Injury and Accident: Aggravation: Generally

MONTANA SUPREME COURT DECISIONS
Paterson v. Montana Contractor Compensation Fund, 1999 MT 158 Substantial evidence supported WCC's determination that construction worker seeking TTD had reached maximum medical healing prior to non-work related aggravation of back condition, relieving the insurer of liability for compensation or medical benefits caused by the nonwork-related aggravation pursuant to section 39-71-407(5), MCA (1993).
Paterson v. Montana Contractor Compensation Fund, 1999 MT 158 Substantial evidence supported WCC's determination that non-work related injury aggravating back condition was a permanent aggravation where opinion of single physician testifying at trial was not seriously disputed at the time of trial.
Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5 Supreme Court affirmed WCC finding that claimant's 1987 injury was not material or significant on a permanent basis and did not increase his disability over what existed prior to the injury. Claimant had suffered numerous injuries, some work-related, several of which he had already settled. He also suffered from severe anxiety and depression, which had caused him to stop working rotating shifts, a change which eventually led to the termination of his employment. Other evidence supporting the WCC finding included evidence that claimant was angry at the former employer, that he exaggerated his condition, and that he applied for a new job, and a recent promotion, on the basis of stability in his condition.
Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997) Supreme Court affirmed WCC determination that cause of claimant's current back-related disability was 1984 injury and not occupational disease insurer claimed arose after claimant returned to work. Claimant met his burden of establishing a clear connection between his current condition and the 1984 injury through physician's testimony. Insurer did not prove causation through occupational disease where doctor could not determine with any precision what effect claimant's resumed work had on his condition, testified claimant's low back condition would have deteriorated even if he had not resumed his UPS duties, and testified that post-injury work was not a substantial cause of the degeneration.
Briney v. Pacific Employers Insurance Co., 283 Mont. 346, 942 P.2d 81 (1997) Once the claimant has proven a work-related injury and produced evidence that the injury is a cause of a present disability, an insurer who alleges that subsequent events are the actual cause of the claimant’s current disability has the burden of proving that allegation, which is in the nature of an affirmative defense, by a preponderance of the evidence.
Briney v. Pacific Employers Insurance Co., 283 Mont. 346, 942 P.2d 81 (1997) Where physician testified that the most significant injury contributing to claimant’s current disability was the original injury for which the insurer was liable, WCC erred in concluding that insurer was relieved of liability due to subsequent exacerbations following MMI. Even though intervertebral disk had returned to its normal anatomical configuration, the deterioration of claimant’s condition and his present physical impairment were traced to the injury for which the insurer was liable.
 
WORKERS' COMPENSATION COURT DECISIONS
Fleming v. Montana Schools Group Ins. Authority [06/04/10] 2010 MTWCC 13 Where Petitioner’s treating physician opined that she had not reached pre-exacerbation baseline from the industrial accident, two IME panel physicians opined that at the time of the panel it was impossible to determine whether Petitioner’s aggravation would be temporary or permanent, one of the IME physicians clarified in his deposition that if no surgical solution existed for Petitioner’s condition eleven months after her injury, Petitioner’s condition would most likely be permanent, and an IME physician’s opinion that Petitioner’s injury was a temporary aggravation was internally inconsistent, the Court concluded that Petitioner suffered a permanent aggravation of her preexisting low-back condition.
Liberty v. Valor Re: Handel [01/30/08] 2008 MTWCC 7 Where a disk herniation was revealed on a 2005 MRI and the claimant had not been found to be at MMI from a March 2002 industrial accident, any occupational disease which was alleged to have occurred subsequent to March 2002 but prior to the claimant’s reaching MMI on August 1, 2006, is not compensable as a separate event. Therefore, the insurer at risk in March 2002 remains liable for the medical treatment and other benefits due the claimant.
Liberty v. Valor Re: Handel [01/30/08] 2008 MTWCC 7 Where the Court concluded that the claimant had not reached MMI from a previous industrial injury at the time he alleged his subsequent work activities aggravated his cervical condition, the insurer at risk at the time of the initial industrial accident is not relieved of liability.
