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Moore v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

April 17, 1995

PAULA MOORE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         Summary: The parties dispute whether the insurer, which accepted liability for claimant's lumbar and cervical strain following a January 8, 1993, industrial accident, remains liable for medical expenses after claimant allegedly suffered two subsequent injuries.

         Held: Where insurer is unable to point to any specific injury occurring when claimant's house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-407, MCA (1991). Where insurer is unable to point to any specific injury occurring when claimant's house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).
Causation: Medical Condition. Where claimant seeks continued medical benefits denied by an insurer, she must prove by a preponderance of the evidence that a causal connection exists between her injury and her current condition. However, if the insurer contends that injuries subsequent to the industrial accident permanently damaged her condition and relieve it of liability for continued medical treatment, it has the burden of proof. See, Lee v. Group Cable TCI of Montana, 245 Mont. 292; Walker v. United Parcel Service, 262 Mont. 450 (1993).
Proof: Burden of Proof: Aggravations. Where claimant seeks continued medical benefits denied by an insurer, she must prove by a preponderance of the evidence that a causal connection exists between her injury and her current condition. However, if the insurer contends that injuries subsequent to the industrial accident permanently damaged her condition and relieve it of liability for continued medical treatment, it has the burden of proof. See, Lee v. Group Cable TCI of Montana, 245 Mont. 292; Walker v. United Parcel Service, 262 Mont. 450 (1993).
Proof: Burden of Proof: Aggravations. Where insurer is unable to point to any specific injury occurring when claimant's house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).
Causation: Medical Condition. The claimant has a duty to follow reasonable medical instructions with regard to treatment of her condition, including prescribed physical therapy and exercise. In light of her physician's determination that her condition should resolve with appropriate treatment, she is cautioned that her failure to do so in the future may relieve the insurer of further liability for her condition.
Claimants: Duties: Medical Advice. The claimant has a duty to follow reasonable medical instructions with regard to treatment of her condition, including prescribed physical therapy and exercise. In light of her physician's determination that her condition should resolve with appropriate treatment, she is cautioned that her failure to do so in the future may relieve the insurer of further liability for her condition.
Injury and Accident: Aggravation. Where insurer is unable to point to any specific injury occurring when claimant's house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).
Injury and Accident: Non-Work-Related. Where insurer is unable to point to any specific injury occurring when claimant's house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).

         The trial in this matter was held on December 1, 1994, in Helena, Montana. Petitioner, Paula Moore (claimant), was present and represented by Mr. Thomas A. Budewitz. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams. Claimant, Wade Green, Flora Green and Pat Hunt testified. Exhibits 1 through 32 were admitted by agreement of the parties. The depositions of claimant and Allen M. Weinert, Jr., M.D. were submitted for the Court's consideration.

         Issues: Claimant suffered lumbar and cervical strain in an industrial accident which occurred on January 8, 1993. The State Fund does not dispute the occurrence of the accident or that claimant was injured. However, it asserts that claimant suffered two subsequent injuries and that those injuries relieve it from further liability. It has refused to pay medical expenses incurred by claimant after August 25, 1993. Thus, the primary issue in this case is whether the State Fund is liable for further medical treatment for claimant's back condition. Claimant also seeks attorney fees and a penalty.

         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. Claimant is presently 30 years old. (Ex. 2.) Since the filing of her worker's compensation claim she has married and has adopted her husband's name. She is now known as Paula Green.

         2. On January 8, 1993, the claimant injured her low-back and cervical area at work while throwing bags of garbage into a garbage bin.

         3. At the time of her injury, claimant was working as a janitor for Lonnie Davis Maintenance (Davis), a janitorial service.

         4. Davis was insured by the State Fund, which accepted liability and paid wage loss benefits to the claimant from February 3, 1993 through July 20, 1993.

         5. At trial the parties stipulated that the claimant did not return to work for Davis after February 3, 1993.

         6. Claimant was initially treated by Dr. William Batey, a family physician. On January 26, 1993, he diagnosed her condition as lumbar strain and cervical strain. Dr. Batey prescribed physical therapy, Relafen (an anti-inflammatory drug), and no work for "the next week." (Ex. 2.)

         7. Claimant began physical therapy and continued to see Dr. Batey throughout February 1993. She remained off work. When her condition did not improve, Dr. Batey referred the claimant to Dr. Allen Weinert, a physiatrist, for a further evaluation. (Ex. 4 at 2, Ex. 8.)

         8. Dr. Weinert first saw the claimant on April 9, 1993. At that time his medical impressions were:

1. Lumbar strain (musculo-ligamentous low back pain). No evidence of radiculopathy.
2. Musculoskeletal deconditioning.
3. Poor posture.
4. Myofascial neck and shoulder pain.
5. Tension headaches.

         (Ex. 8 at 3.) He recommended continued physical therapy "to progress through stabilization and postural education as well as work on some stretching and modality techniques . . . ." He prescribed Naprosyn (an anti-inflammatory drug) and Flexeril (a muscle relaxant). He also approved her return to work in a "modified janitorial position." (Id.)

         9. Claimant began physical therapy with John Harrington on April 19, 1993. The physical therapy plan called for her to attend physical therapy sessions three times weekly for four weeks. She only appeared for two appointments. (Ex. 10.) During this time period she drove to Oregon and back on personal business.

         10. A modified position with Davis was arranged. The plan for return to work called for claimant to work three hours per day during the first week, four hours a day the second, and five hours the third. Before she could return to work she suffered a flare-up of her condition. Dr. Weinert was notified of the flare-up on approximately April 12, 1993. On April 13, 1993, Dr. Weinert determined that claimant's return to work should be postponed for one week. At the same time he concluded that a job as a bartender, which was a second job that claimant had held before she was injured, was within her capabilities. However, he also concluded that it would be best for her to work only one job "for the time being." (Ex. 9.)

         11. On May 11, 1993, claimant was again examined by Dr. Weinert. He noted that her symptoms were essentially unchanged. (Ex. 11.) He emphasized to claimant the importance of her following through with physical therapy and renewed her prescriptions of Naprosyn and Flexeril. (Id.) Noting that Davis had now "decided to not take her back", he released claimant to return to work as a waitress for four hours per day. (Id.)

         12. As of May 13, 1993, Dr. Weinert did not feel that the claimant had reached ...


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