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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA 1996 MTWCC 48
JOE YARBOROUGH Petitioner vs. MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent/Insurer for CITY OF BILLINGS Employer.
Summary: 40 year old firefighter sustained injuries at work during August and October 1987. The August injury involved a lightning strike near him, which knocked him unconscious, but did not cause permanent physical injury. The October incident involved a fireball emerging from a burning residence knocking claimant over, giving him singes and relatively minor burns, leading to no permanent restrictions. Claimant, however, testified he "lost his nerve" to do firefighting work after the October incident, though he had no physical problems. Diagnosed with post-traumatic stress disorder, a mental condition, claimant seeks medical and permanent partial wage loss benefits. Held: While
finding claimant entirely credible, the Court held as a matter of law
that claimant's psychological condition is not a compensable injury
within the Workers' Compensation Act as amended in 1987. Unlike earlier
cases (O'Neil v. Industrial Accident Board, 107 Mont. 176, 81 P.2d 688
(1938) and Schumacher v. Empire Steel Manufacturing, 175 Mont. 411,
574 P.2d 987 (1977)), there is no evidence here that claimant's mental
condition (PTSD) was caused by physical injuries he suffered on the
job. The injuries were resolved in a short time and were inconsequential.
Where the evidence demonstrates that it was mental shock or mental fright
that gave rise to claimant's disability, his allegedly disabling condition
is one "arising from....emotional or mental stress" and is
excluded from the definition of compensable injury within section 39-71-119(3),
MCA (1987). (Note: this decision was affirmed in Yarborough v. Montana
Municipal Insurance Authority, 282 Mont. 475, 938 P.2d 679 (1997).)
Trial in this matter was held on May 7, 1996, in Billings, Montana. Petitioner, Joe Yarborough (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, Montana Municipal Insurance Authority (MMIA), was represented by Mr. Oliver H. Goe. Exhibits 1 through 8, 10 and 11 were admitted without objection. Exhibits 9 and 13 were admitted over Mr. Goe's objection. Exhibit 12 was admitted over Mr. Sheehy's objection. Exhibit 14 was refused. Additionally, the depositions of claimant, Dr. Thomas Van Dyke, and Dr. Fred Olson were submitted for the Court's consideration. Claimant, Thomas Van Dyke, and Joseph McElhinny testified at trial. Issues presented: Claimant contends he suffers from post traumatic stress disorder (PTSD) as the result of two industrial injuries he suffered while working as a firefighter for the City of Billings. He seeks medical benefits and permanent partial wage loss benefits. He also contends the respondent has been unreasonable in handling his claim and therefore asks for attorney fees, costs, and a penalty.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
1. Claimant is 40 years old. He is a high school graduate and needs 9-12 credits to complete an associate degree in Fire Science. (An associate degree is based on completion of a two-year program.) He is divorced and has two children. He presently lives in Basin, Wyoming. 2. From 1977 to 1981 claimant served in the Air Force. While stationed in England, he was trained in both crash and structural fire fighting techniques. After finishing his tour in England, claimant returned to the United States and was stationed in Missouri where he received further training in automobile extrication. 3. The Court found claimant's testimony fully credible. In the findings that follow, his testimony is adopted as true. 4. Claimant was honorably discharged from the Air Force in 1981. Over the next two years he worked assembling circuit boards, making pizzas, as a rough-neck on an oil rig, and as a ranch hand. 5. In June 1983 claimant was hired as a firefighter for the city of Billings. In addition to fighting fires, his job duties included business and structure inspections, first aid calls, and public education. 6. Claimant's work schedule as a firefighter was 24 hours on followed by 48 hours off. From 1985 to 1987 he was rotated between stations, filling in for other firefighters. He was permanently assigned to Station 5 in the summer of 1987. (Yarborough Dep. at 33-34.) 7. Claimant enjoyed his work as a firefighter. He liked the excitement of fighting the fires, his public education duties, and the work schedule. His schedule allowed him to spend time with his children and work a second job delivering pizzas. 8. However other aspects of the jobs were distasteful. He disliked first aid calls involving serious car accidents and performing CPR on persons who could not be resuscitated. He said that the job was also boring at times. 9. On August 14, 1987, claimant was at work and saw an approaching thunderstorm. He ran outside to close his car window and apparently was either hit by or very near a lightning strike. Claimant testified that he saw a flash, heard a clap of thunder, and the next thing he knew he was being worked on by some of the other firefighters. He was taken to the hospital and kept overnight for observation. He was released the following day and advised he could return to work on August 17, 1987. (Ex. 5 at 3-5.) After the lightning incident, claimant took a previously planned vacation, visiting his family in Florida. (Yarborough Dep. at 40.) He returned to work after his vacation. He presented no evidence of any permanent physical injury caused by the lightning incident. 