HARLEY T. ANKENY Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BLACK MAGIC MOBILE WASH Employer.
FINDINGS OF FACT, CONCLUSION OF LAW AND
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
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.
the time of the injury Black Magic was insured by the State
Compensation Insurance Fund, which accepted liability for 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.
petitioner sought treatment of his wrist injury on February
6, 1989 with Dr. George W. Ingham.
doctor's report of that visit confirms an injury to the
petitioner's left wrist and a resulting ganglion on the
petitioner has since undergone several surgeries for ganglia
on his wrist.
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.
Petitioner's request is based on a recommendation of Dr.
Robert J. Foster, an orthopedic surgeon practicing in
Colorado Springs, Colorado, where petitioner presently
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.
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.
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 ...