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1999 MTWCC 71
WCC No. 9903-8173
LIBERTY NORTHWEST INSURANCE CORPORATION
COLUMBIA CONSTRUCTION, INCORPORATED
DECISION ON APPEAL
Summary: Insurer appealed determination of DOL hearing officer that claimant suffered from an occupational disease, not an injury.
Held: Hearing officer affirmed. While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.
¶1 This is an appeal from a Department of Labor and Industry (Department) decision finding that Michael Stoltz (claimant) is suffering from an occupational disease.
¶2 The only witness testifying at the hearing below was the claimant, who testified by telephone. The hearing transcript amounts to 15 pages. All other evidence was presented by way of documentary exhibits and depositions, specifically those of Larry Luce, Richard Brian Trinastich, Randale C. Sechrest, M.D., Michael Righetti, M.D., and the claimant.
¶3 Claimant, who is forty-three years old, has a long history of back problems. In 1984, while employed by Plum Creek Timber Company (Plum Creek), he suffered an industrial injury to his back. Following the injury, he continued to work in pain for almost eleven months. The pain became progressively worse and included right leg pain. In April 1985, claimant underwent surgery described as "EXCISION LATERAL PROTRUDING DISC L5-S1." (Ex. C at 1, 10, caps in original.)
¶4 Claimant returned to work following his 1985 surgery and continued to work for Plum Creek until sometime in late 1987 or early 1988, at which time he began working for Columbia Construction, Inc. (Columbia). Over the next decade claimant continued working, although with chronic low-back pain. (Tr. at 9.)
¶5 In August of 1995, claimant acutely experienced increased low back pain and renewed right leg pain. He was treated by Dr. Michael Righetti, an orthopedic surgeon. (Righetti Dep. Ex. 1.) Following failed attempts at more conservative treatment, on November 1, 1995, Dr. Righetti performed a second surgery at the L5-S1 level, which he characterized as a "Revision L5-S1 lumbar laminectomy with foraminotomy and discectomy, right side, L5-S1." (Id. at 3.) The surgery was the result of a non-work related aggravation and no claim for compensation was ever filed by claimant.
¶6 Claimant returned to work at Columbia following this surgery and thereafter worked until December 1996. However, in November 1996 he experienced renewed, acute symptoms. Claimant described the onset of his symptoms as occurring over several days while working on a project at Stoltze Lumber Company (Stoltze Lumber) in November 1996. He could not identify a singe event as giving rise to his acute symptoms. In a January 16, 1997 statement given to Liberty's adjuster, he responded to the adjusters questions regarding the onset of his symptoms as follows:
(Stoltz Dep. Ex. 2 at 5.)
¶7 Claimant's deposition testimony concerning the onset of acute symptoms in November 1995 was consistent with his report to Liberty's adjuster. He could not identify a moment in time when he knew that he had reinjured his back. (Tr. at 10; Stoltz Dep. at 22-23.)
¶8 Claimant continued to work until December 16, 1996, when he finally "had enough." (Stoltz Dep. at 20.)
¶9 On January 2, 1997, he returned to Dr. Righetti, who had performed the 1995 surgery. Dr. Righetti's office note of that date records:
(Ex. A at 6.) Dr. Righetti's impression at this time was that the claimant "has either re-herniated a disk or really aggravated some scar tissue." (Id.)
Dr. Righetti ordered MRI, which revealed:
(Ex. A at 5; capitalization in original.) Dr. Righetti testified the finding represented a "new disk" problem. (Righetti Dep. at 18-19.)
¶10 Dr. Righetti was asked his opinion concerning the cause of the new, January 1997 finding. He answered:
(Righetti Dep. at 18.) He testified that the latest finding represented a discrete event. (Id. at 19.) He recommended addition surgery involving further excision of the disk at the L5-S1 level and fusion at the same level. (Id. at 20.)
¶11 During Dr. Righetti's deposition, Liberty's counsel probed the doctor further about the cause of claimant's latest disk herniation. He asked whether the claimant's condition was an acute event or brought on by days of lifting as described by the claimant. Dr. Righetti responded:
(Righetti Dep. at 21.)
¶12 Based on the recurrence of his back condition, claimant filed an occupational disease claim on January 2, 1997. (Stoltz Dep. Ex. 1.) In the claim he stated that he suffered a back injury while "Packing planks & steel at Stoltze Lumber mill. Too much lifting and bending." (Id.) He listed a date of injury of November 12, 1996. (Id.)
