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Hereim v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 26, 1995

GERALD HEREIM Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Jusge

         Summary: Claimant, who suffered a series of work-related low-back injuries between 1975 and 1991, and had low-back surgery on a protruding disk in 1992, seeks medical and indemnity benefits from the insurer liable for injuries he suffered in 1975 and 1983.

         Held: Claimant failed to prove causal connection between his disabling condition and his 1975 or 1983 injuries. Physician testified he could not attribute nerve root scar tissue, now the cause of claimant's pain, to these particular injuries. Though claimant testified his pain began following the 1975 accident, his medical records and work history belie this claim. Moreover, the first medically documented complaint of leg pain was after claimant's 1984 injury, which was worse than prior injuries. Claimant also failed to prove that his present condition disables him from employment.

         Topics:

Causation: Medical Condition. Where physician testified he could not attribute claimant's present medical condition, resulting from nerve root scar tissue, to claimant's 1975 or 1983 accidents, and where claimant suffered deterioration of his back condition after several other subsequent injuries, including low-back surgery in 1992, claimant failed to prove causal connection between 1975 or 1983 injuries and his present medical condition. Medical and work records also suggested that present pain arose after 1984 injury for which this insurer is not liable.
Injury and Accident: Causation. Where physician testified he could not attribute claimant's present medical condition, resulting from nerve root scar tissue, to claimant's 1975 or 1983 accidents, and where claimant suffered deterioration of his back condition after several other subsequent injuries, including low-back surgery in 1992, claimant failed to prove causal connection between 1975 or 1983 injuries and his present medical condition. Medical and work records also suggested that present pain arose after 1984 injury for which this insurer is not liable.

         The trial in this matter was held on November 17, 1994, in Billings, Montana. Petitioner, Gerald Hereim (claimant), was present and represented by Mr. Geoffrey R. Keller. The Respondent/Insurer, State Compensation Insurance Fund (State Fund), was represented by Ms. Susan C. Witte. Claimant testified on his own behalf. Juanita Hooper, a certified rehabilitation counselor, testified on behalf of claimant. The deposition of Dr. Robert C. Wood was submitted for the Court's consideration. Exhibits 1 through 21 were admitted.

         Issues Presented: Claimant suffered a series of work-related low-back injuries between 1975 and 1991. In 1992 he had low-back surgery on a protruded disk. In this case he asks the Court to find that the State Fund, which insured claimant with respect to the 1975 and 1983 injuries, is liable for his surgery and for future medical bills related to his low back. He further requests temporary total disability benefits during his convalescence from surgery and permanent partial disability benefits. Finally, he asks for a penalty, attorney fees and costs.

         Having considered the Pretrial 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. At the time of trial claimant was fifty (50) years old. (Tr. at 55.) He has a GED. (Tr. at 56.)

         2. From 1962 to 1965, the claimant was in the Army. (Tr. at 57.) After discharge from the Army he worked as a shipping and receiving clerk from 1965-1970. (Tr. at 58.)

         3. In 1970 claimant went to work as a route salesman and delivery man for Briggs Distributing (Briggs). (Tr. at 63.) His job duties included loading beer products on delivery trucks and unloading them at retailers. He also stocked shelves for retailers. He was required to lift beer kegs, weighing approximately one hundred and sixty (160) pounds, and cases of beer, weighing approximately twenty-five (25) pounds each. (Tr. at 60-62.) On the average, he delivered one hundred (100) kegs per week. (Id.)

         4. In 1985 claimant was laid off work by Briggs for economic reasons. (Tr. at 74-77.) Claimant then sought and obtained a job with Dunham Distributing (Dunham), a company that competed with Briggs. (Tr. 76.) He continued working for Dunham until 1988, when he was terminated because of "missing money." (Tr. at 81.)

         5. While working for the two beer distributors, claimant suffered six (6) injuries to his low back. The first occurred in 1975, the last in 1987.

         November 12, 1975 Industrial Injury

         6. Claimant's first industrial injury reportedly occurred on November 12, 1975. (Ex. 14.) Claimant slipped on a wet ramp while delivering beer and twisted his knee and back. (Tr. at 63, Ex. 14.) Claimant felt immediate knee pain but not back pain. (Tr. at 64-65.) The knee pain resolved, but over the next few days the claimant gradually developed pain in his lower back and he eventually went to the emergency room of St. Vincent Hospital. (Id.)

         7. The emergency room record is for November 12, 1975, and reflects, "This patient delivers beer and he has noticed over the past three to four days that he has been having increasing pain in the lower back area and when lifting cases of beer. There was no sudden onset of this and more gradual origin." (Ex. 2 at 2; emphasis added.) The claimant's testimony and the emergency room record establish that the industrial accident did not occur on November 12, 1975, as reported in the employer's first report (Ex. 14), but several days earlier.

