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Irish v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

April 10, 1995

KEVIN IRISH Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: Parties disputed whether claimant's current physical problems are related to industrial injury occurring June 13, 1977. Petitioner also argued that insurer is liable for temporary total disability benefits back to June 27, 1977, due to insurer's alleged failure to give 15 day notice of termination of benefits.

         Held: Where claimant returned to work within a couple of weeks of his injury, and has worked continuously, section 92-615, R.C.M., 1947 (1977) does not operate to require retroactive benefits to claimant for failure to give notice of termination of biweekly benefits. Where claimant received only one check for benefits along with notice that the claim was accepted and this was claimant's benefit entitlement, there was no interruption or cessation of ongoing benefits to trigger the obligation argued by claimant. Where medical evidence along with claimant's testimony indicates that his current condition results from the 1977 work injury, he is entitled to medical expenses related to that condition.

         Topics:

Trial: Submission on Record. In lieu of considering case on cross-motions for summary judgment, with stipulation of the parties, the Workers' Compensation Court issued Findings of Fact, Conclusions of Law and Judgment based on review of entire record, without live testimony of witnesses or trial proceedings.
Summary Judgment: Submission on Record in Lieu Of. In lieu of considering case on cross-motions for summary judgment, with stipulation of the parties, the Workers' Compensation Court issued Findings of Fact, Conclusions of Law and Judgment based on review of entire record, without live testimony of witnesses or trial proceedings.
Causation: Medical Condition. Where medical evidence along with claimant's testimony indicates that his current condition results from the 1977 work injury, he is entitled to medical expenses related to that condition.
Injury and Accident: Natural Progression. Where medical evidence along with claimant's testimony indicates that his current condition results from the 1977 work injury, he is entitled to medical expenses related to that condition.
Benefits: Termination of Benefits: Return to Work. Where claimant returned to work within a couple of weeks of his injury, and has worked continuously, section 92-615, R.C.M., 1947 (1977) does not operate to require retroactive benefits to claimant for failure to give notice of termination of biweekly benefits. Where claimant received only one check for benefits along with notice that the claim was accepted and this was claimant's benefit entitlement, there was no interruption or cessation of ongoing benefits to trigger the obligation argued by claimant.

         This matter was initially presented to the Court on cross-motions for summary judgment. Subsequently, on March 13, 1995, a Stipulation was filed stating that the case could be decided based on the current record, including all depositions. As a result of the stipulation between the parties the decision in this matter will be issued as Findings Of Fact And Conclusions Of Law.

         Nature of Dispute

         The issues presented for decision are: (1) whether the petitioner (claimant) is entitled to temporary total disability benefits retroactive to June 27, 1977, by reason of the provisions of section 92-615, R.C.M. (now 39-71-609, MCA), as that section read on the date of his injury; and (2) whether his current physical problems with his low back are causally related to the injury which occurred on June 13, 1977.

         Having considered the Court file, which includes the depositions of Dr. Brooke Hunter, M.D., C.E. Edquest and claimant, and the briefs and pleadings of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant injured his back on June 13, 1977, while in the course and scope of his employment with Leonard C. Roessner Builders, Inc. A claim for compensation was filed and liability was accepted by the respondent, State Compensation Insurance Fund (State Fund).

         2. Compensation benefits were paid for the period from June 13, 1977 to June 27, 1977, in the amount of $206.92. The benefits were paid in a single payment. In a letter which accompanied the payment, the State Fund notified the claimant that benefits were being discontinued for the reason that the claimant had returned to work. In the letter, which was dated July 20, 1977, claims examiner Edward Eberly, explained:

According to our file you sustained an industrial injury on June 13, 1977, which caused you to lose wages during the period of June 13, 1977 through June 27, 1977.
The enclosed warrant in the amount of $206.92 is being paid pursuant to the above mentioned information and covers the compensation due you at this time. Since you returned to work on June 28, 1977, we are discontinuing further compensation benefits.
If you have any questions in this regard, please do not hesitate to give this office a call.

(Edquest Dep. Ex. 1 at 15.)

