STEVEN K. BURGLUND Petitioner
LIBERTY MUTUAL NORTHWEST INSURANCE COMPANY Respondent/Insurer for UNITED PARCEL SERVICE Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Trial was held on claim for permanent partial disability
Claimant is entitled to benefits under 39-71-705, MCA (1983).
But see Burgland v. Liberty Mutual Northwest Ins.
Company, 1995 MTWCC 2A, where Court notes the
parties had requested analysis under section 39-71-703,
MCA (1983), not under section 39-71-705,
MCA (1983), and withdraws these Findings and
Conclusions, and Burglund v. Liberty Mutual Northwest Ins.
Co., 1995 MTWCC 25, where Court amends and
replaces these findings and conclusions.
trial in this matter was held on October 13, 15, and 22,
1993, in Kalispell, Montana, and December 1, 1993, in Helena,
Montana. Petitioner, Steven K. Burglund (claimant), was
present throughout and represented by Mr. Darrell Worm.
Respondent, Liberty Mutual Insurance Company (Liberty), was
represented by Mr. Larry Jones.
at trial and by deposition: Claimant testified on his
own behalf. Randy Kenyon, Jerry Auger, Mitch Noack, Kim
Stevens, Bud Howe, Patrick Herron and Harold Wiltshire also
testified. The depositions of Tim Tracy, O.T., Dr. Henry
Gary, Dr. Alfred Swanberg and Dr. James Mahnke were admitted
for the Court's consideration.
Exhibits 1 through 3, 5, 6, 11 through 37, 41 through 48, 57
through 66 and 69 through 73 were admitted by agreement of
the parties. Exhibits 4, 8 through 10, 38 through 40 and 75
were admitted without objection. Exhibit 68 was not offered.
Exhibits 49 through 56, 77 and 81 were admitted over
objection. Exhibits 7, 67, 76, 78 and 80 were withdrawn.
Exhibits 74 and 79 were admitted for demonstrative purposes
presented: Claimant seeks permanent partial disability
benefits pursuant to section 39-71-705 through 708, MCA
(1983). He also requests attorney fees and a penalty.
citations: Citations to the transcript of the Kalispell
proceedings are in the usual form of "Tr. at ."
Citations to the transcript of the Helena proceedings appear
as "HLN Tr. at _ ."
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:
Claimant's date of birth is April 22, 1955, and he is
presently thirty-nine years old.
Claimant graduated from high school. He also attended an
electronics institute in the early 1970s. (Tr. at 35.)
the past fifteen years claimant has been employed by United
Parcel Service (UPS) as a package car driver. His duties
throughout his employment have included deliveries and
pick-ups of UPS packages, as well as
"sort-and-load" of packages at the Kalispell UPS
Center. Claimant's "sort-and-load" duties are
preformed at the beginning of his work shift and involve the
lifting of packages off a conveyer belt and transferring them
several feet to two or three delivery trucks. (Tr. at
147-153.) This job typically lasts from two to two and
one-half hours. (Id. at 122, 153.) Claimant then
drives a delivery route in a "package car,"
(Id. at 206-207) delivering and picking up packages
on that route. Packages weigh up to seventy pounds but the
"average" package weighs far less, approximately
fifteen to twenty-five pounds. (Id. at 229.) On his
present route packages in the fifty to seventy pound range
constitute only eight to ten percent of all packages
delivered by claimant. (Id. at 158.) In 1991
claimant handled five hundred to six hundred packages on
sort-and-load, and another three hundred to four hundred and
fifty packages on his route. (Id. at 230-31.)
Prior to working for UPS claimant installed security
equipment for a year or two and was a parts clerk at several
auto supply stores.
February 14, 1984, claimant suffered an industrial injury
arising out of and in the course of his employment with UPS.
He injured his back when he fell from a platform.
the time of claimant's 1984 injury, UPS was insured by
Liberty Mutual Northwest Insurance Company (Liberty). Liberty
accepted liability for the claim in this matter and has paid
various compensation and medical benefits.
Claimant was first treated for injuries on February 29, 1984,
by Dr. Alfred V. Swanberg, who specializes in internal
medicine. (Swanberg Dep. at 6.) Following his initial
examination of claimant, Dr. Swanberg diagnosed claimant as
suffering from bruised back muscles. (Id. at 14-16.)
