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Ankeny v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 18, 1993

HARLEY T. ANKENY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BLACK MAGIC MOBILE WASH Employer.

          FINDINGS OF FACT, CONCLUSION OF LAW AND JUDGMENT

          Mike McCarter JUDGE.

         The trial in this matter was held on Wednesday, October 13, 1993. Respondent, State Compensation Insurance Fund, was represented by Charles G. Adams, who personally appeared. Pursuant to a written stipulation executed by the parties, the petitioner and his counsel, Philip M. Kleinsmith, participated by telephone. The petitioner and William Belston testified. Depositions of the petitioner and Dr. Robert J. Foster were received and considered by the Court. Exhibit Nos. 1 and 2 were admitted into evidence by stipulation. Pursuant to a bench order, Exhibit Nos. 3 and 4, which are medical reports of two neurologists were received subsequent to trial and admitted without objection by respondent. Having considered the pretrial order, the testimony presented at trial and through depositions, the demeanor of petitioner and William Belston, and the exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. The petitioner suffered an industrial injury on February 1, 1989, while employed by Black Magic Mobile Wash in Kalispell, Montana. The injury occurred at a Plum Creek sawmill.

         2. At the time of the injury Black Magic was insured by the State Compensation Insurance Fund, which accepted liability for the petitioner's claim.

         3. The written claim signed by petitioner a week after his injury indicates that "he sliped [sic] and fell and in trying to break his fall injured his wrist." He made a similar report to his employer, telling the employer that he had fallen while on top of the dryer and had caught himself, injuring his wrist. He described his fall as occurring on top of the dryer, not as falling off the dryer. He gave no indication that he hurt anything other than his wrist.

         4. The petitioner sought treatment of his wrist injury on February 6, 1989 with Dr. George W. Ingham.

         The doctor's report of that visit confirms an injury to the petitioner's left wrist and a resulting ganglion on the wrist.

         5.The petitioner has since undergone several surgeries for ganglia on his wrist.

         6. Petitioner is presently seeking a determination that "he is entitled to evaluation and treatment for shoulder pain and dizziness as a result of his February 1, 1989, industrial injury." (Pretrial Order E.) Specifically, he demands that the State Fund authorize and pay for a neurological examination. The State Fund has refused the request on the ground that petitioner's shoulder symptoms and dizziness are not related to his February 1, 1989 industrial injury.

         7. Petitioner's request is based on a recommendation of Dr. Robert J. Foster, an orthopedic surgeon practicing in Colorado Springs, Colorado, where petitioner presently resides.

         8. Dr. Foster first examined the petitioner on July 10, 1992, at which time petitioner was complaining of pain in his left shoulder and swelling in his left wrist. In subsequent visits petitioner also reported dizziness, headaches, wrist pain and numbness of the left wrist or hand. Petitioner also testified that he reported his neck "shaking", but the doctor could not recall petitioner ever reporting that symptom.

         9. Dr. Foster recommended a neurological examination to evaluate the petitioner's reported dizziness, the possibility that petitioner may have suffered a head injury, and possible carpal tunnel syndrome. Petitioner's complaints of left shoulder pain were not a basis for the recommended referral. (Foster Dep. 10:21-25; 11:1-5.) Dr. Foster attributed those complaints to muscle strain.

         10. Dr. Foster related petitioner's complaints of shoulder pain, dizziness, and headaches to his February 1, 1989 industrial accident. He did so, however, based on petitioner reporting that he had fallen from a ...


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