         8. At the time of the emergency room examination, claimant was complaining of low-back pain. (Ex. 2 at 14.) On examination, the treating physician found "considerable paravertebral muscle spasm." (Id.) Straight leg raising, which tests for nerve root pinching or constriction (Wood Dep. at 28), was negative. X-rays taken at the time indicated that there was some narrowing of the disk space at L4-5, but it was "not a very striking finding." (Ex. 2 at 3.) The treating physician diagnosed claimant's condition as paravertebral muscle sprain of the lumbar spine and prescribed Parafon-Forte and Wygesic. (Ex. 2 at 2.)

         9. Claimant returned to work after five (5) days. (Tr. at 66.) There is no evidence that claimant was medically restricted as a result of his 1975 injury.

         10. The State Fund insured Briggs Distributing at the time of the 1975 injury. It accepted liability for the accident and paid at least the physician bill for the emergency room visit. (Ex. 2 at 4.)

         11. Between November 12, 1975, and May 27, 1983, claimant sought treatment for lower-back complaints on only one occasion. That was on July 16, 1976, when claimant went to St. Vincent's emergency room seeking a refill of the prescription for Parafon-Forte. (Ex. 3 at 1.) The ER note indicates that claimant had an episode of low-back pain ten (10) days previous, had strained his back again and was seeking to renew his pain medication. (Id.)

         12. At trial, claimant contended that his pain never totally went away following his 1975 industrial accident. (Tr. at 67.) He further testified that at times he experienced pain down both his legs. (Id.) Having heard and observed claimant's testimony at trial, and considered later medical reports which will be referred to hereinafter, I find that claimant's testimony in this regard is not credible. I am not persuaded that he suffered any continued pain in either his back or legs following his return to work in 1975, and find it more likely that his 1975 injury resolved without residual symptoms. His claim is not aided by the 1976 ER visit since the ER note for that date indicates a second strain and, in any event, he sought no medical care between that time and May 27, 1983, a period of seven (7) years.

         May 27, 1983 Industrial Injury

         13. Claimant suffered a second industrial injury on May 27, 1983. According to the employer's first report, claimant picked up a floor door and pulled his lower back. (Ex. 15.) According to claimant, he felt a "tugging" and sharp pain in his back. (Tr. at 69.) He was able to complete his work shift. (Id.)

         14. Claimant was treated for this injury by Dr. S. C. Elliott at St. Vincent's emergency room the day after the accident. (Ex. 4 at 2, 4.) The emergency room record for that day reads in pertinent part: "Bent over yesterday to lift up a door - got sudden pain in low back -then lifted heavy boxes afterwards: No hx [history] of chronic back pain - No pain or numbness in leg." (Id. at 1, emphasis added.) Dr. Elliott's dictated note states that claimant had experienced a sudden onset of back pain while lifting a door. Of significance to the finding made in paragraph 12 is that claimant had no history of back pain and no leg pain. (Id.)

         15. Dr. Elliott's examination included straight leg raising bilaterally, which was negative. (Id. at 2.) Claimant's x-rays looked normal except for a spina bifida occulta at S-1, a finding of no apparent significance. (Id. at 2.) Dr. Elliott diagnosed a lumbar strain (Id. at 2) and recommended further treatment only if claimant failed to improve. (Id.)

         16. Claimant returned to work four (4) or five (5) days after his injury. (Tr. at 71 and 94.) There is no evidence of medical restrictions being placed on him.

         17. Claimant did not seek any follow-up treatment between his second and third industrial injury.

         18. The State Fund was the workers' compensation insurer at the time of his second injury. It accepted liability for the claim and paid the medical bills for the ER visit. (Ex. 4 at 4.)

         May 23, 1984 Industrial Injury

         19. Claimant's third industrial injury occurred on May 23, 1984. Claimant's hand cart hit a small rock while he was delivering a keg to the Brunswick Bar in Hysham, causing him to jerk his back. (Tr. at 72 and Ex. 16.) Claimant felt immediate pain in his lower right back. (Tr. at 72-73.)

         20. Dr. Richard Hurd treated claimant in St. Vincent's emergency room on May 24, 1984, and diagnosed an acute muscle spasm. (Ex. 5 at 2.) The emergency room assessment reads, "low back pain radiating into left leg. Lifting yesterday." (Id., emphasis added.) Dr. Hurd's dictated note indicates that claimant had a mild twinge of pain going down the right thigh initially. ...


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