury while working for Hennessy's Department Store (Hennessy's) of Helena, Montana. She was unpacking a box of towels when she felt a pop in her back.
2. Claimant was thereafter diagnosed as suffering a small central herniated disc at the L4-5 vertebral level. (Ex. 3 at 1.) On November 4, 1988, Dr. Brooke Hunter, an orthopedic surgeon, performed a hemilaminectomy and diskectomy at the L4-5 level. (Ex. 3 at 2.) By the time of the surgery, the disc herniation had become larger and was prominent to the right side. (Ex. 3 at 5.)
3. Liberty accepted liability for claimant's injury and paid various compensation and medical benefits, including the cost of claimant's November 4, 1988 surgery.
4. In July of 1990, claimant settled her claim with Liberty for the sum of $5,500.00. The settlement agreement reserved medical benefits for the claimant.
5. On December 14, 1990, claimant fell near her mailbox, landing on her "rear end." (Pulliam Dep. at 17.)
6. Claimant experienced severe pain in her low back, radiating into her legs, and on December 15, 1990, she sought treatment at the St. Peter's Hospital Emergency Room in Helena. (Ex. 3 at 12-13.) She was examined by Dr. Hunter on December 18, 1990, and he prescribed physical therapy. (Ex. 2 at 14; Ex. 3 at 14.) Claimant was thereafter diagnosed as suffering from a herniated disc at the L5-S1 vertebral level. (Ex. 3 at 20; Ex. 2 at 15.) On April 22, 1991, Dr. Hunter performed a hemilaminectomy and diskectomy at the L5-S1 level.
7. In 1993 claimant suffered a recurrent herniation of the remaining disc material at the L5-S1 level. On November 17, 1993, claimant underwent a second hemilaminectomy and diskectomy at the L5-S1 level. (Ex. 3 at 25.)
8. Liberty has denied liability for the second and third surgeries on the basis that they were unrelated to the industrial injury and they were caused by claimant's December 1990 fall.
9. Claimant testified that her fall on December 14, 1990, was a result of her leg buckling underneath her. (Pulliam Dep. at 17) She further testified that her leg has buckled repeatedly since her 1988 industrial accident. (Pulliam Dep. at 15-16.) At trial Liberty's attorney agreed that if the Court finds that the fall was due to her leg buckling or giving way, and that the buckling was a sequelae to claimant's 1988 industrial injury, then Liberty is liable for the second and third surgeries.
10. While the evidence is conflicting, the Court is persuaded by a bare preponderance of the evidence that claimant's fall on December 14, 1990 was attributable to her leg giving way or her stumbling, and that her leg giving way was in turn attributable to her 1988 industrial injury. Dr. Hunter had no reference anywhere in his notes that claimant's leg or knee was buckling, and he stated that he would have recorded such complaints. (Hunter Dep. at 23-24.) Dr. Hunter's testimony is not consistant with claimant's testimony that her leg buckled repeatedly following her 1988 injury. While claimant did not immediately report that she had fallen because her leg buckled, and while Dr. Hunter stated in a report dated January 21, 1991, that claimant had fallen on ice, other evidence persuades me that her claims regarding her leg giving way are true based on the following:
11. Dr. Allen Weinert, a physiatrist who has treated claimant for pain since November 11, 1993, testified in his deposition that the second surgery was not "a direct result of " claimant's industrial injury. However, Dr. Weinert also stated in his deposition that he would defer to Dr. Hunter "in regards to an opinion as to whether the second surgery was related to either the industrial injury in 1988 or surgeries relating to that particular injury." (Weinert Dep. at 24-25.)
12. Dr. Hunter performed all three surgeries on claimant and has been claimant's primary treating physician since her 1988 industrial accident. In his opinion claimant's second and third surgeries were causally related to her industrial injury in 1988. (Hunter Dep. at 22.) Dr. Hunter's testimony on this matter is as follows:
(Hunter Dep. at 20-22.)
13. The Court finds Dr. Hunter's opinions persuasive that claimant's 1988 industrial accident predisposed her to the second injury and was as great a factor in that injury as anything else that occurred.
14. Both Drs. Weinert and Hunter agree that the third surgery was necessitated by claimant's second surgery. (Hunter Dep. at 21-22; Weinert Dep. Ex. 5.)
15. Liberty did not act unreasonably in denying payment for claimant's second and third surgeries because there was a legitimate dispute concerning the relationship of the L5-S1 disc herniation to claimant's 1988 industrial injury. Dr. Weinert gave Liberty a written opinion that claimant's L5-S1 disc herniation was "not a direct result of her March 16, 1988 injury." (Weinert Dep. Ex. 5.) There was also a legitimate factual dispute concerning the circumstances of claimant's 1990 fall, and specifically whether it was attributable to her slipping on ice or her leg buckling.
