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Wilson v. Liberty Mutual Fire Insurance

Court of Workers Compensation of Montana

February 3, 1995

GERARD WILSON Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE Respondent/Insurer for UNITED PARCEL SERVICE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: Claimant sought permanent partial disability benefits for his allegedly disabling back condition based on injuries suffered while working for UPS in 1988 and 1986. While one doctor linked claimant's ongoing condition to the earlier injuries, other medical evidence disagreed. Claimant's own testimony was not credited by the Court.

         Held: Under section 39-71-116(12), MCA (1985), permanent partial disability is defined as a condition resulting from an injury as defined in the Act. The 1987 Act defines permanent partial disability as involving a medically determined physical restriction as a result of an injury within the Act. While claimant is required under both the 1985 and 1987 Workers' Compensation Acts to show that his disabling condition results from his industrial accident, the credible evidence convinced the Court that claimants 1988 and 1986 back injuries were temporary strains. Thus, claimant is not entitled to further permanent partial disability benefits for a back condition commencing in 1993.

         Topics:

Benefits: Permanent Partial Disability: Generally. Where claimant is required under both the 1985 and 1987 Workers' Compensation Acts to show that his disabling condition results from his industrial accident, and the credible evidence convinced the Court that claimants 1988 and 1986 back injuries were temporary strains, he is not entitled to further permanent partial disability benefits for a back condition commencing in 1993.
Causation: Medical. Where claimant is required under both the 1985 and 1987 Workers' Compensation Acts to show that his disabling condition results from his industrial accident, and the credible evidence convinced the Court that claimants 1988 and 1986 back injuries were temporary strains, he is not entitled to further permanent partial disability benefits for a back condition commencing in 1993.

         The trial in this matter was held on August 30, 1994, in Helena, Montana. The petitioner, Gerard Wilson (claimant), was present and represented by Mr. Richard J. Pyfer. Respondent, Liberty Mutual Fire Insurance Company (Liberty), was represented by Mr. Larry W. Jones. Claimant testified on his own behalf. Shawn Briggs, Maureen Wilson, Curt York, Tom Beneventi, Gregg Ford and Shelley Porch also testified. The depositions of Dr. Allen Weinert, Stan Colton, Ron Kenney, Dr. Robert Chambers, and Scott Oleson were submitted for the Court's consideration. Exhibits 1-4, 14, 16-34, 36-37, 39-42 and 44-47 were admitted by stipulation of the parties. Exhibits 35 and 38 were withdrawn. Exhibit 43 was refused. Exhibit 15 was admitted in its incomplete state. Exhibits 5-13 were admitted for the limited purpose of showing a sequence of events.

         Issues presented: Claimant seeks permanent partial disability benefits with respect to back injuries of April 16, 1986 and December 27, 1988. He also asks for an award of attorney fees and a penalty.

         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. At the time of trial, claimant was 36 years old. He has a high school education. (Tr. at 106.)

         Work History

         2. Claimant began working for United Parcel Service (UPS) in 1979, as a part-time "porter." (Id. at 51.) In 1981, he became a full-time package-car driver for UPS. (Id. at 52.) He continued to work for UPS until March 6, 1990, when he quit his job in a fit of anger. His work history since that time is as follows:

a. Delivery truck driver for Sweetheart Bakery from April 1, 1990 to November 1, 1990. (Id. at 153.)
b. Attendant at Town Pump from November 1990 to October 1991. (Id. at 153.)
c. Delivery driver for Airborne Express from September 1991 to October 15, 1992. (Id. at 153.)
d. Bus driver for Treasure State Transit from November 1991 until May 1993. (Id. at 155-56.)
e. Stocker for Wal-Mart from October 1992 until June 1, 1993. (Id. at 102-3, 153.)
f. Truck driver for Allen Oil from June 1, 1993 to present.

         April 16, 1986 Back Injury and Treatment

         3. On April 16, 1986, claimant suffered a back injury while working for UPS. He lifted a package and felt "a major pop" in his "upper back." (Id. at 55.) He was unable to finish his work-shift.

         4. At the time of claimant's April 1986 injury, UPS was insured by Liberty, which accepted liability for his claim.

         5. On April 17, 1986, claimant was examined by Dr. Kenneth Carpenter, an orthopedic surgeon. Dr. Carpenter noted tenderness over the area of the T10-T11 vertebrae. His initial impression was that claimant had a tear of the interspinous ligament and possible muscle avulsion. (Ex. 45 at 24.)

         6. Based on the course of claimant's subsequent recovery, Dr. Carpenter's initial diagnosis is doubtful. Dr. Carpenter did not testify. However, Dr. Robert Chambers, an orthopedic surgeon who conducted an independent medical examination of claimant in 1993, made the following observation in his report:

Mr. Wilson confirms the initial medical record with respect to his 1986 injury, including the fact that his pain was completely relieved by 28 April, 12 days after his initial injury. This would suggest that Dr. Carpenter's diagosis [sic] of a tear of the interspinous ligaments, and his concern with respect to a possible muscle avulsion, was incorrect.

