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Beckers v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

February 8, 1995

SHANE LEONARD BECKERS Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for VALLEY EXCAVATION Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Claimant suffering neck and arm problems following 1987 CAT rollover sought ongoing medical coverage and indemnity benefits. Pointing to information about subsequent temporary aggravations, insurer denied coverage.

         Held: Where medical evidence linked claimant's ongoing need for treatment for his neck condition to industrial injuries, insurer's reference to subsequent temporary aggravations of claimant's condition did not sever its liability. Indeed, insurer's denial of liability in absence of medical opinion that later incidents constituted permanent aggravation was unreasonable, justifying imposition of penalty and attorneys fees.

         Topics:

Causation: Medical Condition. Where medical evidence linked claimant's ongoing need for treatment for his neck condition to industrial injuries, insurer's reference to subsequent temporary aggravations of claimant's condition did not sever its liability. Indeed, insurer's denial of liability in absence of medical opinion that later incidents constituted permanent aggravation was unreasonable, justifying imposition of penalty and attorneys fees.
Benefits: Medical Benefits: Surgery. Where medical evidence linked claimant's ongoing need for treatment for his neck condition to industrial injuries, insurer's reference to subsequent temporary aggravations of claimant's condition did not sever its liability. Indeed, insurer's denial of liability in absence of medical opinion that later incidents constituted permanent aggravation was unreasonable, justifying imposition of penalty and attorneys fees.
Penalty: Insurers. Where insurer offered no medical opinion demonstrating that any post-injury incidents permanently aggravated claimant's compensa-ble neck condition, its refusal to pay medical and indemnity benefits was unreasonable. The insurer neither sought not obtained an independent medical opinion, choosing rather to disregard and second guess the medical opinions which had been furnished to it.
Attorneys Fees: Reasonableness of Insurers. Where insurer offered no medical opinion demonstrating that any post-injury incidents permanently aggravated claimant's compensable neck condition, its refusal to pay medical and indemnity benefits was unreasonable. The insurer neither sought not obtained an independent medical opinion, choosing rather to disregard and second guess the medical opinions which had been furnished to it.

         The trial in this matter was held on January 13, 1995, in Helena, Montana. Petitioner, Shane Leonard Beckers (claimant), was present and represented by attorney Ms. Janice S. VanRiper. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. The claimant testified on his own behalf. Diane Pedersen also testified. The depositions of Dr. Max Iverson, Dr. Ronald Covey and Dr. Kenneth Stein were submitted for the Court's consideration. Exhibits 1 through 3 were admitted by stipulation of the parties. Exhibit 4 was admitted over the State Fund's objections.

         Issues: The issue presented in this case is whether the claimant's neck and arm conditions were caused by his industrial accident of July 13, 1987. At stake are wage loss compensation benefits and medical expenses. Claimant also seeks attorney fees and a penalty.

         Bench Ruling

         At the close of trial the Court ruled in favor of claimant on all issues. The Court held that the claimant's current neck and right arm conditions were caused by his 1987 industrial injury and that the State Fund is liable for payment of medical expenses incurred by claimant for treatment of those conditions and for temporary total disability benefits commencing in 1994. It further determined that the State Fund's denial of these benefits was unreasonable and ordered it to pay attorney fees and a penalty.

         The rationale of the Court's decision was provided orally to the parties. The following Findings of Fact, Conclusions of Law and Judgment more fully reflect the Court's decision.

         FINDINGS OF FACT

         1. Claimant is 31 years old and lives in Helena, Montana.

         2. As a chronological aid to the reader of this decision, the following is a summary of claimant's work history and the places he has lived since 1984.

1984 - 9/87

Worked for Valley Excavating, Helena, Montana.

9/87 - 6/88

Resided in Moses Lake, Washington.

7/88 - 8/90

Returned to Montana. Initially worked on a ranch and later returned to Valley Excavating. 8/90 - 10/91 Resided in Alabama during flight training.

10/91 - 7/92

Returned to Montana. Worked for Valley Excavating and later for Poverty Well Service. He was also unemployed for various periods.

10/92 - 2/93

Returned to Alabama for additional pilot training.

