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Motichka v. Plum Creek Timber Co.

Court of Workers Compensation of Montana

February 14, 1994

GARY R. MOTICHKA Appellant
v.
PLUM CREEK TIMBER COMPANY Respondent/Employer.

          DECISION AND ORDER ON APPEAL

          MIKE McCARTER JUDGE.

         Appellant (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.

         Factual Background

         Claimant 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
Cleanup 1972-1973
Spreaders 1973-1982
Hyster Operator 1982-1988
Saw/sander Operator 1988-1991

(Tr. at 25-27.)

         On 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.)

         Since 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.)

         After 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.)

         On 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.)

         When 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.)

         Dr. 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.)

         Dr. 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.)

         Based 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.

         A 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 ...


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