Submitted Date: August 17, 1995
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on August 16 and 17, 1995, in
Billings, Montana. Petitioner, Victoria Kloepfer (claimant),
was present and represented by Mr. James G. Edmiston, III.
Respondent, Lumbermens Mutual Casualty Co. (Lumbermens), was
represented by Mr. Steven S. Carey.
and Depositions: The claimant, Juanita Hooper, Dana
Headapohl, M.D., Martin Cheatle, Ph.D., and Peter V. Teal,
M.D. testified at trial. Dr. Teal's testimony was taken
at his office. The depositions of claimant, Dana Headapohl,
M.D., Michael Lahey, M.D., Ethan Russo, M.D. and Martin
Cheatle, Ph.D. were also submitted to the Court for its
transcript of the trial has been prepared and therefore is
not cited in this decision.
With the exception of pages 249 through 288 of Exhibit 1,
Exhibits 1 through 4 were admitted by agreement of the
parties. Claimant objected to pages 249 through 288 on
relevancy grounds. Having reviewed those pages, I found
nothing in them which will assist me in reaching my decision
in this case. The objection is therefore
Presented: Petitioner seeks an adjudication that she is
permanently totally disabled as a result of her back injury
of April 14, 1992, and that she is therefore entitled to
permanent total disability benefits. She also seeks attorney
fees and costs.
Proceedings: In a previous proceeding this Court
determined that back surgery performed on claimant on June 2,
1993, was reasonable treatment for her April 14, 1992 injury.
I ordered Lumbermens to pay for the surgery and to pay
temporary total disability benefits during claimant's
period of recuperation. Victoria Kloepfer v. Lumbermens
Mutual Casualty Co., WCC No. No. 9305-6796, Findings of
Fact, Conclusions of Law and Judgment (January 18, 1994)
(referred to hereinafter as Kloepfer I). At trial
the parties agreed that the depositions, testimony and
exhibits admitted in the prior proceedings may be considered
by the Court in reaching its decision in the present case.
* * *
considered the Pre-trial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, the Court makes the following:
Claimant is 45 years old. She is a divorced mother of three.
One of her three children, a fourteen year old daughter, is
still living at home.
Claimant has a ninth grade education. Her work history
includes jobs as a house cleaner, cashier/checker, photo
finishing worker, nurses aide, and receptionist-trainee. (Ex.
2, pg. 14.) However, her employment has been sporadic and
short-term. Between 1974 and 1986 she held no significant
employment. (Kloepfer I at 1.) Between 1987
and 1991 she worked sporadically as a construction laborer.
(Id.) She has never been employed in any one
position for an extended period of time.
April 1991 until September 24, 1991, the claimant worked as a
general laborer for Bechtel Construction Company at its
Conoco Refinery in Billings, Montana. Claimant filed an
occupational disease claim for tendinitis or fibromyalgia
arising while she was employed by Bechtel. At the time of the
claim, Bechtel was insured by Lumbermens, which accepted the
claim and paid medical and temporary total disability
benefits. (Id. at 2.)
part of a rehabilitation program for her occupational
disease, claimant was enrolled in a work-hardening program at
the Billings Clinical Physical Rehabilitation Center.
(Id.) On April 14, 1992, while participating in that
program, she injured her lower back when attempting to empty
a wheelbarrow. (Id.) Lumbermens deemed the
additional injury as compensable under claimant's
occupational disease claim and thereafter paid medical and
temporary total benefits on account of the injury.
(Id. at 3.)
June 2, 1993, Dr. Peter Teal, a board certified orthopedic
surgeon, performed low-back surgery on claimant. He carried
out a disk excision at the L5-S1 level and fused the L5-S1
vertebrae (with instrumentation). (Ex. 1 at 308.) The fusion
is solid. However, the claimant experienced little pain
Claimant has reached maximum healing but contends that her
pain renders her incapable of gainful employment and that she
is therefore permanently totally disabled.
to her continuing pain, on October 27, 1993, claimant was
treated with an epidural steroid injection. The treatment was
unsuccessful. Claimant reported ...