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Krzan v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 4, 1994

KRYSTYNA KRZAN Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for WAR BONNET INN Employer.

          ORDER ON APPEAL

          Mike McCarter, Judge

         Introduction

         This is an occupational disease case. The question presented is whether Krystyna Krzan's varicose veins were caused or aggravated by her employment as a motel maid. A hearing examiner of the Department of Labor and Industry (Department) found they were not. Ms. Krzan appeals.

         Factual and Procedural Background

         Krystyna Krzan (Krzan) worked as a motel maid at the War Bonnet Inn in Butte, Montana from 1975 until September 26, 1991. During that time she suffered from varicose veins in both of her legs. In 1977, Dr. Carl A. Birkelo, a surgeon, stripped the veins of the left lower leg. (Claimant's Ex. C.[1]) In 1988, Dr. P. Giacomini and Dr. T.V. Stonger performed a second vein stripping of the left leg. (Claimant's Ex. B.) In 1991, Krzan experienced worsening pain in her legs due to her varicosities. She returned to Dr. Birkelo, who prescribed Naprosyn and referred her to Dr. Michael Trimble for venous injections aimed at symptomatic relief. (Claimant's Ex. A.) On September 26, 1991, she quit her job and has not worked since then. On September 30, 1991, Krzan reported that "she is unable to work because of discomfort in her legs LT > RT."[2]

         Shortly after Krzan quit work she filed a claim for occupational disease benefits based on her varicose veins. In December of 1991 and January of 1992, two of her physicians -- Dr. Birkelo and Dr. Michael R. Trimble -- submitted letters to the State Compensation Insurance Fund on her behalf[3] (Claimant's Exs. C and E.) The State Fund contested the claim and the Department thereafter initiated the medical panel procedures prescribed by Title 39, chap. 72, part 6.

         The Department designated Dr. John Diggs, a member of the Department's Occupational Disease Panel, to examine Krzan. Dr. Diggs conducted his examination on May 12, 1993. Following his examination, Dr. Diggs submitted his report to the Department. He found no relationship between Krzan's job and her varicose veins:

The cause of her history of chronic and recurrent varicose veins in the legs, especially the left leg, is unrelated to her history of work as a motel maid. The physical demands of her job at the War Bonnet Inn would have had a beneficial effect because she was not required to stand in one position for very long. Movement and the activity required for motel room cleaning would not be the cause of her chronic venous problem. There is no reasonable medical indication that her history of leg swelling or varicose veins treated with vein stripping and sclerosing injections was a result of working as a motel maid. . . .

(Birkelo Dep. Ex. 6 at 3.)

         Two of the physicians who treated Krzan over the years have weighed in on behalf of Krzan. Dr. Birkelo wrote a letter to the State Fund on January 22, 1992:

         Krystyna Krzan has been a patient of mine for many years. She has long been known to have venous insufficiency in her lower extremities. I believe that these symptoms have been aggravated by prolonged standing. She tells me that her work involves standing over long periods and I believe that this has aggravated the symptoms in her legs.

         (Claimant's Ex. C; emphasis added.) In a June 14, 1993 letter to Krzan's attorney, Dr. Birkelo attributed "60 percent" of her varicose vein problem to her work based "on the fact that more of her prolonged standing was done at work than would be done on her own time." (Defendant's Ex. G.) Dr. Michael Trimble, who purchased Dr. Birkelo's practice in 1989 (Birkelo Dep. 5), [4] treated claimant in 1991 with sclerosing injections of the veins (Birkelo Dep. 10; Claimant's Ex. E). On December 2, 1991, Dr. Trimble wrote to the State Fund:

Ms. Krzan has a problem with pain in her legs, secondary to chronic venous insufficiency. She has had previous vein stripping. She has had episodes of phlebitis. She has also had sclerotherapy of the veins to decrease her symptoms. The patient still has symptoms of discomfort in her leg when standing for prolonged periods. This may be related to her work, as the patient does stand for long periods of time on her feet at work. . . . I do not know what percent her work contributes to her leg problems, but I do think that prolonged standing would aggrevate [sic] her symptoms.

