R. KIM WUNDERLICH Petitioner
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BUTTREY FOOD AND DRUG Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in these two consolidated matters was held on January
10, 1994, in Great Falls, Montana, the Honorable Mike
McCarter, Judge of the Workers' Compensation Court,
presiding. Petitioner, Mr. R. Kim Wunderlich (claimant), was
present and represented by Mr. Richard J. Martin. Respondent
in WCC No. 9310-6907, Skaggs Alpha Beta, was represented by
Mr. Thomas A. Marra. Respondent in WCC No. 9310-6915,
Lumbermens Mutual Casualty Company, was also represented by
Mr. Thomas A. Marra. Claimant was sworn and testified on his
own behalf. Paula Wunderlich, Jon Rogers, Kip Anderson and
Terry Blackwell were also sworn and testified. Exhibits 1
through 10 were admitted into evidence. The parties
stipulated that the depositions of the claimant, Jon Rogers,
and Terry Blackwell shall be considered by the Court.
issue in WCC No. 9310-6915 concerns claimant's
entitlement, if any, to a penalty and attorney fees. He
alleges that acceptance of his claim for occupational disease
was unreasonably delayed. The principal issue in WCC No.
9310-6907 is claimant's entitlement, if any, to permanent
partial disability benefits under section 39-71-703, MCA.
Claimant also seeks attorney fees and costs in WCC No.
considered the Pretrial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, and the arguments of the parties,
the Court makes the following:
Claimant is 32 years old, is married and has four children.
He is a high school graduate and has also completed one
quarter of college at Northern Montana College. At the time
of trial he had enrolled for the 1994 winter term at Flathead
Valley Community College, where he plans to pursue a two year
degree in land surveying.
first began working for Buttrey Food & Drug (Buttrey) in
Cutbank, Montana, as a stockboy in February of 1981. Claimant
also worked for a short time at the Buttrey store in Havre.
In September 1982 he was hired by the Buttrey warehouse
distribution center in Great Falls, where he worked until
July 27, 1992.
worked at a variety of positions at the Buttrey warehouse in
Great Falls, including hauler, loader, meat selector,
cigarette stocker, supervisor and assistant dock supervisor.
At the time of his injury he was an assistant dock
supervisor. However, that position, as well as the other
positions he worked, required continuous lifting of cartons
and cases weighing up to one hundred pounds.
During his employment with Buttrey, claimant filed
workers' compensation claims for injuries to his low back
occurring on October 17, 1982, March 6, 1986, December 5,
1988, and February 17, 1991. Each injury was slightly greater
in intensity and duration. Claimant received chiropractic
treatment after each injury.
July 28, 1992, while riding his bike home from work, claimant
experienced severe lower back pain. As described by claimant
in a recorded statement he provided to claims adjuster Jon
Rogers (Rogers), claimant was
just comin' up an incline, so I stood up into the pedals
to pedal up the hill, and the lower part of my back went out,
or it hurt and I collapsed onto the handlebars, and was able
to put it into the lowest gear and continue home. And once I
got home, I was pretty much stuck in bed.
(Ex. 2 at 387.) When asked if he had back problems at work
that day, claimant stated: "Um, that's a tough one,
because being -- having back injuries, I've had pain
before and I work with pain constantly. However, its not this
kind of pain, it's a -- my back hurts, but it's not,
I don't know how to explain it." Id.
Since July 28, 1992, claimant has been unable to return to
work at Buttrey.
July 31, 1992, claimant signed an "Employer's First
Report of Notice of Occupational Injury or Occupational
Following the July 28, 1992, episode, claimant was first
treated on July 31, 1992 by Dr. Paul Dolan, an internist. Dr.
Dolan submitted his Attending Physician's First Report on
August 4, 1992 (Ex. 4 at 100101 and 500009), noting that
"the pt. had MRI scan yesterday at Deac. which suggested
some slight bulging in three discs, I believe that was L2, 3
and 4 but not any distinct evidence of radiculopathy."
August 10, 1992, claimant was informed by his supervisor, Ron
Myre, that his claim was denied. Claimant then contacted the
claims adjuster, Jon Rogers, who agreed to take a statement
from claimant and suggested that a letter from claimant's
doctor might be helpful.
August 10, 1992, Dr. Dolan sent a letter to Mr. Rogers
stating in part that "[a]lthough the onset of pain was
while the patient was riding his bike, I do not feel this is
the etiology of the patient's pain and I think this is
clearly related to his employment." (Ex. 4. at
August 19, 1992, Rogers sent claimant a letter denying the
claim under both the Workers' Compensation Act and the
Occupational Disease Act. (Ex. 2 at 400.) The letter notified
the claimant that he could contact the Department of Labor
and Industry (DLI) if he did not agree with the decision.
August 26, 1992, Dr. Dolan again wrote to Rogers, stating,
"By no means do I think that pedaling his bicycle was
the precipitating factor to his back injury. Frankly, I
don't see how this could even be a point of
contention." (Ex. 4 at 600032.)
