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Kober v. Buttrey Foods

Court of Workers Compensation of Montana

May 9, 1994

BUTTREY FOODS Respondent/Insurer/Employer.


          Mike McCarter, Judge

         The trial in this matter was held on February 15, 1994, in Great Falls, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Margaret Kober (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, Buttrey Foods (Buttrey), was represented by Mr. Thomas A. Marra. Claimant was sworn and testified on her own behalf. Patrick Stephenson of Intermountain Claims was sworn and testified. The parties stipulated that the Court could consider the deposition testimony of John R. Dorr, M.D. and William Shaw, M.D. Exhibit Nos. 1 through 17 were admitted into evidence by stipulation.

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


         1. At the time of trial claimant was 58 years old, married, and living in Townsend, Montana.

         2. Claimant was employed by Buttrey for 26 years as a meat wrapper. Her job included wrapping meat, filling meat cases, putting up trays of meat, and scrubbing floors.

         3. On April 1, 1986, claimant suffered an industrial injury while working for Buttrey. Claimant injured her back as she loaded a case of chickens into a cooler. The cases weigh up to 60 pounds.

         4. At the time of claimant's injury Buttrey was self-insured under Compensation Plan No. 1 of the Montana Workers' Compensation Act. Intermountain Claims has acted as Buttrey's adjuster for this claim.

         5. On September 26, 1988, the claimant and Buttrey entered into a full and final compromise settlement with respect to the 1986 injury. However, the settlement agreement reserved future medical benefits to the claimant. Thus, Buttrey continues to be responsible for medical bills incurred by claimant for treatment relating to the 1986 injury.

         6. The present dispute concerns the extent of Buttrey's liability for medical expenses. Claimant went without seeing a physician from March 9, 1989 until November 30, 1992, when she went back to see her treating physician on account of worsening back pain. Buttrey, through Intermountain Claims, has refused to pay Dr. Dorr's recent bills. It asserts that her current back condition is unrelated to her 1986 injury and that it has no further responsibility for medical expenses incurred in connection with treatment of claimant's back condition.

         7. Buttrey attributes claimant's current back condition to preexisting degenerative disc disease.

         8. Claimant injured her back in an industrial accident in 1972. She was off work for approximately three months. Dr. William H. Walton, an orthopedic surgeon, treated claimant and took x-rays on December 28, 1972. Claimant suffered additional back symptoms in 1976, taking two weeks off for bed rest. Additional x-ray were taken at that time.

         9. Between 1976 and 1986 the claimant worked without incident and without back pain or other back symptoms. She testified to this history and her testimony is not controverted by other evidence. The Court finds her testimony credible and adopts it.

         10. After her industrial injury on April 1, 1986, claimant was treated by Dr. Walton and x-rays were taken on May 8, 1986. Dr. Walton felt claimant probably had disc herniation at L5-S1 and also identified degenerative disc changes at L4-5 and at L5-S1. Dr. Walton determined that claimant reached maximum medical healing on January 2, 1987. (Medical records attached to Shaw Dep.)

         11. Claimant was examined by Dr. Robert K. Snider, who agreed with Dr. Walton's assignment of a 5% impairment rating for claimant in April of 1987. Dr. Snider's impression of claimant was chronic back sprain. (Medical records attached to Shaw Dep.)

         12. Dr. John Dorr, an orthopedic surgeon and an associate of Dr. Walton, treated claimant from November 11, 1987 through March 9, 1989. Claimant did not seek further medical treatment until she resumed treating with Dr. Dorr on November 30, 1992. Although Dr. Dorr did not see claimant during this interval, he prescribed medication for pain in April 1989 and again in May 1991. Dr. Dorr is currently claimant's treating physician.

         13. Since her 1986 injury claimant has had pain and a burning sensation in her lower back. The pain and burning have been continuous, although it has varied in intensity. Overall, the pain and burning sensation has worsened with time. Her pain in November 1992, and currently, is in the same area of her back as in 1986.

         14.When claimant returned to see Dr. Dorr on November 30, 1992, she advised Dr. Dorr that her condition was slowly getting worse.

         15. Claimant has not returned to work or suffered any subsequent injury since 1986.

         16. Mr. Patrick Stephenson (Stephenson) has adjusted claimant's case for Buttrey. On December 16, 1992, apparently in response to Dr. Dorr's medical bills, Stephenson wrote a letter to Dr. Dorr. The letter stated in part:

From the medical evidence in the file, it would appear that Margaret Kober's disc degeneration in the lumbar area had started substantially before her onset of symptoms, which occurred on or about 04/01/86. As the patient's x-rays revealed distinct narrowing at L4-5 and L5-S1 when she first saw Dr. Walton on 05/08/86, we would assume you would agree that the patient's disc degeneration the lumbar area had started substantially before the above-captioned claim occurred.
It is not our intention to indicate Ms. Kober did not have a compensable injury in April 1986, which was subsequently diagnosed as a chronic back sprain; however, if Ms. Kober's above-captioned back sprain aggravated the pre-existing degenerative disc disease, the insurer is only responsible for the aggravation, not necessarily the preexisting condition.
Based on the patient's medical history, as outlined above, it would appear that any follow-up medical care for the patient's degenerative changes in the lumbar area would not be compensable under the above captioned claim. Although we do not expect you to make a legal interpretation of Ms. Kober's case, should you disagree that Ms. Kober had a pre-existing condition, involving the lumbar disc degeneration, please advise us accordingly, and we would also request you provide us with any medical records that would support any objection to our interpretation.

(Ex. No. 3, all emphasis added.)

         17. Dr Dorr responded to Stephenson on February 2, 1993, concurring that claimant did have some preexisting disc disease, but went on his letter to state:

I do feel that this injury certainly aggravated her pre-existing disease and, in fact, seemed to have triggered her significant symptoms. . . .
I believe it would be possible for her to make the case that she was able to tolerate her pre-existing condition until such time as she had her injury. The aggravation of her preexisting condition has markedly increased her symptoms and decreased her ability to function.

(February 2, 1993 letter from Dr. Dorr to Stephenson, attached to Dorr Dep.; all emphasis added.)

         18. Stephenson wrote Dr. Dorr on February 23, 1993, reiterating Buttrey' position that it was responsible only for the aggravation and not any underlying condition:

With the understanding that Margaret Kober's claim of 04/01/86 involved a diagnosed chronic back sprain, which had aggravated the pre-existing degenerative disc disease, and as stated in our 12/16/92 [letter], the Workers' Compensation insurer is responsible for the aggravation only, and is not responsible for the pre-existing condition.

(Ex. No. 4; emphasis added.) Stephenson went on in his letter to request Dr. Dorr's further opinion as to whether claimant's condition was a result of "normal progression of degenerative disc disease," asking:

With the understanding that Ms. Kober is nearly 58 years old, and had evidence of degenerative disc disease as early as 1986, we would request your professional medical opinion as to whether it would be more probable that Ms. Kober's current degenerative findings represent a normal progression of degenerative disc disease, considering Ms. Kober's age and previous medical findings, as opposed to any other factors.


         19. Dr. Dorr responded on March 15, 1993, reiterating and stressing his opinion that claimant's preexisting back condition was aggravated and worsened by the 1986 injury. In full, Dr. Dorr wrote:

As I stated in my letter of February 2, 1993, I felt that Margaret Kober was able to tolerate her pre-existing condition until such time as she had her injury. The aggravation of her pre-existing condition has markedly increased her symptoms and decreased her ability ...

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