FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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two of the three were withdrawn, leaving only the first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.
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.
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:
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.
Claimant injured his lower back on June 15, 1990, while
working for Pierce's.
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.
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)
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.
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.)
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.
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."
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
-Reduced flexibility in the trunk, neck and legs.
-Weakness noted in the legs, especially in the lower left
-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
-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
-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
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.)
Luckett's office note of April 23, 1991, summarized his
opinions concerning the nature of claimant's ...