¶13 Liberty contested the claim and the Department designated Dr. Randale C. Sechrest to evaluate the claim. Dr. Sechrest performed his examination on January 8, 1998 and reported to the Department:
(Ex. B at 2; Sechrest Dep. Ex. 1 at 2.)
¶14 In his deposition, Dr. Sechrest provided his opinions regarding the causation of the claimant's condition.
(Id. at 15-16.) Dr. Sechrest did state during deposition that he would defer to claimant's treating physician, Dr. Righetti, regarding the claimant's condition and cause. (Sechrest Dep. at 11.)
¶15 During the proceeding below, Liberty argued, as it does on appeal, that the evidence demonstrates that claimant suffered a work-related injury, not an occupational disease. The hearing examiner was unpersuaded by the argument and found that claimant suffered from an occupational disease since it was work related and did not arise from a single, identifiable event during one work day. Liberty appeals.
¶16 Section 39-72-612(2), MCA (1987), provides the standard of review applicable to this appeal. It provides in relevant part:
Under the clearly erroneous standard of subparagraph (e), the hearing examiner's findings of fact must be overturned on judicial review where they are ". . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." State Compensation Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97, 102, 827 P.2d 85 (1992) (quoting section 2-4-704(2)(a)(v), MCA). The Court will not reweigh the evidence, Nelson v. EBI Orion Group, 252 Mont. 286, 289, 829 P.2d 1 (1992), however, the Court is in as good of position as the hearing examiner to review medical opinions provided by way of depositions and will therefore review them de novo. See Stangler v. Anderson Meyers Drilling Co., 229 Mont. 251, 255, 746 P.2d 99, 101 (1987). Conclusions of law, must be examined to determine if they are correct. Steer, Inc. v. Department of Revenue, 245 Mont. 470, 474-75, 803 P.2d 601 (1990).
¶17 Liberty does not dispute that claimant's latest aggravation is work-related, rather it urges that it constituted an industrial accident. It supports its argument with Dr. Righetti's opinion that the latest herniation occurred as a result of "one event" and with selected portions of claimant's depositions which it construes as indicating the condition arose in a single, identifiable event.
¶18 The Workers' Compensation Act defines injury at section 39-71-119(2), MCA, (1995):
¶19 The Occupational Disease Act defines an occupational disease at section 39-72-102(10), MCA, 1995.
¶20 Neither Dr. Righetti, claimant, nor anyone else identified any traumatic event or strain occurring at an "identifiable time and place" during any single shift of work. At best, claimant was able to say that his pain began on one day during the Stoltze Lumber project. Liberty's attorney questioned claimant at length on this point (Stoltz Dep. at 20) and has tried to make it appear that there was a single, identifiable event satisfying the injury definition. A complete reading of claimant's testimony, however, shows that while there may have been a specific day on which claimant began experiencing pain, it was not associated with a specific event or incident and that claimant's condition worsened on the ensuing days.
(Stoltz Dep. at 20.)
(Id. at 22.) And during the hearing, claimant testified:
(Tr. at 10.)
¶21 While Dr. Righetti was of the opinion that the new herniation occurred as a single event, his testimony is not conclusive and the evidence must be viewed as a whole. See Plainbull v. Transamerica, 264 Mont. 120, 126, 870 P.2d 76, 80 (1994). In Plainbull the Court addressed the manner of proof in an injury case, saying as follows:
Id. The same rule applies where a claimant pursues occupational disease benefits.
¶22 If injured, a claimant is required to report the injury to his employer, § 39-71-601, MCA. In this case how could he report an injury if he was unaware of any single incident or strain, only that his back began hurting and over ensuing days got worse to the point that he was unable to work? While Dr. Righetti thought a single event was the cause, he could not identify such event and his testimony did not exclude the possibility claimant's activities over two or more days cumulatively caused his condition. Moreover, Dr. Righetti's testimony that claimant's condition gradually deteriorated over a six week period following his lifting on the Stoltze Lumber project (Righetti Dep. 21:23-25; 22:1-18) gives credence to claimant's testimony that he could not identify a single event or strain as giving rise to his condition:
There is ample evidence to support a finding that claimant's latest work-related back condition is properly cognizable as an occupational disease rather than an injury.
¶23 1. The hearing officer's determination that claimant suffers from an occupational disease is supported by substantial evidence. The decision below is affirmed.
¶24 2. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶25 3. Any party to this dispute may have 20 days in which to request an amendment or reconsideration from this Decision on Appeal.
DATED in Helena, Montana, this 9th day of November, 1999.
c: Mr. Larry W. Jones
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