3/93 - 4/27/93

Visited parents in Miles City, Montana.

4/27/93 - 5/1/93

Moved to Boulder, Montana.

5/1/93 - 1/94

Worked for Pegasus Gold near Boulder, Montana.

1/4/94

Claimant quit work at Pegasus Gold at Dr. Iverson's direction.

         3. In addition to his civilian employment, the claimant has served in the Montana National Guard since 1986. He began his service in the Air National Guard but later on transferred to the Army National Guard. He has been trained as a helicopter pilot.

         4. The Court finds claimant to be a credible witness.

         5. On March 28, 1986, claimant suffered an industrial injury while working for Valley Excavation. (Ex. 2-R.) His job duties included digging basements, grading roads, loading gravel and equipment repair and maintenance. At the time of his injury he was driving a CAT on a side hill. He backed over a rock, which caused the CAT to tip over. Claimant had his seat belt on at the time and he landed on the ground. The initial impact was to his right arm and shoulder. (Ex. 2-R at 46.)

         6. Following claimant's 1986 industrial injury, he was treated for neck, back, right shoulder and right arm complaints by Dr. Michael Pardis, a local chiropractor. (Ex. 2-R at 31-46.) Claimant's condition improved and his treatment ended December 29, 1986. (Id.) His 1986 industrial accident did not result in permanent injuries or disability.

         7. On July 13, 1987, while still working for Valley Excavation, claimant suffered a second industrial injury. (Uncontested Fact No. 3(a).) He was welding on the upper deck of a gravel screening plant. A cable broke and claimant fell several feet onto the screening plant. He then fell several more feet to the ground. He hit the ground with his head, right shoulder and neck.

         8. Following the accident claimant experienced sharp pain in the right side of his neck and aching in his right shoulder and arm.

         9. Following the 1987 accident, claimant was initially treated by Dr. Pardis. Claimant's testimony and medical records from Dr. Pardis show that his primary symptoms were cervical pain and pain in the right shoulder and arm. (Ex. 2-R at 1-2.)

         10. Claimant moved to Moses Lake, Washington in August of 1987, where Dr. Ronald Covey, a chiropractor, picked up his treatment. Dr. Covey treated claimant from September of 1987, until June of 1988. (Ex. 2-H.) On June 7, 1988, he wrote a letter to the State Fund concerning claimant's condition: "The condition of the above-named claimant has shown a positive response to treatment. Mr. Beckers has reached pre-injury status and was released from care effective 6-7-88." (Id. at 2.)

         11. Notwithstanding his June 7, 1988 report, Dr. Covey treated claimant on two more occasions in June for his neck complaints. (Covey Dep. at 17-18.) At that time, claimant had returned to National Guard duty. The doctor viewed claimant's Guard duties as precipitating the onset of renewed symptoms and, therefore, did not directly attribute the symptoms to claimant's prior injuries. (Id. at 17.) However, Dr. Covey testified in his deposition that "had I continued to treat this man and found that he continued to experience symptoms related to these same areas of the spine, my opinion could be different." (Id. at 18.) When asked to elaborate, he said further:

Well, if we found that we had a continuation of the same type of problem and it carried on for another month or two or three, then I'm not sure that Guard duty activities would have been the total cause of the problem. I would have then been more of the feeling that it could have related to his industrial accident given the fact that there was still a residual weakness in the soft tissue.

(Covey Dep. at 18.) In fact, the claimant did continue to seek treatment for the same symptoms after June of 1988.

         12. Claimant moved back to Helena in July 1988. He again sought treatment for neck pain. (Ex. 2-R at 2.) His first treatment was by Dr. Pardis on October 19, 1988. (Ex. 2-R at 22.) Dr. Pardis continued to treat claimant until August of 1990. (Ex. 2-R.) Although most of Dr. Pardis' office notes are illegible, the word "neck" is legible in his October 19, 1988 note (Ex. 2-R at 22) and Dr. Pardis confirmed in a December 8, 1993 letter that treatments from 1988 to 1990 "were for complaints of the neck and upper back pain" (Id. at 2.) There was no regularity to the treatments. There was a two and a half month interval ...


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