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Carmody v. Employers Insurance of Wausau

Court of Workers Compensation of Montana

May 6, 1994




         The trial in this matter was held on October 25, 1993 in Helena, Montana. Petitioner, Angela Carmody (claimant), was present and represented by Mr. Bradley J. Finn. Respondent, Employer's Insurance of Wausau (Wausau), was represented by Mr. P. Mars Scott. Claimant was sworn and testified. Exhibit No. 1 was admitted. Exhibit No. 2 was objected to and refused. The parties agreed that the following depositions are to be considered a part of the record: Clarisse Landry, Dick Mogensen, Darlene Keene, Dr. Donald Harrell, Dr. Jeffrey Hansen, Angela Carmody and Patricia Hink (taken on October 19, 1993 and November 8, 1993 and attached to the Duplicate Original Hink Deposition filed November 23, 1993).

         The issues presented concern claimant's entitlement, if any, to wage supplement and vocational benefits, attorney fees and costs.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor of the claimant, the depositions and the exhibit, the Court makes the following:


         1.At the time of trial claimant was 29 years of age. She was born in Great Falls, Montana and graduated from Broadwater High School in Townsend, Montana in 1983.

         2.In 1984 claimant attended three months of schooling at the Air Academy in Vancouver, Washington, which qualified her for employment as an airline ticket, reservation, and travel agent.

         3.On March 11, 1985, she was hired by Western Airlines (Western) as a ramp agent. The duties of her position included checking in passengers and handling cargo and baggage.

         4.In her employment application to Western, claimant indicated that she was willing to work "anywhere on Western's system." (Mogensen Dep.; Ex. M.) She was initially assigned by Western to a job in Ontario, California.

         5.Claimant transferred to Billings, Montana in October 1985 following the completion of her initial probationary period with Western. Claimant sought the transfer.

         6.Delta Airlines (Delta) bought or took over Western in 1987. Western employees, including claimant, were offered continued employment with Delta. Claimant accepted and became a Delta employee. While the insurer argues that claimant was contractually bound to work at any location within Delta's system, claimant denies agreeing to go anywhere outside of Montana. (Tr. at 17-18.) Respondent has not produced any signed employment application or employment agreement between Delta and claimant wherein claimant agreed to accept reassignment outside the State of Montana. I find that claimant did not agree to Delta assigning her a job outside of Montana. I also find that she desired to remain in Montana.

         7.After taking over Western, Delta assigned some of the Billings agents to counter positions and others to ramp work. Claimant was designated a counter agent and her primary duties were checking in passengers and passenger baggage. She continued in that position until her employment with Delta was terminated.

         Claimant's First Injury

         8.On December 22, 1985, [1] claimant injured her right knee while working for Western. She tripped on a ground power cord as she was directing an airplane to its parking position at the Billings terminal. (Uncontested Fact No. 4.)

         9.At the time of the 1985 injury, Western was insured by Industrial Indemnity Company, which accepted liability and paid medical and disability benefits.

         10.Claimant first sought medical treatment from Dr. Jeffrey Hansen, an orthopedic surgeon, on January 28, 1986. On January 31, 1986, Dr. Hansen performed an arthoscopy "with removal of a displaced mass of fat pad and synovium that was interarticular and lateral compartment". (Hansen Dep.; Ex. A.)

         11.For the next several months claimant's knee continued to cause her pain and discomfort. On May 1, 1987, a second arthroscopic examination took place with the excision of synovial plica and a lateral release. The release was particularly significant because it allowed the patella (knee cap) to glide more evenly. (Harrell Dep. at 15-16.) The nature of claimant's injury and condition are further described in Finding No. 22.