Porter v. Liberty [10/19/07] 2007 MTWCC 42 Where both Petitioner and his treating chiropractor testified that the chiropractor never adjusted Petitioner’s neck, and where a neurosurgeon examined Petitioner and opined that his cervical problems were due to progressive degeneration and unrelated to Petitioner’s chiropractic treatment, Petitioner has failed to prove that his cervical condition was aggravated by his chiropractic treatment.
Johnson v. MHA Workers' Comp Trust [05/22/07] 2007 MTWCC 17 Taking the evidence as a whole – the objective findings that an injury occurred, the fact that Petitioner’s type of injury can be caused by lifting, the absence of any symptoms before the date of injury, and the immediate onset of symptoms at the time of the incident – the Court concludes it is more probable than not that Petitioner’s October 4, 2005, injury occurred from activities arising out of and in the course of her employment at Community Medical Center.
Hunter v. Hartford Ins. Co., 2007 MTWCC 13 [03/11/07] Where a subsequent knee injury arguably aggravated Petitioner’s preexisting knee condition, Respondent is liable for Petitioner’s knee injury because it failed to meet its burden of proving (1) Petitioner had not reached maximum medical healing with respect to his 1983 accident or (2) Petitioner’s 1998 accident did not permanently aggravate the underlying condition.
Harrison v. Liberty NW Ins. Corp. and Stillwater Mining Co. [05/12/06] 2006 MTWCC 22 The case law is well established regarding a temporary aggravation of a preexisting occupationally-caused condition after MMI. See MCCF v. Liberty Northwest Ins. Corp., 2003 MTWCC 10, ¶35 (citing Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997)).
Lockwood v. LIberty NW Ins. [3/2/04] 2004 MTWCC 21 Where the claimant reached MMI following a work-related patellar dislocation, and thereafter suffered a material, permanent aggravation of her patellar condition in a nonwork- related injury, the insurer for the work-related injury is relieved of further liability under section 39-71-407(5), MCA (1999).
Greene v. UEF [4/9/03] 2003 MTWCC 27 An insurer is responsible for treatment of a preexisting condition where the industrial accident makes a preexisting condition symptomatic, however, where the most credible medical evidence shows that the condition did not become symptomatic until six months after the industrial accident and became symptomatic immediately after a non-industrial accident, the insurer is not liable for the condition or for disability arising from the condition.
Montana Contractor Compensation Fund v. Liberty Northwest Ins. Corp [2/19/03] 2003 MTWCC 10 Liability, as between insurers, has been the grist of a number of decisions over the past few years. The rules are straightforward. If a claimant has reached MMI with respect to a first industrial injury and he thereafter suffers a work-related, permanent, and material aggravation of a medical condition, then the insurer at risk at the time of the aggravation is liable for compensation and medical benefits for the condition. If, on the other hand, the subsequent aggravation is temporary or immaterial, and the disabling condition results from a natural progression set in motion by a previous workers' compensation injury, then the insurer for the previous injury is liable for compensation and medical benefits. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).
Stephenson v. CIGNA [3/29/01] 2001 MTWCC 12 Where an industrial injury lights up or makes symptomatic a preexisting condition, the insurer is liable for the condition unless some subsequent event or condition intervenes.
Stacks v. Travelers/State Fund [3/1/01] 2001 MTWCC 9 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), 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. The second insurer carried its burden of proving that claimant's back condition was only temporarily aggravated, but failed to prove that the neck condition was only temporarily aggravated.
Weatherwax v. State Fund [3/22/00] 2000 MTWCC 15 Claimant proved aggravation to preexisting back condition with evidence his condition materially worsened after single day's work lifting and moving cabinets. What constitutes an aggravation of a preexisting condition is defined by case law. It has long been the law in Montana that employers take their workers as they find them, with all their underlying ailments, and that a traumatic event or unusual strain which lights up, accelerates, or aggravates an underlying condition is compensable. See, Birnie v. U.S. Gypsum Co., 134 Mont. 39, 45, 328 P.2d 133, 136 (1958); Houts v. Kare-Mor, 257 Mont. 65, 68, 847 P.2d 701, 703 (1992).