10. On October 22, 1987, claimant responded to a fire at a residential home in Billings. He dragged a hose to the back of the house and began fighting the fire. He first sprayed a wooden fence to the rear. Another firefighter, Don Regnier, came to assist him and the two of them prepared to spray the house. Standing about 10 to 15 feet away, claimant adjusted the hose to a fog pattern to protect himself and Regnier from the heat as they approached the house. A stream of water hit a soffit, knocking it down. He heard a "whoosh" and was hit with what he described as a "fireball." He was knocked backwards into the fence losing both the hose and his helmet. He crawled over to Don Regnier and they then retreated to the front of the house. (Yarborough Dep. at 45-48; Trial Test.) 11. Claimant was taken to Saint Vincent Hospital where he was examined by Dr. Evan Buchan:
(Ex. 5 at 9.) 12. Claimant returned to the hospital the next day and his wounds were again cleaned and dressed. Claimant testified in his deposition that he returned to the hospital daily for a week to have his wounds cleaned and dressed. (Yarborough Dep. at 56.) The hospital notes for one such visit are contained in the record. (Ex. 5 at 11.) He thereafter required no more treatment for his burns. 13. Claimant suffered no permanent physical restrictions. He was off work approximately two and a half weeks. He then returned to work without restriction. (Yarborough Dep. at 56.) 14. Claimant testified that he was able to perform all physical aspects of the firefighting job following the October 22 injury, however, he had "lost his nerve" to do the job. In his deposition he described the problems he had following the injury: Q. [By respondent's counsel.] What type of problems, if any, did you have after that . . .? (Yarborough Dep. at 59-61.)
(Id. at 64-65.) Claimant testified at trial that he felt "shaking scared, sick scared" during the propane leak call. He had never felt that way prior to the October 22 explosion. 15. Claimant spoke with the Billings Fire Chief about being reassigned to a fire prevention position that would not involve fighting fires but was told that no position was available. (Id. at 67.) 16. Claimant also spoke with Carlene Dubeau, personnel director for the City of Billings about working in a temporary position outside the fire department. (Id. at 67-68.) 17. Claimant read an article in the fire station about PTSD in emergency personnel and began to suspect he was suffering from it. (Id. at 70.) He suffered from many of the symptoms described in the article, including nightmares, diarrhea, feelings of doom, and a sick feeling in his stomach. He informed his battalion chief of his suspicions and was referred to Kathleen Campbell, a counselor providing services for the city. According to claimant, the counselor's recommendation was that he take Valium or find another job. (Id. at 71-73.) 18. Claimant testified that he felt he was a hazard to himself and others and resigned his position with the Billings Fire Department in December 1987. His last day of work was December 24, 1987. He requested a disability retirement, however, his physician was unwilling to sign a document stating claimant was unable to perform his job. (Id. at 74-75.) At that point, the treating physician had not treated claimant for PTSD. 19. After his resignation, claimant withdrew his vested retirement savings and moved to Basin, Wyoming. Claimant testified he moved to Basin to be closer to his children (his wife and children were there), avoid fire engines, and take advantage of the town's lower cost-of-living. 20. Since 1987 claimant has worked at a number of jobs. He first worked at the site of a forest fire in the Big Horn Basin, providing first aid to the firefighters. He did no firefighting. Later he provided food service for firefighters at a fire above Buffalo, Wyoming. He was employed by the United States Department of Agriculture and paid $7 to $8 per hour. (Ex. 13.) 21. Claimant joined the Basin, Wyoming Volunteer Fire Department in 1988. In his deposition he related his experiences with the fire department in Basin:
(Yarborough Dep. at 108-109.) 22. Claimant's other jobs since December 1987 include temporary fuel truck driver for $6.00 or $7.00 per hour; produce worker for $5.00 an hour; laborer for a drilling company; cook and assistant manager at a pizza store in Idaho for $5.25 to $7.50 per hour; laborer at a game processing operation; roofer; manager and bartender at a ski area for $5.00 to $6.00 per hour; laborer for a construction company; counselor at a group home for $6.50 to 7.50 per hour; and laborer for a paving company. He has also been self-employed in the pizza business on two occasions - once in an unsuccessful partnership business called Zeppes Pizza, and more recently as the sole proprietor of Jo Poppa's Pizza, an ongoing enterprise which appears to be growing and prospering. (Ex. 13.) 23. Claimant supplied the Court with a compilation of his earnings since 1987. He has earned between $4,882 and $14,560 per year. (Id.) 24. Claimant was earning $1780 per month or $21,360 per year at the time he ceased working for the City of Billings.
