BRAND E. CAEKAERT Petitioner
STATE COMPENSATION INSURANCE FUND Respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on Monday, September 13, 1993,
in Billings, Montana. Petitioner, Brand. E. Caekaert, was
present and represented by Patrick G. Frank. Respondent,
State Compensation Insurance Fund by William J. Mattix. The
petitioner was the only witness at the hearing. Exhibit Nos.
1, 2, 3, 4, 13, 14, 15, 19, 26, 27, 28, 32 and 33 were
admitted by stipulation. Petitioner stipulated to foundation
for Exhibits 5 through 12, 16 through 18, 20 through 25, 29
through 31, 34 and 35 but objected to those exhibits on the
grounds that they were irrelevant and cumulative. Since all
exhibits had to be reviewed in order to determine their
relevance, the Court is admitting all of the exhibits.
However, Ex. No. 12 provided no relevant information; Ex.
Nos. 18, 22 to 24 did not provide any evidence directly
relevant to the issues in the case; and most of the remaining
exhibits were relevant only to whether petitioner is
permanently totally disabled on account of his back injuries.
The depositions of Brand E. Caekaert and Dr. Jeffrey N.
Hansen were filed with the Court and admitted into the
record. Having considered the pretrial order, the testimony
presented at trial and through the depositions, the demeanor
of Mr. Caekaert and the exhibits, the Court makes the
Petitioner is a 41 year old plumber who lives in Billings,
Montana. He began working as an apprentice plumber in
approximately 1974 and became a journeyman plumber in
approximately 1978. His employment as a plumber is summarized
9/8/75 to 6/15/79 Star Service, Inc.
6/22/79 to about 7/30/79 Combustion Engineering
7/31/79 to 9/14/79 Star Service, Inc.
2/7/80 to about 4/7/80 Phil Morrow Mechanical
5/4/83 to 10/21/83 Wagner Mechanical, Inc.
12/6/83 to 1/23/84 Ace Plumbing & Heating
4/18/84 to 9/10/86 Bingham Mechanical
1/21/88 to about 2/5/88 Frank Wilson Plumbing & Heating
6/27/88 to 9/15/88 Star Service, Inc.
During the early 1980's, petitioner also worked at
various times building dog houses and kennels and performing
power lawn raking.
Petitioner started a poultry business in late 1986 or early
1987. The business became operational in 1987. The operations
include raising, butchering, processing and selling chickens.
The business has operated continuously since 1987 and is
known as Brand's Poultry & Custom Processing
and also as Brand's Hatchery and Game Farm.
Petitioner began experiencing difficulties with his hands in
1982. His principal symptoms at that time were discoloration,
tingling and numbness of his hands.
early February 1988, the petitioner was diagnosed as
suffering bilateral carpal tunnel syndrome. Dr. S. Arthur
Frankel performed a carpal tunnel release on petitioner's
left hand on February 10, 1988 and on his right hand on March
the time of his carpal tunnel diagnosis, petitioner was
working for Frank Wilson Plumbing and Heating, which was
insured by the State Compensation Insurance Fund (State Fund)
under Plan III of the Montana Workers' Compensation Act.
November 14, 1988, petitioner filed a claim for compensation
on account of his carpal tunnel syndrome.
State Fund accepted liability for the claim under the Montana
Occupational Disease Act. It paid petitioner total disability
benefits at a rate of Two Hundred Ninety-nine Dollars ($299)
per week for periods of February 16, 1988 through May 1, 1988
and June 13, 1988 through June 26, 1988.
To Work and Back Injury
June 27, 1988 petitioner returned to work as a plumber for
Star Services, Inc.
July 15, 1988, while working for Star Services on a job at
St. Vincent Hospital in Billings, petitioner suffered a back
injury when the employee of another contractor drove a
forklift into the scaffolding on which petitioner was
working. This was petitioner's second work related back
injury. He suffered an earlier back injury on April 18, 1984
while working for Bingham Mechanical. He also re-injured his
back in 1987 in a non-work-related incident.
Petitioner was off work for a week or two immediately
following his 1988 back injury, then returned to work for
Star Service. After his return to work he was transferred to
a job site in Reedpoint, Montana, an hour and a half commute
Petitioner terminated his employment with Star Service on
September 15, 1988. He testified at trial that he quit
because the commute to Reedpoint hurt is back and because
"my hands would just start to go numb again. And I'd
start to drop the fittings, I couldn't hold on to things
very good." (Tr. at 23.)
Of Present Controversy
Petitioner is seeking a determination that he is entitled to
payment for additional carpal tunnel surgery performed on
December 11, 1992 (right arm) and February 12, 1993 (left
arm), and for 16 weeks of temporary total disability benefits
during his recuperation period. Respondent opposes
petitioner's request on two grounds. First, it contends
that petitioner is judicially estopped from pursuing his
present claim because of testimony and discovery answers he
gave in earlier judicial proceedings. In those proceedings
petitioner claimed that his July 15, 1988 back injury was
permanently totally disabling. Second, it contends that the
last injurious exposure doctrine bars the claim because
petitioner's work in his poultry business between 1988
and 1992 aggravated his carpal tunnel syndrome.
Testimony By Petitioner
July 18, 1988, petitioner filed a workers' compensation
claim on account of his July 15, 1988 back injury. He
thereafter filed a petition in the Workers' Compensation
Court claiming that he was permanently totally disabled or,
in the alternative, permanently partially disabled as a
result of either his 1985 or 1988 back injuries. (Ex. Nos. 9
Petitioner also filed a civil action for damages against the
worker who drove the forklift into the scaffolding and that
worker's employer. Brand E. Caekaert v. Don Moseley
and Empire Lathing & Plastering Co., Montana Thirteenth
Judicial Dist. Court, Yellowstone County, No.
answers to interrogatories put to him in the workers'
compensation proceeding, petitioner stated that his back
injuries had rendered him totally disabled, leaving him with
no earning capacity. He also claimed that but for
his back injury he would have been able to continue working
as a plumber. He stated that he left his employment with Star
Service because of his back injury, and that the back injury
precluded him from working at any of the jobs he was
qualified to perform. (Ex. No. 34.)
workers' compensation litigation was settled by separate
full and final compromise settlement agreements between
petitioner and each of the two insurers. (Ex. Nos. 5 through
answers to interrogatories put to him in his third party
action, petitioner asserted that his inability to return to
work as a plumber was the result of his July 15, 1988 back
injury and that his back injury permanently disabled him from
working as a plumber. (Ex. No. 11.) In his February 21, 1991
deposition, petitioner also testified that his carpal tunnel
syndrome did not prevent him from working as a plumber and
that his carpal tunnel symptoms had dramatically improved
following his 1988 surgeries:
Q. Is it your opinion that had this back injury not occurred
on July 15, 1988, that you could have continued ...