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Caekaert v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 10, 1993

BRAND E. CAEKAERT Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         The 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 following:

         FINDINGS OF FACT

         Employment History

         1. 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 as follows:

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.

         2. During the early 1980's, petitioner also worked at various times building dog houses and kennels and performing power lawn raking.

         3. 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.

         Claim for Compensation

         4. Petitioner began experiencing difficulties with his hands in 1982. His principal symptoms at that time were discoloration, tingling and numbness of his hands.

         5. In 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 2, 1988.

         6. At 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.

         7. On November 14, 1988, petitioner filed a claim for compensation on account of his carpal tunnel syndrome.

         8. The 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.

         Return To Work and Back Injury

         9. On June 27, 1988 petitioner returned to work as a plumber for Star Services, Inc.

         10. On 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.

         11. 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 one way.

         12. 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.)

         Nature Of Present Controversy

         13. 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.

         Prior Testimony By Petitioner

         14. On 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 and 35.)

         15. 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. DV-89-1483.

         16. In 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.)

         17. The 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 8.)

         18. In 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 ...

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