September 30, 1992, Rogers scheduled an independent medical
examination of claimant. The IME was scheduled with Dr.
Stephen Johnson, a Missoula neurologist. (Ex. 2 at 367.)
Johnson examined claimant on October 12, 1992. In a letter to
Jon Rogers he noted that claimant had mechanical low-back
pain related to degenerating discs at the L5, S1 and to
lesser extent L4, 5 level. He also stated that "[t]he
acute episode does not constitute a job injury, but it
certainly could come under the
"occupational disease" category." (Ex. 3 at
000007; emphasis added.) Dr. Johnson's medical report,
which was enclosed with his letter, concluded that the
bicycle incident was the "last straw" but noted
that claimant had a history of heavy, occupational lifting
and that `[a] good case can be made that he has an
"occupational disease" affecting his low back.'
He recommended that claimant find another occupation. (Ex. 4
November 3, 1992, Rogers sent a letter to claimant notifying
him that he had received Dr. Johnson's report and based
on the report Lumbermens was continuing to deny liability for
the claim "both as an injury and as an occupational
disease." (Ex. 2 at 324.)
Claimant was examined by Dr. Dale Schaefer, a neurosurgeon in
Great Falls, on November 9, 1992. Dr. Schaefer also
recommended that claimant find another occupation. He further
As I gather from reading his notes there is some disagreement
as to whether or not this represents a work related injury.
To me this argument seems quite silly. It is clear that over
the course of at least ten years this gentleman has suffered
at least five exacerbations of low back pain all described in
very similar terms all in the very same location and all of
which he has recovered from with conservative treatment and
returned to his job. There is a clear pattern that each
injury causes a bit more time off work and takes a bit longer
to recover from. I do not see how this recent
exacerbation could be considered anything other than a work
related injury and I did discuss this with Mr.
Wunderlich. I also told him that in my opinion that when
he recovers from this injury he would be well apprised to
seek a different type of employment. Certainly one that does
not require a great deal of heavy lifting. It is my opinion
that if he returns to this type of work after recovering from
this recent exacerbation he will undoubtedly have further
difficulties with his back which may be much more difficult
to control in the future. [Emphasis added.]
(Ex. 4 at 600037-8.) A copy of Dr. Schaefer's report was
date stamped as received by Intermountain Claims in November,
1992. (Ex. 2 at 275.)
March 29, 1993, the occupational disease dispute was referred
to the Montana Department of Labor and Industry (DLI), which
arranged for claimant to be examined by an occupational
disease panel. (Wunderlich Dep. Ex. 14.) Claimant was
examined on May 4, 1993. The panel concluded that claimant
was suffering from an occupational disease as a result of his
employment that precludes him from returning to work at his
same occupation. (Ex. 2 at 236-238.) Answering specific
questions put to him by the DLI, the panel physician (Dr.
Ronald M. Peterson), concluded:
1) I do believe that the patient is suffering from a
disease that is a result of his employment.
2) I believe the employment can be traced as the proximate
cause as outlined in the five criteria.
3) I do not believe that the patient is permanently unable to
do any type of work but I do believe that he is
unable to do his previous work on a permanent basis. I do not
believe that there is a nonoccupational component to his
(Id.) The panel report was date stamped as received
by Intermountain Claims on June 18, 1993.
July 8, 1993, the DLI issued an Order of Determination
finding that the claimant is suffering from an occupational
disease and is entitled to benefits under the Occupational
Disease Act. (Ex. 2 at 219.)
an August 9, 1993 letter, Jon Rogers notified the claimant
that Lumbermens was accepting liability for claimant's
occupational disease claim. The letter also advised claimant
that Lumbermens would be paying claimant retroactive
temporary total disability benefits and that future bi-weekly
temporary total disability benefits would also be paid.
September 3, 1993 claimant's counsel demanded a 20
percent penalty on the retroactive wage loss and medical
benefits. The insurer denied the request.
decision to deny the occupational disease claim during the
period of July 28, 1992 to August 9, 1993, was made by
Lumbermens. The basis for the decision was never credibly
explained by Lumbermens' witnesses. Claims adjuster
Rogers testified that initially it was denied because the
claim was for an injury rather than an occupational disease,
and based on a single incident. However, the claim was denied
as both an injury and an occupational
disease, and the denial was reiterated even after Rogers and
Lumbermens received medical opinions stating that
claimant's low- back condition was caused by an
occupational disease. Lumbermens' presented no evidence
that it obtained any medical evaluation which disputed the
medical opinions of Dr. Dolan or Dr. Schaefer. Dr. Johnson,
who examined claimant at Lumbermens' request, did not
support the denial and indeed indicated that `[a] good case
can be made that he has an "occupational disease"
affecting his low back.' (See Finding of Fact No.13.) In
the face ...