25. Claimant was treated for depression by Dr. Thomas W. Van Dyk in December 1983. Claimant was already taking anti-depressant medication when first seen by Dr. Van Dyk; however, he does not remember how he received the medication or whether it was prescribed by a physician. 26. Dr. Van Dyk is a board certified psychiatrist. When he first saw claimant, the claimant was confused, depressed, and upset with his job. Dr. Van Dyk prescribed a different anti-depressant. 27. Dr. Van Dyk thereafter saw claimant on May 3, 1984 and February 20, 1985. The purpose of these visits was to monitor claimant's medication. The claimant expressed no job dissatisfaction during either visit. 28. In June 1986 claimant was hospitalized in the Billings Deaconess Hospital after an argument with his wife. Dr. Van Dyk's intake summary provides the following history:
(Ex. 1 at 53.) Dr. Van Dyk's impression of claimant's condition at that time was:
(Id. at 54.) 29. Claimant testified at trial and in his deposition that he doesn't specifically remember telling Dr. Van Dyk that he hated his job, but he does not doubt he did so. He testified that, at that time, he hated everything about his life. (Yarborough Dep. at 93-94, Trial Test.) 30. Claimant was discharged from the hospital after two days. Dr. Van Dyk's diagnosis at that time was "manic depressive illness, depressed type. Chemical dependency." (Ex.1 at 59.) 31. After his release from Billings Deaconess Hospital and at the suggestion of Dr. Van Dyk, claimant underwent a thirty-day substance abuse treatment program at the Rimrock Foundation. (Yarborough Dep. at 95-96.) While at Rimrock, claimant completed a Clinical Analysis Questionnaire and underwent a Minnesota Multiphasic Personality Inventory which were interpreted as follows:
(Ex. 11 at 3.) 32. While at Rimrock, claimant was examined by Dr. Ely, a psychiatrist. Dr. Ely wrote that claimant had "a lot of problems with impulsive anger, which is superimposed on an ongoing chronic depressive disorder, probably best categorized as an atypical depressive disorder . . . I am recommending that he be started on Desipramine 50 mg." (Id. at 7.) 33. After his release from Rimrock, claimant continued to see Dr. Van Dyk. He saw Dr. Van Dyk on July 30, 1986, August 27, 1986, December 31, 1986, January 21, 1987, February 4, 1987, and October 21, 1987. Dr. Van Dyk testified, and his records confirm, that claimant's condition waxed and waned during this time. Dr. Van Dyk's office notes for these visits indicate claimant's complaints about his job were not as extreme as when he was in the hospital. (Ex. 1 at 57-58, 61-62.) 34. I find that while claimant suffered depression between 1983 and October 21, 1987, and disliked parts of his job, he was still able to perform his job duties.
35. As stated in Finding No. 17, Claimant was first seen by Kathleen Campbell following his injury. 36. Claimant then saw Dr. Van Dyk on December 11, 1987. He told Dr. Van Dyk about the October 22 incident and complained of a variety of ailments -- diarrhea, headaches, upset stomach, anxiety, nervousness, flashbacks, and nightmares. Dr. Van Dyk diagnosed PTSD. At his deposition, Dr. Van Dyk provided the following explanation for his diagnosis:
(Van Dyk Dep. at 57-58.) 37. During the December 11, 1987 appointment, claimant asked Dr. Van Dyk to sign a retirement disability form. By this time claimant had determined he could no longer work as a firefighter and was seeking another way to support his family (Yarborough Dep. at 73-80.) Dr. Van Dyk refused to sign the document. He testified at trial and in his deposition that at that time he felt claimant's condition was treatable; he also was concerned with how claimant would support his family. (Van Dyk Dep. at 60-61, 65; Trial Test.) 38. Dr. Van Dyk saw claimant again on December 15, 1987. Claimant told him he was not returning to work no matter what. Dr. Van Dyk testified that claimant complained of shakes, anxiety attacks, diarrhea, nightmares, headaches, and chest pain. Claimant also reported having vomited at a movie and of being restless and grouchy. (Ex. 1 at 66-67;Trial Test.) 39. Claimant saw Dr. Van Dyk again on December 28, 1987. By that time claimant had moved to Basin, Wyoming. Dr. Van Dyk testified that claimant appeared more relaxed during this visit, was sleeping better, and, while he still had daily memories of the fireball, he was no longer having nightmares. Thereafter, beyond prescribing refills for anti-depressants for claimant, Dr. Van Dyk had no contact with claimant until December 12, 1995. 40. While living in Wyoming and, for a short time in Idaho, claimant received treatment on a sporadic basis from several providers. He had at least three stays at the Veterans Hospital in 1992. The records provided to the Court for claimant's treatment during this time period are limited. Claimant testified that his treatment during this time was primarily to address problems arising from his deteriorating marriage and resulting depression. He testified that he was also treated for PTSD. (Yarborough Dep. at 149.)
