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Pulliam v. Liberty Mutual Insurance Co.

Court of Workers Compensation of Montana

December 22, 1994

JANNA PULLIAM Petitioner
v.
LIBERTY MUTUAL INSURANCE COMPANY Respondent/Insurer for HENNESSY'S DEPARTMENT STORE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         Summary: Parties disputed whether claimant's 1991 and 1993 back surgeries were related to her 1988 back injury while unloading boxes for Hennessy's Department Store.

         Held: Claimant's 1990 fall and resulting disc herniation, which led to the surgeries, resulted from her leg giving way, which was a condition caused by her industrial accident. In addition, claimant's physician opined that her industrial injury weakened her back, making her subject to the aggravations leading to the surgery. The insurer is liable for the surgeries and for claimant's condition.

         Topics:

         Injury and Accident: Aggravation: Generally. Where claimant's 1990 fall and resulting disc herniation resulted from her leg giving way, which was a condition caused by her 1988 industrial accident, and her physician opined that her industrial injury weakened her back making her susceptible to later injury, the insurer is liable for 1991 and 1993 surgeries caused by the aggravation.

         Benefits: Medical Benefits: Surgery. Where claimant's 1990 fall and resulting disc herniation resulted from her leg giving way, which was a condition caused by her 1988 industrial accident, and her physician opined that her industrial injury weakened her back making her susceptible to later injury, the insurer is liable for 1991 and 1993 surgeries caused by the aggravation.

         The trial in this matter was held on December 1, 1994, in Helena, Montana. Petitioner, Janna Pulliam (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent, Liberty Mutual Insurance Company (Liberty), was represented by Mr. Larry W. Jones. Claimant testified on her own behalf. Michael K. Stevens and Loren Hartman also testified. The depositions of Dr. Brooke Hunter and Dr. Allen Weinert were submitted for the Court's consideration. Exhibits 1 through 7 were admitted.

         A transcript of the proceedings has not been submitted to the Court.

         Issues Presented: The issue in this case is whether Liberty is liable for back surgeries performed in 1991 and 1993. Liberty contends that the surgeries were unrelated to claimant's March 16, 1988 industrial accident.

         Briefs: Prior to trial the claimant filed a Trial Brief and Liberty filed proposed findings of fact and conclusions of law. Both parties agree that post-trial briefing is unnecessary.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses appearing at trial, the exhibits, the depositions, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. On March 16, 1988, claimant suffered an industrial injury while working for Hennessy's Department Store (Hennessy's) of Helena, Montana. She was unpacking a box of towels when she felt a pop in her back.

         2. Claimant was thereafter diagnosed as suffering a small central herniated disc at the L4-5 vertebral level. (Ex. 3 at 1.) On November 4, 1988, Dr. Brooke Hunter, an orthopedic surgeon, performed a hemilaminectomy and diskectomy at the L4-5 level. (Ex. 3 at 2.) By the time of the surgery, the disc herniation had become larger and was prominent to the right side. (Ex. 3 at 5.)

         3. Liberty accepted liability for claimant's injury and paid various compensation and medical benefits, including the cost of claimant's November 4, 1988 surgery.

         4. In July of 1990, claimant settled her claim with Liberty for the sum of $5, 500.00. The settlement agreement reserved medical benefits for the claimant.

         5. On December 14, 1990, claimant fell near her mailbox, landing on her "rear end." (Pulliam Dep. at 17.)

         6. Claimant experienced severe pain in her low back, radiating into her legs, and on December 15, 1990, she sought treatment at the St. Peter's Hospital Emergency Room in Helena. (Ex. 3 at 12-13.) She was examined by Dr. Hunter on December 18, 1990, and he prescribed physical therapy. (Ex. 2 at 14; Ex. 3 at 14.) Claimant was thereafter diagnosed as suffering from a herniated disc at the L5-S1 vertebral level. (Ex. 3 at 20; Ex. 2 at 15.) On April 22, 1991, Dr. Hunter performed a hemilaminectomy and diskectomy at the L5-S1 level.

         7. In 1993 claimant suffered a recurrent herniation of the remaining disc material at the L5-S1 level. On November 17, 1993, claimant underwent a second hemilaminectomy and diskectomy at the L5-S1 level. (Ex. 3 at 25.)

         8. Liberty has denied liability for the second and third surgeries on the basis that they were unrelated to the industrial injury and they were ...


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