FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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
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:
the time of trial claimant was 58 years old, married, and
living in Townsend, Montana.
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.
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
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.
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.
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.
Buttrey attributes claimant's current back condition to
preexisting degenerative disc disease.
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.
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
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.)
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.)
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
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.
claimant returned to see Dr. Dorr on November 30, 1992, she
advised Dr. Dorr that her condition was slowly getting worse.
Claimant has not returned to work or suffered any subsequent
injury since 1986.
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
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
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
(Ex. No. 3, all emphasis added.)
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.)
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
(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
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.
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 ...