GARY R. MOTICHKA Appellant
PLUM CREEK TIMBER COMPANY Respondent/Employer.
DECISION AND ORDER ON APPEAL
(claimant) appeals from Findings Of Fact; Conclusions
of Law; Order entered by Stan Gerke, a hearing
examiner for the Montana Department of Labor and Industry
(DLI) on January 4, 1993. The decision determines that
claimant suffers from an occupational disease as defined in
section 39-72-102(10), MCA, and attributes 30 percent of
claimant's disability to occupational factors and 70
percent to non-occupational factors. Having considered the
grounds advanced by claimant, the decision is affirmed.
worked for Plum Creek Timber Company (Plum Creek) from July
13, 1971 until January 2, 1991 (Dep. of Claimant at 37, 86.)
During that time he held the following jobs:
Green Chain Offbearer 1971-1972
Hyster Operator 1982-1988
Saw/sander Operator 1988-1991
(Tr. at 25-27.)
January 2, 1980 claimant injured his back while at work. (Tr.
at 28-29.) Plum Creek accepted the injury as compensable
under the Workers' Compensation Act, Title 39, Chapter
71, MCA. Claimant was treated by Dr. Covill, who diagnosed
the injury as lumbosacral strain (Exhibit No. C at 20) and
noted in his "Attending Physician First Report"
that it would not result in any permanent injury (Exhibit No.
C at 21). Claimant was also treated one time by a
chiropractor, who also noted that the injury would not result
in any permanent disability. (Burton Dep. Exhibit No. 3.)
the spring of 1983 or 1984, the claimant has also worked in a
ranching operation he owns with his brother. (Dep. of
claimant at 21.) The operation primarily involves growing and
harvesting hay. Claimant estimated that on a yearly basis he
has devoted 90 percent of his work hours to his job at Plum
Creek and 10 percent to his haying operations. (Tr. at 36.)
his January 2, 1980 injury, claimant did not report any
further injuries to his back as a result of his employment at
Plum Creek. However, he did suffer several injuries or
aggravations to his back as a result of incidents occurring
at home or during the haying operations. On March 25, 1985,
claimant injured his back at home and had to take time off
from his employment. (Hembd Dep. Ex. No. 1.) He was treated
by chiropractor Wayne Jacobsmeyer and Dr. James Laidlaw. A CT
scan on January 29, 1985 revealed a slightly bulging disc at
L5-S1. (Laidlaw Dep. at 15 and Dep. Ex. No. 2 at 4.)
Thereafter, claimant was treated by Dr. Jacobsmeyer for
several back injuries or exacerbations sustained at home or
in the ranch operations. (Jacobsmeyer Dep. at 6 and Dep.
Exhibit No. 1.)
December 31, 1990, claimant experienced an onset of low back
pain while bending over to pick up a tool while performing
maintenance work on some hay farming equipment. This was the
last in a series of ranch and home-related incidents.
Although claimant attempted to continue working for Plum
Creek he was unable to do so. (Tr. at 43-44.)
asked for an opinion apportioning claimant's disability
between his occupational and non-occupational employment, Dr.
Jacobsmeyer initially demurred. When pressed by
claimant's attorney, who asked the doctor to assume he
had a "gun to his head", Dr. Jacobsmeyer said his
"wild guess", which he then qualified as a
"tough guess", would be 70-30 percent, 80-20
percent, or 75-25 percent occupational versus
non-occupational. (Jacobsmeyer Dep. at 11-14.) Dr.
Jacobsmeyer testified that he was not aware of what
claimant's physical duties were at his job. Jacobsmeyer
is not a member of the Occupational Disease Panel for the
State of Montana. (Id. at 15, 27.)
James Laidlaw, an orthopedic surgeon who treated claimant,
declined to render any opinion apportioning claimant's
disability. He did not feel that he had the information
necessary to render an opinion. (Laidlaw Dep. at 12.)
James Burton, an orthopedic surgeon who regularly serves on
the Occupational Disease Medical Panel of Montana, was
selected to examine claimant pursuant to section
39-72-602(2)(a), MCA. Dr. Burton's initial opinion, based
on his examination of claimant and the information claimant
provided to him, was that claimant's disability was 100
percent occupationally related. (Burton Dep. at 10 and Dep.
Exhibit No. 2.) However, according to Dr. Burton, he was not
told of the home and ranch-related incidents which occurred
after 1982. Subsequent to Dr. Burton's initial opinion,
the attorneys for both parties provided the doctor with
additional information concerning claimant's history of
back complaints. They also provided additional medical
records and descriptions of claimant's jobs at Plum
Creek. Dr. Burton re-evaluated claimant and concluded there
was no direct causal connection between his employment at
Plum Creek and his current disability (Burton Dep., Exhibit
5.) Claimant's attorney requested him to reconsider.
Ultimately, Dr. Burton concluded that claimant did suffer
from an occupational disease, and apportioned 30 percent of
his disability to occupational related factors and 70 percent
to non-occupational factors. (Burton Dep. at 24 and Dep.
Exhibit No. 6.)
on Dr. Burton's first report, the DLI issued an order of
determination concluding that claimant suffered an
occupational disease and was entitled to benefits under the
Occupational Disease Act. Plum Creek requested a hearing.
hearing was held before a DLI hearing examiner on April 29,
1992, and FINDINGS OF FACT; CONCLUSIONS OF LAW; ORDER were
issued on January 4, 1993. The hearing examiner found that
claimant suffers from an occupational disease, and attributed
30 percent of ...