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Frisbie v. Champion International Corp.

Court of Workers Compensation of Montana

February 10, 1995

GEORGE FRISBIE Petitioner
v.
CHAMPION INTERNATIONAL CORPORATION Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Fifty-two-year-old mill worker sought permanent total disability benefits following back injury. In part, he claimed that his work injury exacerbated his drinking problem, but his primary contention was that disabling pain prevented him from all employment.

         Held: Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation. Based on the testimony of two doctors that claimant was stable and should be able to work if he stopped drinking, and that of a vocational consultant who identified several typical available jobs within claimant's physical restrictions, claimant was not permanently totally disabled. The Court did believe that claimant's drinking exacerbated his perception of his pain, but did not find that the injury caused or aggravated his alcohol abuse.

         Topics:

Benefits: Permanent Total Disability Benefits: Generally. Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation. Based on the testimony of two doctors that claimant was stable and should be able to work if he stopped drinking, and that of a vocational consultant who identified several typical available jobs within claimant's physical restrictions, claimant was not permanently totally disabled.
Benefits: Permanent Total Disability Benefits: Pain as Disabling. Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation.
Pain. Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation.
Witnesses: Credibility. Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation.
Physicians: Conflicting Evidence. Though treating physician believed claimant's pain was disabling and that his injury may have exacerbated his drinking problem, the Court found more convincing the testimony of two other physicians who believed claimant was capable of working, one noting non-organic pain behavior. This was based on the greater expertise of the latter two doctors and on the Court's observation of one of the doctor's testimony. A treating physician's opinion is not conclusively presumed to be correct; if it were, the factual inquiry conducted by the Court would be superfluous.
Proof: Conflicting Evidence: Medical. Though treating physician believed claimant's pain was disabling and that his injury may have exacerbated his drinking problem, the Court found more convincing the testimony of two other physicians who believed claimant was capable of working, one noting non-organic pain behavior. This was based on the greater expertise of the latter two doctors and on the Court's observation of one of the doctor's testimony. A treating physician's opinion is not conclusively presumed to be correct; if it were, the factual inquiry conducted by the Court would be superfluous.
Physicians: Treating Physician: Weight of Opinion. Though treating physician believed claimant's pain was disabling and that his injury may have exacerbated his drinking problem, the Court found more convincing the testimony of two other physicians who believed claimant was capable of working, one noting non-organic pain behavior. This was based on the greater expertise of the latter two doctors and on the Court's observation of one of the doctor's testimony. A treating physician's opinion is not conclusively presumed to be correct; if it were, the factual inquiry conducted by the Court would be superfluous.
Medical Conditions: Alcoholism. Where claimant's medical records are replete with reference to pre-injury alcohol abuse, and a physician credibly testified that claimant's pattern of drinking was the same before and after his work injury, claimant's alcohol abuse was neither caused nor aggravated by his back injury. While the Court did believe claimant's use of alcohol worsened his experience of pain, this was not the responsibility of the insurer where the injury did not cause or worsen claimant's alcohol abuse.

         The trial in this matter was held on July 12, 1994, in Missoula, Montana. Petitioner, George Frisbie (claimant), was present and represented by Mr. Steve Fletcher. Respondent, Champion International Corporation (Champion), was represented by Mr. Bradley J. Luck. Claimant, Michael Lahey, M.D., James Wemple, Ph.D., Jerry E. Davis, and Margot Luckman-Hart testified. Additionally, the depositions of Aaron W. Sable, M.D., Jerry Davis, George Frisbie, and Donald Nevin, M.D. were submitted for the Court's consideration. Exhibits 1 and 3 through 24, were admitted by stipulation. Exhibit 2 was withdrawn. Exhibit 25 was objected to by Mr. Luck and admitted for limited purposes.

         Issues Presented: Claimant asks the Court to determine that he is permanently totally disabled. The insurer argues that claimant is permanently partially disabled.

         Having considered the PRETRIAL ORDER, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. At the time of trial claimant was fifty-two years old. He is a high school graduate and attended one year of college. (Ex. 15.)

         2. Claimant worked at Champion for at least twenty (20) years prior to an industrial accident which occurred on September 22, 1992. He worked for a period of time as a wagoner driver, but primarily he was a debarker operator. Before going to work for Champion he was employed by the Anaconda Company for approximately ten years, working in the box factory. He operated a saw and made small wood products. (Frisbie Dep. at 19-21.)

         3. On September 22, 1992, claimant hurt his low back while attempting to move a jammed log with a Pevee and the "chain" started up. (Id. at 30.) He finished his shift, but the next day he experienced pain in his lower back and down his legs and was unable to urinate. He was hospitalized the following day. (Id. at 30-31.)

         4. At the time of the accident Champion was self-insured. It accepted liability and has been paying claimant temporary total disability benefits.

         5. The claimant contends that he has now reached maximum healing and is permanently totally disabled. Champion agrees that he is at maximum healing but contends that he is only permanently partially disabled on account of his injury.

         Preinjury Medical Problems

         6. Claimant suffers from a number of physical conditions that preexist his industrial injury. As reported by the claimant, those conditions include hypertension, heart problems, cirrhosis of the liver, fainting/blackout spells and alcoholism. (Id. at 10-12.) He also suffers from a seizure disorder which he believes was caused or aggravated by his industrial injury. (Id. at 14-15.) This contention has apparently been abandoned. It is not argued in the CLAIMANT'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT, and in any event is not supported by medical evidence.

         7. In September of 1976, the claimant was hospitalized for twenty days for low-back pain . (Ex. 6, A48-80.) Medical records indicate that in 1987 he reported pain radiating into both legs and into his groin following an incident while cutting wood. He received chiropractic care for this incident. (Id. at I2-18; Tr. at 26.) In 1992 he fell at work, breaking some ribs. (Tr. at 26-27.) Despite the medical records verifying these incidents, the claimant testified at his deposition and again at trial that he had no back problems prior to his injury.

         8. In the months immediately preceding his industrial accident, claimant missed work on a number of occasions. He missed work due to episodes of light-headedness, dizziness, blackouts and falling. (Ex. 6 at B7-10; L1-4; O1-3.) He was hospitalized in June 1992 for blackouts, kidney and liver problems. (Nevin Dep. at 13-14.) Notwithstanding this history, claimant initially testified at trial that he had not missed work because of physical problems and that he could not remember being off work in the weeks prior to the industrial injury. (Tr. at 31, 34.)

         Injury and Treatment

         9. On September 23, 1992, the day after the industrial injury, the claimant was admitted to St. Patrick Hospital with complaints of low-back pain radiating down both legs and an inability to urinate. (Ex. 6 at A163.) A CT scan done at this time revealed "[a]t L4-5, the patient has central bulge/herniation of the disc." (Id. A173.)

         10. Dr. David Nevin, a family practitioner (Ex. 6 at B37), was claimant's treating physician during the September hospitalization. At Dr. Nevin's request, Dr. D.L. Woolley provided a consultation concerning claimant's back condition. Dr. Woolley concluded that claimant's "chances for success with surgery are extremely questionable." (Ex. 6 ...


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