(Ex. 44.)

         7. In any event, Dr. Carpenter prescribed physical therapy and an exercise program and released claimant to do light, sedentary work but no lifting. (Ex. 45 at 26.)

         8. Eleven days later, on April 28, 1986, claimant told Dr. Carpenter that he was doing better and that his pain was gone. (Ex. 45 at 24; Ex. 44.) Dr. Carpenter released him "to return to full duties." (Ex. 45 at 24.)

         9. On April 29, 1986, claimant returned to work. After an hour or less, he again experienced pain in his upper back and had to cease work. (Tr. at 55; Ex. 45 at 5, 8 and 14.)

         10. Claimant was examined by Dr. Michael Strekall, a family practitioner, later the same day (April 29th). Dr. Strekall detected muscle spasms in the thoracic area and diagnosed "[m]uscle strain, aggrevated [sic] from previous injury." (Ex. 45 at 8.) Dr. Strekall initially prescribed bed rest for several days but then released claimant to return to light-duty, sedentary work after he learned that claimant attended a softball game on the evening of April 29th. (Ex. 45 at 6, 8 and 13.)

         11. On May 1, 1986, claimant was examined by Dr. William Batey, a family physician who practices with Dr. Strekall. Dr. Batey noted muscle spasm and diagnosed "acute back strain." He approved claimant for light-duty work as long as claimant could work in a standing position. (Chambers Dep. Ex.: Dr. Batey's record of May 1, 1986.)

         12. On May 2, 1986, claimant was again examined by Dr. Strekall, who noted that claimant was improving and that he no longer had muscle spasms. Dr. Strekall confirmed his original diagnosis of thoracic muscle strain, which he characterized as "mild to moderate and improving." (Ex. 45 at 7.)

         13. Claimant was also seen by Dr. Carpenter on May 2nd. Dr. Carpenter confirmed the back strain diagnosis of Drs. Strekall and Batey, prescribed physical therapy, rest, and Naproxyn (a non-steroidal anti-inflammatory drug), and took claimant off work for five (5) days. (Id. at 24-5.)

         14. On May 7, 1986, claimant returned to Dr. Carpenter. (Id. at 25.) Dr. Carpenter noted a significant decrease in claimant's pain. (Id.) He also noted that physical therapy was benefitting claimant and prescribed additional therapy. (Id.) He released claimant to return to light-duty work on May 12, 1986.

         15. On May 21, 1986, Dr. Carpenter saw claimant for a final time with respect to the 1986 injury. (Ex. 45 at 25.) Dr. Carpenter's note for that day reads: "He is doing well at this time. He is almost pain free. The therapist needs to work with him on some more vigorous strengthening for one week, and then he'll return to work at that time." (Id.)

         16. On May 30, 1986, Dr. Carpenter released claimant to return to work full time (Id. at 25) and claimant returned to his full duties as a package car driver.

         Aftermath of 1986 Injury

         17. Claimant did not seek treatment for any back complaints between May 30, 1986 and his second injury, a period of two and one half years. During that interim, claimant underwent a United States Department of Transportation (DOT) physical examination. The examination took place on April 20, 1988. In response to a health history questionnaire, which asked claimant inter alia whether he had ever suffered from back trouble, claimant reported that he had. (Id. at 19.) However, in follow-up questions by the examining physician, claimant reported with respect to his back that there was "nothing on going." (Id. at 16.)

         December 27, 1988 Back Injury and Treatment

         18. On December 27, 1988, claimant suffered a second back injury when he slipped and fell on a UPS customer's slippery driveway. He landed on his back and hit his head and elbows. (Tr. 62; Ex. 45 at 3.)

         19. Liberty was still UPS's insurer at the time of the second injury and accepted liability for the claim.

         20. On December 28, 1988, claimant took off work and sought treatment from Dr. Batey. (Ex. 45 at 3 and 10.) Upon examination, Dr. Batey noted some tenderness in the lower lumbar region. However, he also noted that claimant did not appear to be in any significant amount of pain. (Id. at 3.) He prescribed "[r]est, heat and Motrin for the next few 2-3 days" and indicated that claimant could then return to work "if he feels like he is able." (Id.)

         21. Dr. Batey again examined claimant on January 4, 1989. (Id. at 3.) Claimant told Dr. Batey that his pain had persisted but that he had returned to work. (Id.) The doctor diagnosed lumbar strain and prescribed Feldene, an anti-inflammatory and analgesic drug. (Id.) Dr. Batey also indicated his ...


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