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Wunderlich v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

June 28, 1994

R. KIM WUNDERLICH Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BUTTREY FOOD AND DRUG Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         The 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.

         The 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. 9310-6907.

         Having 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:

         FINDINGS OF FACT

         1. 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.

         2.Claimant 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.

         3.Claimant 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.

         OCCUPATIONAL DISEASE CLAIM

         4. 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.

         5.On 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.

         6. Since July 28, 1992, claimant has been unable to return to work at Buttrey.

         7. On July 31, 1992, claimant signed an "Employer's First Report of Notice of Occupational Injury or Occupational Disease" form.

         8. 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."

         9. On August 10, 1992, claimant was informed by his supervisor, Ron Myre, that his claim was denied. Claimant then contacted the claims adjuster, Jon Rogers[1], who agreed to take a statement from claimant and suggested that a letter from claimant's doctor might be helpful.

         10. On 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 600031.[2])

         11. On 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.

         12. On 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.)

         3.On 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.)

         14. Dr. 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 at 600034-5.)

         15. On 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.)

         16. 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 commented:

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.)

         17. On 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 current status.

(Id.) The panel report was date stamped as received by Intermountain Claims on June 18, 1993.

         19. On 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.)

         20. In 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.

         21.On September 3, 1993 claimant's counsel demanded a 20 percent penalty on the retroactive wage loss and medical benefits. The insurer denied the request.

         22. The 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 ...


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