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Kloepfer v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

September 18, 1994

VICTORIA KLOEPFER Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BECHTEL CONSTRUCTION COMPANY Employer.

          Submitted Date: August 17, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         The 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.

         Witnesses 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 consideration.

         No transcript of the trial has been prepared and therefore is not cited in this decision.

         Exhibits: 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 sustained.

         Issues 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.

         Prior 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.

          * * * * *

         Having 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:

         FINDINGS OF FACT

         1. 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.

         2. 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.

         3. From 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.)

         4. As 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.)

         5. On 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 relief.

         6. Claimant has reached maximum healing but contends that her pain renders her incapable of gainful employment and that she is therefore permanently totally disabled.

         7. Due to her continuing pain, on October 27, 1993, claimant was treated with an epidural steroid injection. The treatment was unsuccessful. Claimant reported ...


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