The doctor took claimant off work for one week and prescribed
Flexeril, a muscle relaxer. (Id. at 15.)
March 7, 1984, Dr. Swanberg re-examined claimant. At that
time he diagnosed claimant as suffering from
"LUMBOSACRAL STRAIN, CONTUSION OF LOW BACK."
(Id. at 17 and Dep. Exhibit (unnumbered);
capitalization in the original.) Claimant did not have
radicular pain and Dr. Swanberg did not believe that he had
suffered a disc injury or a vertebral fracture. (Id.
at 20.) He expected claimant's condition to resolve
within twelve weeks. (Id. at 17-20.)
Between February 14, 1984 and March 7, 1984, claimant was
also treated by a chiropractor. (Id. Exhibit
March 7, 1984, claimant told Dr. Swanberg that he was feeling
better and wanted to return to work on March 12, 1984.
(Id. at 17.) Dr. Swanberg approved a return to work
and told claimant to contact him if he had any continuing
back difficulties. (Id.) Claimant did not thereafter
seek treatment from Dr. Swanberg for his low-back condition.
After claimant's return to work in 1984, he continued
working as a full-time package car driver. (Tr. at 211.) He
either returned to a route in the East Kalispell metropolitan
area, hereinafter called the "[E]ast Kalispell
[R]oute", or shortly after his return he transferred to
the East Kalispell Route. (Id.) The claimant was not
sure whether he was assigned that route before or after his
injury. (Id.) The route was claimant's first
permanent assignment; prior to that time he had been filling
in for other drivers on vacation. (Id.)
Following his return to work claimant continued to experience
intermittent low-back pain.
February 16, 1988, claimant was examined by Dr. Henry Gary,
who is a neurosurgeon. At that time the claimant reported
that he had been experiencing low-back pain intermittently
for two years, but his pain had increased since October of
1987. Since October his pain had extended into his buttocks
and right leg to about the knee. (Gary Dep. of July 13, 1993
at 8-9 and Ex. 1.) Dr. Gary diagnosed claimant's
condition as a herniated disc at the L5-S1 level.
(Id. at 9.)
Between February 1988 and February 1991, claimant's back
and leg pain increased. (Id. at 33.)
February 18, 1991, Dr. Gary performed a lumbar laminotomy and
a foramenoto-my at the L5-S1 vertebral level. (Id.
at 29 and Ex. 6.)
Based on the following evidence, the Court is persuaded that
claimant's herniated disc and February 1991 surgery were
related to his 1984 injury:
a. On March 5, 1991, Dr. Gary wrote a letter to Liberty in
which he stated, "It is my opinion that Mr.
Burglund's herniated disc was a result of his injury of
February 14, 1984. I further feel that he would most likely
have had to eventually to [sic] come to surgery regardless of
the type of work he performed." (Ex. 62.) Dr. Gary
reiterated this opinion in his deposition. (Gary Dep. of
September 29, 1993 at 6.)
b. Dr. Mahnke testified at his deposition that he agrees with
that opinion. (Mahnke Dep. at 12.) Dr. Mahnke also opined
that Dr. Swanberg's initial diagnosis of a lumbosacral
strain is consistent with Dr. Gary's later diagnosis of a
bulging and then ruptured disc at the L5-S1 level.
c. Dr. Swanberg was not asked to give an opinion on whether
claimant's 1984 injury caused his herniated disc.
d. The opinions of Dr. Gary and Dr. Mahnke were not
Following his February 18, 1991 surgery, the claimant was off
work until June 1, 1991, at which time he returned to work as
a package car driver. Both Dr. Gary and Dr. Swanberg released
claimant to return to work without any restrictions. (Tr. at
130-131, 215-217, and 392.)
Claimant returned to his East Kalispell Route and to his
nature and extent of claimant's post-surgery physical
limitations are central to the present dispute. The Court has
evaluated both the medical and non-medical evidence in
determining claimant's limitations.
July 16, 1992, Dr. Gary wrote a letter regarding
claimant's impairment and medical restrictions. The
letter was in response to an ...