         12.On June 9, 1988, Dr. Hansen found that claimant had "basically reached maximum medical recovery" and gave a 22% impairment of the right lower extremity, which translates to a 9% whole person impairment. In discussing this impairment rating the following exchange occurred:

Q. Would it be true, then, that she had really not reached maximum stability on June 9, 1988 because she was still having problems and going through a process of improvement?
A Well, I guess that depends on how you define it. She had reached maximum stability, but she still had a bad knee, and she got as good as she's going to get with a knee that wasn't great, and that's how I would characterize it, more [sic]. The problem with these kinds of things in saying when they're at maximum stability, they have their ups and downs, little episodes, whether it's the weather or sitting for a long period of time or whatever can aggravate it, but I think at that point in time it would be reasonable to call it at maximum stability, although not perfectly healed and asymptomatic, you know.

(Hansen Dep. at 38.)

         13.Claimant was off work for approximately three months following the second surgery. (See Hansen Dep.; Ex. A.) She returned to work and thereafter worked continuously until February 17, 1991. The office notes of Dr. Hansen, who treated her knee injuries throughout, indicate that he did not examine or treat her between November 1, 1988 and February 21, 1991. (Id.)

         Claimant's Subsequent Injuries

         14.On February 17, 1991, claimant suffered a second industrial injury while employed by Delta. She reinjured her right knee when she twisted it while carrying two cases of pop up a stairway. (Uncontested Fact No. 5.) At that time Delta was insured by Wausau, which accepted liability and paid medical and disability benefits.[2]

         15.Claimant initially sought treatment at the emergency room. She was seen by Dr. Dennis Tek, who immobilized her knee and prescribed ice and elevation for two days. He also prescribed pain medication and told her to see Dr. Hansen. (Hansen Dep.; Ex. C.)

         16.Dr. Hansen saw the claimant on February 21, 1991. He took her off work for a couple of weeks to "let things quiet down." (Id.) When she returned to work on March 9th, Dr. Hansen prescribed "light duty for 2 weeks, then return to full duty. . . ." On April 1, 1991, the light duty prescription was extended ". . .until further notice." (Id.) On April 1st the claimant complained to Dr. Hansen "that her job is not really allowing her light duty, even though we requested it." In his April 11, 1991 office note, Dr. Hansen wrote, "It is certainly above and beyond our control, but I think doing extremely heavy exertion can be exacerbating to her knee problem." (Hansen Dep.; Ex. A.)

         17.In an April 26, 1991 letter to Dick Mogensen, station manager for Delta, Dr. Hansen wrote:

Angela has a knee that is going to bother her off and on forever. ... I think she has a knee that has some difficulty with chronic irritation of the patellofemoral joint and is continuing to be susceptible to injury. Any job that requires her to be on her feet for a long period of time and do lifting, twisting, turning and moving could cause her to have an increase in her symptoms.

(Hansen Dep.; Ex. C.)

         18.Dr. Hansen recognized that there was no light duty work for the claimant and requested that she continue with her usual work. He explained his philosophy by saying,

I did tell Mr. Mogensen that I realized that from a realistic standpoint, she really couldn't be light duty, and I thought that, well, if she can tough it out -- I hope that she can, like I mentioned earlier, get used to this, live with it -- that she can do her job.

(Hansen Dep. at 46.)

         19.On August 8, 1991, claimant again banged her right knee when, while checking a passenger in for a flight, a back pack rolled off of the conveyor belt "and hit me in the back of the legs and shoved my leg over and twisted it and [sic] into the counter." (Tr. at 22.) The deposition testimony of Darlene Keene, upon which the insurer relies in disputing claimant's version of the incident, was taken three years after the episode and did not comport with a written statement she gave earlier. Moreover, claimant reported the incident to her physician on the next day, and the Court finds her testimony about the incident credible.

         20.On August 9, 1991, claimant was seen by Dr. Hansen, who considered the August 8 incident to be a new episode. However, his examination revealed "no fluid in the joint, no major aggravation," and he characterized it as a "minor nuisance/aggravation more than anything." Dr. Hansen recommended conservative treatment and took the claimant off work for five days with instructions to return at her own discretion. (Hansen Dep.; Ex. A) On September 19, 1991, Dr. Hansen again examined claimant. He noted "exquisite tenderness in the lateral facet of her patella," and concluded, "I think the best thing for her would be to change jobs . . . to a position that does not require long term standing, as well as lifting of heavy luggage." (Hansen Dep.; Ex. A) Claimant did not thereafter return to work.