(Claimant's Ex. E; emphasis added.)

         In his deposition Dr. Birkelo testified that he related Krzan's varicose veins to her employment based on Krzan's report that she stood in one place for long periods of time. His testimony was in response to a question asking him to comment on Dr. Diggs' report:

Q. Have you seen the report from Dr. Diggs?
A. Yes, I saw that.
Q. In that he indicates that he doesn't think the varicose veins can be attributed to her job because of the walking she does, activity she does. Do you have any response to his statements?
A. The only response I have to that -- I thought he did a good work up from what I saw. I thought it was a complete evaluation. I was impressed that it was well done. The only thing I can say in response to that is most of what I stated was based on her statement to me, that she did a lot of standing, and I based it on that. And I assume that she walked around a lot, you know, from what I've seen when I've been in motels. I see the maids walking around. But she also indicated to me she did a lot of standing. I guess if you have the problem, I suppose the optimal position to be in is lying down with your legs elevated, if you have varicose veins and you're going to talk about the most optimal position you can assume for varicose veins -- not talking about leading your life, talking about optimal position for that -- I don't think many people would argue with that.
The second most beneficial position would be upright with elastic support and moving. The worst position you could be in would be upright and standing still. And I suppose what would be worse would be upright, standing still without external support. The next worse would be upright standing still with elastic support, and next worse would be sitting down with your feet dependent. And that's not a beneficial position at all for somebody with varicose veins.
A recliner isn't a beneficial position because then your bottom is the lowest point where gravity seeks its level and your heart is at the level of your ankles or your feet or something and your bottom is lower in between. So that's not beneficial, either, I guess. Does that answer make sense to you?

(Birkelo Dep. at 26-27.) Dr. Birkelo also conceded that his assignment of sixty percent (60%) of Krzan's disability to her employment was conjecture on his part:

. . . That was a pure guess on my part. I have no parameters to go by. I'm not a guy that reviews Workman's [sic] Comp. cases.

(Id. at 20-21.)

. . . So it was an attempt at an educated guess with a smile on my face as I said it because it is -- it's guess work.

(Id. at 24.)

         Under the Occupational Disease Act either the claimant or the insurer may ask for a further evaluation by a second member of the Occupational Disease Panel. § 39-72-602(2)(b), MCA. Neither Krzan nor the State Fund did so in this case. Therefore, on June 24, 1993, the Department issued an order determining that Krzan was not suffering from an occupational disease. See § 39-72-602(2)(c), MCA. Krzan then requested a hearing pursuant to section 39-72-611, MCA.

         A hearing was held on December 16, 1993. Krzan and a former co-worker testified. Dr. Birkelo's deposition testimony, along with a number of exhibits, were also submitted for consideration. Dr. Diggs' report was among the exhibits introduced at hearing. It was attached to Dr. Birkelo's deposition as Exhibit 6.

         On April 19, 1994, the Department's hearing examiner issued his Findings of Fact; Conclusions of Law; Order. He affirmed the Department's Initial Order denying benefits.

         Krzan filed her Notice of Appeal on May 19, 1994. On June 1, 1994, she filed an Amended Notice of Appeal in which she alleges that "the decision issued by the Department of Labor & Industry is clearly erroneous in view of the reliable, probative and substantial evidence in the entire record and characterized by an abuse of discretion or an unwarranted abuse of discretion."

         The matter has been fully briefed. Oral argument was held on October 27, 1994, and the matter was deemed submitted at that time.

         Standard of Review

         Section 39-72-612(2), MCA, provides for a direct appeal to the Workers' Compensation Court from the Department's final order in an occupational disease case. The section further provides:

. . . The judge may overrule the department only on the basis that the department's determination is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of ...

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