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Thomson v. Wausau Insurance Co.

Court of Workers Compensation of Montana

April 22, 1994




         The trial in this matter was held on January 31, 1994, in Billings, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Dean Thompson (claimant), was present and represented by Mr. Ira D. Eakin. Respondent, Wausau Insurance Companies (Wausau), was represented by Mr. Kelly M. Wills. Claimant was sworn and testified on his own behalf. Brenda Williams, Carlotta Hecker and Dennis Fettig were sworn and testified. Exhibit Nos. 1 through 4 and 7 through 11 were admitted into evidence by stipulation. Exhibit Nos. 5, 6 and 12 were withdrawn. Exhibit No. 13, consisting of 17 photographs, was marked for demonstrative purposes only. The testimony of Mary Gaddy, M.D., was taken in a post-trial deposition and submitted to the Court.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses appearing at trial, the exhibits and depositions, the Court makes the following:


         1. Claimant was 29 years old at the time of trial.

         2. On September 4, 1990, claimant suffered an industrial injury while working as a warehouseman, deliveryman and yardman at Apollo Piping Supply, Inc. (Apollo) in Billings, Montana. He was pulling a piece of pipe out of a grooving machine to put it on the stack of finished pipe when the pipe fell. Claimant leaned down to push the pipe away and felt something pop in his back.. (Tr. at 15.)

         3. Claimant reported his injury to Dennis Fettig, manager of Apollo, who urged him to obtain treatment.

         4.At the time of the claimant's injury Apollo was insured by Wausau, which accepted liability for his claim.

         5. Wausau paid claimant temporary total disability benefits from the time of his injury until October 16, 1991.

         6.Claimant never returned to his employment with Apollo but has continuously worked for a different employer as a cobbler's apprentice since May 18, 1992. Claimant's pay as an apprentice is $5.00 an hour. His pay at Apollo at the time of his injury was $5.75 an hour.

         7.Through his present petition the claimant is seeking total rehabilitation benefits for the period of October 16, 1991 to May 18, 1992. (Petitioner's Proposed Findings at 12.)

         8.Claimant was initially treated by Dr. Thomas C. Donahue, a chiropractor, who then referred claimant to Dr. Arturo Echeverri, a Billings neurologist, for consultation. Dr. Echeverri examined claimant and made an October 15, 1990 report in which he stated his impression that claimant suffered "[n]eck pain upper thoracic spine pain which could be muscle sprain". (Ex. No. 3 at 21.)

         9.At Dr. Echeverri's request, an MRI on claimant's cervical spine was done on October 30, 1990. The MRI disclosed a mild, very minimal annulus bulge at C5-6 and a very focal central disc herniation at C6-7, which was also characterized as mild. (Ex. No. 3 at 14.)

         10.Dr. Echeverri examined claimant again in January 1991. Thoracic x-rays taken at that time failed to disclose any specific abnormalities in that area of the back. Dr. Echeverri reported the results of his examination in a January 24, 1991 letter to Dr. Donahue, stating that he found no neurological deficits. Claimant's complaints were of pain between his shoulder blades and his left anterior chest wall. The report also noted "some give-away weakness which is not very consistent. Also when I check his reflexes, he made the left upper extremity jump more than normal but again objectively I found no neurological deficits." Thus, the examination failed to note any neurological symptoms which might be associated with nerve impingement. Dr. Echeverri recommended continued chiropractic and physical therapy. (Ex. No. 3 at 16.)

         11.In the meantime, Dennis Fettig wrote claimant on September 12, 1990, advising him that he could return to work when he had a written doctor's release. (Tr. at 102.)

         12.Dr. Donahue continued chiropractic treatments through at least April 1991. In November 1990 he had also referred claimant to a work hardening program. (Ex. No. 8.)

         13.Claimant was ultimately referred for further evaluation to determine if he could return to his time-of-injury job or any other job. Vocational evaluations were performed for both parties. Carlotta Hecker performed a vocational evaluation on behalf of the insurer. Brenda Williams performed a similar evaluation on behalf of claimant. Mary Mistal, a physical therapist, performed a functional capacities examination on June 20 and 21, 1991. Dr. Mary Gaddy, a neurologist, examined claimant on July 23, 1991. All of these examiners except Ms. Mistal testified at trial or by deposition. Claimant's treating physicians did not testify, although their medical notes are a part of the record in this case.

         14.Dr. Gaddy's office notes of her July 23, 1991 examination reflect the following: "Patient with neck pain and headaches following an on-the-job injury, but with no neurological defect found today. I do not find a history or clinical evidence of a cervical radiculopathy or mononeuropathy." Dr. Gaddy suggested that claimant return to work and continue his back and neck exercises three times a day. (Ex. No. 4 at 32.) She diagnosed claimant's injury as a cervical strain. In her opinion, claimant's condition had stabilized and he did not need any additional medical treatment. (Gaddy Dep. at 6.)

         15.Various job descriptions, including one for claimant's time-of-injury job, were prepared by Ms. Hecker and ...

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