Injury and Accident: Aggravation: Temporary Aggravations

Lanes v. Montana State Fund, 2008 MT 306, 346 Mont. 10, 192 P.3d 1145 The aggravation provision is a reflection of the long-standing rule that employers take their workers as they find them and that a traumatic event or unusual strain which lights up, accelerates, or aggravates an underlying condition is compensable. However, case law has established that an aggravation must be “significant” before it will be considered the last injurious exposure. Where Petitioner and his treating physician both testified that his job duties as a minister only temporarily aggravated his pre-existing knee condition, this does not constitute the last injurious exposure.
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 Chaney v. U.S. Fidelity & Guar., 276 Mont. 513, 917 P.2d 912 . As noted in prior cases, e.g., (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., 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.

Clapham v. Twin City [10/16/12] 2012 MTWCC 34 Where Petitioner’s treating physician opined that his condition was a temporary aggravation of his pre-existing condition, another medical expert opined that Petitioner’s job duties did not aggravate his back condition, and Petitioner acknowledged that he had never been pain free since a previous industrial accident and that he suffers frequent, temporary exacerbations of his condition with innocuous activity, the Court concluded that Petitioner’s work activities only caused a temporary aggravation of his pre-existing condition and that liability for any medical treatment would rest with the insurer liable for Petitioner’s previous industrial injury.

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.
Lanes v. Montana State Fund [09/10/07] 2007 MTWCC 39 Petitioner testified that the tasks he performed as a minister would aggravate his right knee, but that it would return to his previous state after he rested it. His treating physician opined that walking on various surfaces aggravated Petitioner’s knee condition, but that the aggravation was only temporary additional pain and not a permanent aggravation of a preexisting condition. For an aggravation or contribution to rise to the level of “significant,” it must be more than merely temporary or transient.
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)).
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).
Bergman v. Valor [6/03/02] 2002 MTWCC 30 Where a subsequent injury does not increase the claimant's preexisting impairment or his disability, he is not entitled to an impairment award.
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), when a subsequent injury has arguably aggravated a preexisting condition, the second insurer avoids liability for the aggravated 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.
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.)
Liberty Northwest Ins. Corp. v. Bevis [04/17/95] 1995 MTWCC 28 Where treating physician testified convincingly that subsequent incident for which second insurer was at risk caused only a temporary aggravation of claimant’s back condition, the insurer with liability for that back condition must indemnify the second insurer for benefits that insurer paid under reservation of rights.