1. Claimant was injured on March 16, 1988. Therefore, the 1987 version of the Workers' Compensation Act governs her entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).
2. Claimant has the burden of proving by a preponderance of the evidence that she is entitled to compensation. Ricks v. Teslow Consolidated, 162 Mont. 469, 483-484, 512 P.2d 1304 (1973); Dumont v. Aetna Fire Underwriters, 183 Mont. 190, 598 P.2d 1099 (1979). Claimant must prove that her second and third surgeries are causally related to her 1988 industrial injury. The Court finds that she carried her burden of proof.
3. Initially, the Court is persuaded that claimant's fall on December 14, 1990, and a resulting herniation of the L5-S1 disc, was caused by claimant's leg buckling or giving way. It is further persuaded that claimant had a history of her leg giving way following her 1988 industrial accident and that the buckling was attributable to pain or weakness of the leg, or to claimant's antalgic gait. Thus, there is a direct relationship between the 1988 industrial accident and the claimant's 1991 and 1993 surgeries.
4. Irrespective of the buckling leg, case law requires a holding in claimant's favor.
In Belton v. Carlson Transportation, 220 Mont. 194, 714 P.2d 148 (1986), the Supreme Court held that an insurer is not liable for a subsequent work-related aggravation of a condition caused by an initial industrial accident where the claimant has reached maximum healing prior to the second injury. A different rule applies, however, where the subsequent aggravation is caused by a non-work related event. A subsequent non-work aggravation of a preexisting work-related injury is compensable even though the claimant has reached maximum healing. Guild v. Rockwood Insurance, 229 Mont. 466, 747 P.2d 217 (1987) and see Rightnour v. Intermountain Insurance Co., 225 Mont. 187, 732 P.2d 829 (1987). In Guild the Montana Supreme Court held:
Guild, 229 Mont. at 470.
In this case, the Court has found Dr. Hunter's opinions persuasive, in part because of the deference usually afforded the opinions of the primary treating physician. It is proper to defer to the opinion of the doctor with the greater knowledge of the claimant's medical condition. Pepion v. Blackfeet Tribal Industries, 257 Mont. 485, 489-490, 850 P.2d 299 (1993). Dr. Weinert also testified that he would defer to Dr. Hunter's opinion regarding the causation question.
In Dr. Hunter's opinion, claimant's 1988 industrial accident predisposed her to the second injury and was as great a factor in that injury as anything else that occurred. He noted that her initial accident caused her to become deconditioned, and that attempted work hardening following her first surgery triggered additional difficulties of the lower back.
Dr. Hunter's testimony was remarkably similar to the testimony in Rightnour, a case in which the Supreme Court held an insurer liable for an aggravation caused by a subsequent non-work related fall. In that case the claimant suffered a work-related low-back injury on January 19, 1982. She underwent a laminectomy at the L4-L5 level on September 30, 1982, and a second surgery at the same level on March 30, 1983. She reached maximum healing on November 22, 1983, and settled her claim on January 20, 1984, reserving medical benefits. In March 1984 she tripped over a dog's chain at home causing a subluxation of the lower lumbar vertebrae over one another. A third surgery, unrelated to the first two, was performed to fuse claimant's L4 vertebra to her sacrum. When asked about a causal connection between the third surgery and the industrial accident, Rightenour's surgeon testified that "the fall of 1984 could have caused the subluxation because the previous operation[s] had weakened her spine." Rightnour, 225 Mont. at 190 (brackets and quotes in original). The doctor further testified:
Id. Based on that testimony the Workers' Compensation Court found
Id. In this case, we have similar testimony establishing that the original industrial injury weakened claimant's back and predisposed her to the subsequent injury, and testimony establishing a continuity from the original injury to the third surgery. Under Rightnour, Liberty is liable for claimant's second and third surgeries.
5. Attorney fees and a penalty may be awarded only if Liberty's refusal to pay for the second and third surgeries was unreasonable. §§ 39-71-611 and -2907, MCA (1991). Liberty's denial of claimant's medical benefits was reasonable even though it has not prevailed. There was a legitimate factual dispute concerning the reason for her fall in December of 1990. Liberty also sought a medical opinion from Dr. Weinert concerning causation and was entitled to rely on his opinion in disputing the claim. Claimant is not entitled to a penalty or attorney's fees.
6. Claimant is entitled to costs.
1. Liberty is liable for payment of claimant's second and third surgeries.
2. Claimant is not entitled to a penalty or attorney's fees.
3. Claimant is entitled to costs. She shall have fourteen (14) days in which to submit her affidavit of costs. Liberty shall then have ten (10) days in which to file any objections.
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 twenty (20) days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.Dated in Helena, Montana this 22nd day of December, 1994.
c: Mr. Norman H. Grosfield
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