41. On December 12, 1995, Dr. Van Dyke reexamined claimant. The doctor felt that claimant's condition was improved but not fully resolved. 42. At trial, Dr. Van Dyk gave the following opinions:
43. At the insurer's request, claimant was examined by Dr. Joseph McElhinny, Psy. D, a neuropsychologist. Dr. McElhinny met with claimant on September 25, 1995, for approximately four to four and a half hours. In addition to his examination, Dr. McElhinny reviewed all available records and administered two psychological tests -- the Millon Clinical Multiaxial Inventory (MCMI-II) and the Minnesota Multiphasic Personality Inventory (MMPI). The psychological tests revealed claimant to be doing well at that time:
(Ex. 3 at 8.) Dr. McElhinny felt that, from a psychological standpoint, claimant was probably never a good candidate to be a firefighter. He also felt that claimant's inability to function as a firefighter after the October 22, 1987 incident was "primarily the result of his pre-existing personality style and the non-work related psychosocial stressors he was experiencing at the time." In his report he confirms that claimant did in fact suffer from PTSD and that the "work related accidents no doubt exacerbated his psychologic problems and it is difficult to determine at this late date when the post-accident trauma was actually resolved." (Id. at 9.) He estimated that 80% of claimant's difficulties after the accident were due to long-standing issues and 20% were due to exacerbation directly related to the incident. (Id.) 44. At trial Dr. McElhinny gave the following opinions:
45. Dr. McElhinny further testified that he was unable to state to a reasonable degree of medical certainty what claimant's condition was prior to seeing him in 1995. He testified that if claimant suffered from PTSD, it was of a temporary nature and should have resolved in a short while. He was unable to say when this exacerbation would have ended. Finally, Dr. McElhinny testified that claimant could return to work as a firefighter, but if he did so would be at great risk for recurrence of his depression and at some risk of recurrence of his PTSD. He based his opinion that the PTSD could recur on claimant's reports of "freezing up" when confronted with hazardous situations at work. 46. Dr. Fred Olson is an internist who reviewed claimant's medical records at the request of the insurer. He was asked to evaluate the risk to claimant's ability to perform firefighting duties in light of a heart condition, paroxysmal atrial fibrillation (PAT). The condition is briefly mentioned by Dr. Van Dyk in a report dated June 14, 1986 - "he also has a history of atrial fibrillation which was probably from alcohol." Dr. Olson gave the opinion that claimant did not suffer from PAT at the time of his evaluation and should not experience further trouble with the condition should he return to duty as a firefighter. He, like Dr. Van Dyk, attributed the condition to excessive alcohol consumption and felt it should not return unless claimant again began to drink heavily. Claimant testified in his deposition that he had stopped drinking three years ago. (Yarborough Dep. at 164.) 47. Claimant testified that he is doing much better now than in the first few years after the accident. He still believes he cannot perform as a firefighter. 48. After considering the medical/psychological testimony and records, along with claimant's testimony, I find that the shock of the October 22, 1987 incident aggravated claimant's preexisting depression and caused PTSD, and that his resulting psychological condition includes an aversion to dangerous firefighting situations which permanently precludes his return to work as a firefighter. CONCLUSIONS OF LAW 1. Claimant's injuries occurred in August and October 1987. The statutes in effect on the date of injury apply in determining the benefits due. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380, 382 (1986). Therefore, the 1987 version of the Worker's Compensation Act applies in this case. 2. Claimant contends he is entitled to medical benefits and permanent partial wage loss benefits on account of his PTSD. The claimant has the burden of proving that his PTSD is compensable under the Workers' Compensation Act. Gerlach v. Champion International, 254 Mont. 137, 836 P.2d 35 (1992). 3. The claimant in this case was fully credible. Nonetheless, I conclude that as a matter of law claimant's psychological condition is not a compensable injury within the meaning of the Montana Workers' Compensation Act.
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