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O'Connor v. National Union Fire Insurance

Court of Workers Compensation of Montana

May 19, 1995

TEDDY A. O'CONNOR Petitioner
v.
NATIONAL UNION FIRE INSURANCE/ALEXSIS Respondent.

          DECISION AND JUDGMENT

          Mike McCarter Judge

         Summary: The parties disputed whether claimant's current lower back condition, involving pain radiating into her right leg and foot, is related to her 1993 industrial accident or results from a 1975 gunshot wound or a 1987 industrial injury.

         Held: Where a neurosurgeon testified on a more probable than not basis that claimant's current symptoms result from a disk fragment attributable to the 1993 injury, she has carried her burden of proving entitlement to medical and indemnity benefits relating to her current condition. Surgery recommended by neurosurgeon is reasonable and necessary and must be covered by the insurer.

         Topics:

Causation: Medical Condition. Where a neurosurgeon testified on a more probable than not basis that claimant's current symptoms result from a disk fragment attributable to the 1993 injury, she has carried her burden of proving entitlement to medical and indemnity benefits relating to her current condition.
Injury and Accident: Causation. Where a neurosurgeon testified on a more probable than not basis that claimant's current symptoms result from a disk fragment attributable to the 1993 injury, she has carried her burden of proving entitlement to medical and indemnity benefits relating to her current condition.
Benefits: Temporary Total Disability Benefits. Where Court was persuaded claimant would have been unable to work after certain date due to painful back condition, she is entitled to receive temporary total disability benefits from that date, irrespective of insurer's contention that she was terminated from employment following accusation of shoplifting not proven to the Court.
Witnesses: Credibility. Where Court was persuaded claimant would have been unable to work after certain date due to painful back condition, she is entitled to receive temporary total disability benefits from that date, irrespective of insurer's contention that she was terminated from employment following accusation of shoplifting not proven to the Court.

         The trial in this matter was held on May 15, 1995, in Billings, Montana. Petitioner, Teddy A. O'Connor (claimant), was present and represented by Mr. Don Edgar Burris. Respondents were represented by Mr. Joe Seifert.

         Witnesses at trial and by deposition: Claimant testified on her own behalf. Dr. Fred G. McMurry and Karen Wiles also testified. The parties agreed that the deposition of the claimant can be considered part of the record.

         Exhibits: Exhibits 1 and 3 were admitted by stipulation. Exhibit 2 was admitted over the objection of Mr. Burris, who objected to pages 4 and 5 of the exhibit. The pages in question were admittedly solely to show that claimant was involuntarily terminated from Buttrey Food and Drug (Buttrey). The reasons expressed therein for the termination are given no weight.

         Issues presented: The issues to be decided by the Court are whether the claimant's current complaints are causally related to her compensable industrial accident on August 22, 1993 or whether they resulted from a noncompensable cause and what benefits she is entitled to, if any. Attorney fees and a twenty (20%) percent penalty are also at issue.

         Bench Ruling: At the close of the evidence the Court made a bench ruling in favor of claimant. That bench ruling is reflected in the following findings of fact, conclusions of law and judgment.

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

         Findings of Fact

         1. On August 22, 1993, claimant fell in a puddle of water while working in the course and scope of her employment with Wal-Mart Stores in Billings, Montana. She hurt her back.

         2. At the time of claimant's 1993 industrial accident, Wal-Mart was insured by National Union Fire Insurance (National Union). The insurer employed Alexsis to adjust the claim.

         3. National Union accepted the claim for the August 22, 1993 injury.

         4. Following her August 22, 1993 industrial injury, the claimant was off work for five (5) weeks. During that time National Union paid temporary total disability benefits.

         5. Claimant's symptoms following her injury and continuing until the present time consist of severe pain in the calf of her lower right leg and outer part of her right foot. Claimant describes her pain as "unbearable" when she sneezes, coughs ...


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