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Wood v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 24, 1994

DALE WOOD Petitioner


          Mike McCarter, Judge

         The trial in this matter was held on February 9, 1994, in Helena, Montana. Petitioner, Dale Wood (claimant), was present and represented by Randall O. Skorheim. Respondent, State Compensation Insurance Fund (State Fund), was represented by William O. Bronson. Claimant and Randy Jackson testified. Exhibits 1 through 35 were admitted into evidence by stipulation. The depositions of Michael Luckett, M.D., and Patrick E. Galvas, O.D., Ph.D., have been submitted to the Court for its consideration in reaching its decision.

         Nature of dispute: The Pre-trial Order listed three issues. However, two of the three were withdrawn, leaving only the first issue. That issue, as framed by the Pre-trial Order, is:

Whether the Claimant suffered a compensable industrial injury on July 29, 1992, and is entitled to the appropriate temporary total, permanent partial, permanent total or retraining and other benefits.

         Opening statements made at trial, and the post-trial memoranda of counsel, put a somewhat different cast on the issue the parties wish the Court to decide. No specific benefits are requested by claimant and the State Fund does not dispute claimant's contention that he suffered a compensable injury. As presently presented, the issue for the Court's decision is whether the claimant is permanently disabled on account of his July 29, 1992 injury. The parties also seek a determination as to whether his injury is to the same part of the body as a previous industrial injury.

         Having considered the Pre-trial 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:


         1. Claimant is forty-three years of age. He worked as a mechanic for Pierce's Dodge City (Pierce's), an auto dealership, for approximately sixteen years prior to 1990.

         2. Claimant injured his lower back on June 15, 1990, while working for Pierce's.

         3. At the time of the 1990 accident Pierce's was enrolled under Plan III of the Workers' Compensation Act and was insured by the State Compensation Insurance Fund.

         4. Claimant was initially treated on June 15, 1990, at the Montana Deaconess Medical Center Emergency Room. His symptoms at that time included sharp pain in the lower left lumbar area and pain and numbness of the left leg. The record of the physical examination conducted at the ER notes exquisite tenderness of the left side in the area of the L4-S1 vertebrae and "tight and swollen" para spinous muscles of the left side. (Ex. 1)

         5. Claimant was first examined by Dr. Michael Luckett, an orthopedic surgeon, on June 20, 1990. Dr. Luckett continued to treat claimant over the next three and one-half years.

         6. At the time of Dr. Luckett's June 20, 1990 examination, claimant was complaining principally of pain in his low back and left buttock and leg. Dr. Luckett noted claimant was "unable to ambulate secondary to severe bouts of pain which lead to giving way of his left lower extremity." His preliminary diagnosis was: "I think that this gentleman has a lumbar disc herniation with S1 radiculopathy based on his dermatomal pain complaints." (Ex. 2 at 1.)

         7. Subsequent evaluation did not confirm Dr. Luckett's preliminary diagnosis, and the doctor ultimately diagnosed claimant as suffering from "degenerative disk disease with back and lower extremity pain." (Luckett Dep. at 6.) He treated claimant conservatively, prescribing physical therapy, medication, and use of an exercise pool.

         8. On January 29, 1991, Dr. Gorsuch examined claimant at Dr. Luckett's request. At that time claimant gave a history of "pain from the center of the back into the buttock, thigh, lateral calf and foot of both legs, left greater than right." (Ex. 2 at 15.) Dr. Gorsuch also noted that claimant was "currently [he is] walking about 1500 yards at a time."

         9. At Dr. Luckett's request a functional capacities evaluation of claimant was performed at Columbus Hospital in Great Falls on April 9, 1991. The physical limitations noted at that time included:

-Reduced flexibility in the trunk, neck and legs.
-Weakness noted in the legs, especially in the lower left extremity.
-Maximum walking distance without resting is 3/4 miles.
-Sustained standing tolerance is 15 minutes without support.
-Sustained sitting tolerance in a cushioned office chair is 45 minutes.
-Pushing and pulling limited to 50 lbs. as increased weight significantly increases pain.
-Unilateral reaching is limited to under 3 lbs. with the left hand and reaching across midline with left increases pain significantly.
-Bilateral lifting should be limited to under 25 lbs.
-Pain is present and increases with walking, climbing, pushing, pulling, squatting, standing and reaching with left hand across midline.

(Ex. 4 at 41-44.) The report of the examination also noted that claimant's range of motion in the trunk was very limited in all planes; and cervical motion was moderately to severely limited. The examiners concluded that "[b]ased on physical demand characteristics of work, we recommend no more than light duty employment for Mr. Wood." (Ex. 4 at 31.)

         10. On April 23, 1991, Dr. Luckett examined claimant and determined that his condition was medically stable. Dr. Luckett conducted an impairment rating evaluation, and assigned claimant an impairment rating of seven percent. Dr. Luckett utilized the Third Edition of the Guide to the Evaluation of Permanent Impairment but did not utilize the "range of motion" criteria specified in the Guide. In his opinion those criteria "boost up impairment ratings considerably on the order of 20 percent where people weren't even that impaired." (Luckett Dep. at 21.)

         11. Dr. Luckett's office note of April 23, 1991, summarized his opinions concerning the nature of claimant's ...

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