         3. A fifteen (15) day notice of termination of benefits was not given to the claimant or to the division. The only notice provided is set forth in the preceding finding of fact.

         4. Claimant returned to work within a couple weeks of the date of the injury. He testified:

Q. I believe you injured your back on June 13, 1977. Does that sound correct?
A. Yes.
Q. According to the records that I have, as near as I can tell, you returned to work a couple weeks after that. Is that your memory?
A. Yes.

(Irish Dep. at 4-5.)

         5. Claimant has worked continuously since June of 1977. He returned to work for Roessner Construction as a carpenter following his injury and worked for another four or five years. He then worked as a lead carpenter and foreman for Roger Wheelwright Construction for a year. (Irish Dep. at 30-32.) He left these jobs because he was missing too much work as a result of his back problems. (Claimant's Answers to State Fund's First Set of Discovery Requests.) For the next three years he was self-employed as a contractor for residential buildings in the Bozeman area. The claimant was again forced to change jobs due to being unable to handle the construction, "I was in a perpetual state of pain, and I just couldn't handle it any longer." (Irish Dep. at 40.) He moved to Helena where he went into partnership with his father in the insurance business and was working in that job at the time these proceedings were initiated.

         6. In addition to his employment in the insurance business, the claimant owns and operates a small "hobby farm." (Id. at 42.) He raises grain and hay on the farm and is involved in most of the farming operations. His wife, son and daughter assist in the chores required for operating the farm. (Id. at 45-53.)

         7. The claimant makes his living through the insurance business and not as a farmer.

         Injury and Medical

         8. On June 13, 1977, claimant was injured when he fell from a fourteen (14) foot ladder, landing on his back on a pile of cedar shakes. (Edquest Dep. Ex. 1 at 19.) Claimant described his fall,

A. Yes, and my butt snapped over one side of it [pile of cedar shakes], and my shoulders and head went over the other side.

(Irish Dep at 20.)

         9. Following the injury, claimant was treated by Dr. John Patterson (Patterson). The Court record contains the office notes of Patterson for treatments prior to and after the injury. On the date of the injury Patterson noted:

Fell off ladder at work (carpenter) this a.m. from approx 10 foot, landing square on his low back and upper thoracic spine. Not unconscious but woosey since that time. Also quite uncomfortable. Was able to get up and walk for awhile but seemed to bother him more as time went on.
. . . . Moderately distressed, obviously uncomfortable when moving, slightly pale and sweaty. Pain over upper thoracic spines in the midline and mid lumbar spine where there is also a slight abrasion. Tetanus imms current. X-rays unremarkable altho ? some posterior compression of a lumbar vert. Will review with radiologist. [Underlining in original, bold added.]

(Hunter Dep. Ex. 5 at 20-21.) Patterson prescribed bed rest, ice packs for two days and then heat, Valium and Emperin #3. Claimant returned two days later complaining of upper back and neck pain. There had been minimal improvement. The claimant was "[q]uite tender over lower cervical spine processes." (Id.)

         10. The claimant was seen on June 27, 1977, with the doctor's note indicating "needs back check for release to go back to work." (Id. at 22.) The claimant wanted to go back to work and advised the doctor that he could quit early, and that he didn't feel an orthopod was necessary. Finally, the doctor wrote," Back to work 6-27-77." (Id.)

         11. As of June 27, 1977, the claimant had not received any worker's compensation benefits. He testified that he returned to work, even though his symptoms were the same, because he needed the money.

         12. The claimant was again seen by Patterson on February 7, 1978. At this examination the doctor noted:

S: Since injury of June 1977 has continued having intermittent low back pain, radiation into his legs, worse with prolonged sitting (driving 30 mi., etc.), especially worse in the a.m.'s and on bending and lifting. [Emphasis added.] . . . .
O: Gets up and down somewhat slowly and stiffly from chair, exam limited to low back where there is some tightness in the low back (lumbar) musculature. No leg complaints, good flexibility and mobility at waist.
A: Low back strain, chronic.

(Id.) Other than the doctor's examinations, the only diagnostic tool used in 1977-78, was an x-ray. The ...


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