         21.Claimant continued to work following the February 1991 aggravation, even though she continued to experience knee problems. (Tr. at 27-28.) Neither party presented medical evidence showing that claimant had reached maximum medical healing following her February 17, 1991 injury. Claimant's testimony that she had been limping a few days prior to her August 8, 1991 injury indicates that she continued to suffer from the effects of the February exacerbation. In her proposed findings, claimant asserts that she had not reached maximum healing prior to August 8, 1991, and the Court so finds.

         22.Claimant's knee condition is patellofemoral pain syndrome (Ex. No. 1; Hansen Dep. at 27-28, 32), which essentially describes anterior (front) knee pain in the area of the knee cap, and chondromalacia of the patella (knee cap), which is a softening and roughing of the articular cartilage of the patella (Hansen Dep. at 31; Harrell Dep. at 11). The latter condition (chondromalacia) is typically caused by either direct trauma to the patella or "traumatic subluxation, which means that the patella is sliding out of the groove laterally." (Harrell Dep. at 11.) The basic diagnosis and condition of claimant's knee has remained unchanged since her second surgery in 1987.

         23.A key controversy in this case is whether either or both incidents of February 17 and August 8, 1991 permanently aggravated claimant's preexisting knee condition. Insurer takes the position that any aggravations were merely temporary and that claimant's current condition is due entirely to her December 1985 injury. While the evidence is less than overwhelming, I find that the February 17 and August 8, 1991 incidents permanently worsened and permanently aggravated claimant's preexisting condition. The following facts and testimony were important to me in reaching my conclusion in this regard:

a. Dr. Hansen, while characterizing the incidents as "little" or "minor aggravations" (Hansen Dep. at 40, 63), also testified that they were "new episode[s]" (Id. at 47:8) and "minor new injuries on top of an old, existing condition, stimulating recurrence of her symptoms." He also noted that the incidents might have caused a flareup of her symptoms due to irritation produced by a grinding of the knee cap against the femur, and that such grinding could also have caused further physical damage to the articular surface of her patellofemoral joint. (Id. at 64, 66.) Pertinent portions of Dr. Hansen's testimony are set out in the margin.[3]
b. Dr. Harrell characterized the February and August 1991 incidents as subluxations of the patella. (Harrell Dep. at 15-16; 49-50.) While he did not specifically address the aggravation issue in his deposition testimony, in his written report Dr. Harrell states:
It is my feeling that her symptoms have been patellofemoral pain from the very begining [sic] of her history and that this was appropriately treated at her second operation with a lateral release. It is also my feeling that each of her injuries in which she struck the patella, aggravated the pre-existing patellofemoral arthrosis and are all responsible for her present condition.
. . .

(Ex. No. 1; emphasis added.)

c. Claimant had more than a two year medical hiatus after fully recovering from her second 1987 surgery. She continued working for Delta and did not require medical attention between November 1, 1988 and February 17, 1991. Following the two 1991 incidents, her knee pain increased in severity and constancy.

         Termination of Employment

         24.Following the August 1991 reinjury, claimant returned for four days and then never returned to her job as a counter agent. (Carmodoy Dep. at 32). On June 16, 1992 Delta terminated her employment due to her failure "to maintain Delta standards for continued employment." (Mogensen Dep.; Ex. D.) Her supervisor Dick Mogensen recommended the termination because claimant had not returned to work and Delta needed to fill her position. (Id. at 62.)

         Ability To Return To Time-of-Injury Job

         25.The insurer disputes claimant's contention that she was unable to return to her old job as a counter agent.

         26.Claimant saw Dr. Hansen on September 19, 1991, at which time she was doing better but still ...

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