Alocco v. CIGNA Insurance [6/2/99] 1999 MTWCC 37 On the standard of more probably than not, i.e. 51%, the Court is persuaded that claimant's 1997 herniated disk was caused by a compensable 1995 industrial injury, making the insurer liable for medical treatment and surgery relating to the hernation. Factors considered by the Court included claimant's credible testimony that his pain following the 1995 injury continued, notes in a medical record that he tried to "baby" his pain following the initial incident, and chiropractic records suggesting a continuing condition. On the more likely than not standard, the Court found a rototilling incident emphasized by the insurer was not a new injury, as claimant's radicular symptoms had already been present, and that the exacerbated symptoms following rototilling represented a progression and worsening of existing symptoms, leaving the insurer liable for subsequent medical treatment.
Paterson v. Montana Contractor Compensation Fund [6/22/98] 1998 MTWCC 55. Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund.]
Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5 Under Belton v. Carlson Transport, 202 Mont. 384, 658 P.2d 405 (1983), the insurer at the time of a second injury is at risk for the injury if the previous injury covered by another insurer has reached maximum healing, maximum recovery, or a medically stable condition; complete recovery from the previous injury is not necessary for the second insurer to be responsible. The burden of proof is on the insurer at the time of the second injury. A limitation not at issue in Belton, but clearly set forth therein, is that the second injury must be an aggravation of a pre-existing injury. If the new incident is an exacerbation, or temporary alteration in symptoms, but not an aggravation, or material or permanent alteration, the second insurer does not become liable for the condition following recovery from the exacerbation. If the claimant does not prove the latter incident caused a permanent detriment, the burden of proof does not shift to the second insurer. As noted in prior cases, e.g., Chaney v. U.S. Fidelity & Guar., 276 Mont. 513, 917 P.2d 912 (1996) and Walker v. United Parcel Service, 262 Mont. 450, 865 P.2d 1113 (1993), the claimant continues to bear the initial burden of establishing that he suffered a compensable injury from an industrial accident.
Kuntz v. Nationwide Mutual Fire Ins. Co. [11/19/96] 1996 MTWCC 72 A 47-year old mill worker failed to prove causal connection between 1987 injury and claimant's disability. Where claimant suffered at least eight back related injuries, and was not credible concerning the nature and extent of his pain and disability at various times in his history, the Court was not persuaded the 1987 incident caused any material, significant, or permanent aggravation to his pre-existing back condition. (Note: WCC affirmed by Supreme Court at Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5)
Burglund v. Liberty Mutual Fire Insurance Co. [8/29/96] 1996 MTWCC 60 UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Ostwald v. Plum Creek Manufacturing [12/19/95] 1995 MTWCC 107 Denial of claim under WCC was unreasonable where claimant’s report of pop in back, accompanied by burning pain and numbness, described an expected unusual strain, identifiable by time and place and by part of the body affected, and caused by a single event during a single work shift. Although claimant had an existing back condition, respondent is responsible for the aggravation of that condition.
Darling v. Kalispell Regional Hospital [12/04/95] 1995 MTWCC 101 Where claimant had not returned to pre-injury status before exacerbation of back condition during vacation, respondent is liable for permanent aggravation of her underlying condition.
Rooney v. Credit General Ins. [06/29/95] 1995 MTWCC 53 Although claimant has significant pre-existing back conditions, the insurer is liable for his current condition if his industrial injury lit up, aggravated or accelerated his back condition. A preponderance of the evidence establishes that the 1993 injury lit up and worsened claimant’s underlying spondylolisthesis and spinal stenosis. While claimant occasionally had low back pain prior to the accident, he never sought treatment for such pain, which is now worse and radiates into his legs.
Moore v. State Compensation Ins. Fund [04/17/95] 1995 MTWCC 29 Where insurer is unable to point to any specific injury occurring when claimant’s house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).
Pulliam v. Liberty Mutual Ins. Co. [12/29/94] 1994 MTWCC 117 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.