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Rooney v. Credit General Insurance

Court of Workers Compensation of Montana

June 29, 1995

ROCKY G. ROONEY Petitioner
v.
CREDIT GENERAL INSURANCE Respondent/Insurer for TTC INCORPORATED Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER, JUDGE

         Summary: Claimant sought medical and compensation benefits for current back condition, which insurer contended was not related to 1993 industrial accident.

         Held: Although claimant has significant pre-existing back conditions, the insurer is liable for his current condition if his industrial injury lit up, aggravated or accelerated his back condition. A preponderance of the evidence establishes that the 1993 injury lit up and worsened claimant's underlying spondylolisthesis and spinal stenosis. While claimant occasionally had low back pain prior to the accident, he never sought treatment for such pain, which is now worse and radiates into his legs. Though not all physicians who have evaluated claimant recommend surgery at present, the weight of the evidence indicates surgery is a reasonable medical treatment, making the insurer liable if claimant chooses to undergo surgery. Since surgery may alleviate or diminish some of claimant's symptoms, he has not reached maximum medical healing, and is entitled to temporary total disability benefits retroactive to the date of their termination.

         Topics:

Injury and Accident: Aggravation: Generally. Although claimant has significant pre-existing back conditions, the insurer is liable for his current condition if his industrial injury lit up, aggravated or accelerated his back condition. A preponderance of the evidence establishes that the 1993 injury lit up and worsened claimant's underlying spondylolisthesis and spinal stenosis. While claimant occasionally had low back pain prior to the accident, he never sought treatment for such pain, which is now worse and radiates into his legs.
Injury and Accident: Causation. Although claimant has significant pre-existing back conditions, the insurer is liable for his current condition if his industrial injury lit up, aggravated or accelerated his back condition. A preponderance of the evidence establishes that the 1993 injury lit up and worsened claimant's underlying spondylolisthesis and spinal stenosis. While claimant occasionally had low back pain prior to the accident, he never sought treatment for such pain, which is now worse and radiates into his legs.
Medical Conditions (By Specific Condition): Spinal Stenosis. Although claimant has significant pre-existing back conditions, the insurer is liable for his current condition if his industrial injury lit up, aggravated or accelerated his back condition. A preponderance of the evidence establishes that the 1993 injury lit up and worsened claimant's underlying spondylolisthesis and spinal stenosis. While claimant occasionally had low back pain prior to the accident, he never sought treatment for such pain, which is now worse and radiates into his legs.
Benefits: Medical Benefits: Surgery. Though not all physicians who have evaluated claimant recommend surgery at present, the weight of the evidence indicates surgery is a reasonable medical treatment, making the insurer liable if claimant chooses to undergo surgery. Since surgery may alleviate or diminish some of claimant's symptoms, he has not reached maximum medical healing, and is entitled to temporary total disability benefits retroactive to the date of their termination.
Benefits: Temporary Total Disability Benefits. Though not all physicians who have evaluated claimant recommend surgery at present, the weight of the evidence indicates surgery is a reasonable medical treatment, making the insurer liable if claimant chooses to undergo surgery. Since surgery may alleviate or diminish some of claimant's symptoms, he has not reached maximum medical healing, and is entitled to temporary total disability benefits retroactive to the date of their termination.

         The trial in this matter was held on January 24, 1995, in Missoula, Montana. Petitioner, Rocky G. Rooney (claimant), was present and represented by Mr. Mark E. Westveer. Respondent, Credit General Insurance (CGI), was represented by Mr. Michael P. Heringer. Claimant, Darryl Graham, Jim Hinds and Linda Rooney testified. Additionally, the depositions of claimant, Dr. Robert F. Moseley, Dr. William S. Shaw and Dr. Michael Lahey were submitted for the Court's consideration. Exhibits 1 through 9 were admitted by stipulation of the parties. A transcript of the trial has not been prepared.

         Issues Presented: Claimant asks this Court to determine that his January 12, 1993 industrial injury caused his current back condition. He seeks medical and compensation benefits. In addition, he requests that he be awarded attorney's fees and costs.

         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 forty-four (44) years old. He is a high school graduate.

         2. In 1977, claimant began a career of truck driving. (Rooney Dep. at 10.) He has worked for a variety of trucking operations and driven flatbeds, chip trucks, and double A-trains. He has primarily worked as a long-haul truck driver, although he has also driven local delivery routes.

         3. Claimant went to work for Americana Expressways (Americana) in February of 1987. Americana leased its drivers, including claimant, to other trucking companies.

         4. Claimant temporarily left Americana in 1990 because he was tired of constantly being on the road. In April of 1990, he worked for a short period at Lanham's Heating & Air Conditioning (Lanham's) installing duct work and furnaces while he attempted to find another job. (Rooney Dep. at 13-14.) Darryl Graham is the owner of Lanham's and a neighbor of the claimant. Claimant worked for Molerway Freight from July to December of 1990, doing local deliveries. Claimant then went back to Americana because of better pay.

         5. Americana became TTC, Inc.

         6. On January 12, 1993, while working for TTC, claimant injured his back in Portland, Oregon. He was pulling a two hundred (200) pound tailgate to the rear of his trailer when he slipped on some ice and fell. The tailgate landed on top of him. He felt immediate, severe pain in his back.

         7. At the time of the accident, TTC was insured by CGI, which accepted liability for the accident.

         8. Following the accident, claimant worked for another couple of days. He drove to Salt Lake City and picked up another load and then returned home with the load to Lolo, Montana. Due to the pain in his back, he did not complete delivery of the load, which was destined for some other place. Another driver completed the delivery.

         9. Upon return home to Lolo, claimant initially sought treatment from his wife's massage therapist.

         10. Claimant had occasional backaches over the years prior to 1993, but nothing that required medical attention. (Rooney Dep. at 36.) Prior to January of 1993, he had never seen a doctor for back problems. (Rooney Dep. at 36.)

         11. Massage therapy did not relieve claimant's pain and on January 19, 1993, he sought treatment at NOW CARE which is part of the Western Montana Clinic. He was examined by Dr. R. A. Breitenbach. (Ex. 1 at 6.) At that time he had moderate to severe low-back pain "which radiate[d] down the lateral aspect of the thighs, nearly to the knees bilaterally." (Id.) Dr. Breitenbach diagnosed "low back strain" but suspected a "[p]ossible herniated disk." (Id. at 7.) He prescribed physical therapy to commence "after the first several days if improving." (Id.)

         12. Claimant began physical therapy on January 22, 1993, and continued with therapy until February 23, 1993. (Ex. 1 at 8-21.) The therapist's notes for that period document low-back pain and leg pain. The notes do not record complaints regarding the upper back or upper extremities.

         13. On January 29, 1993, claimant returned to Dr. Breitenbach complaining of continued back pain and pain and numbness in his right leg. (Ex. 1 at 5.) The doctor diagnosed "[l]umbar radiculopathy" and ordered a CT scan and follow-up with an orthopedic surgeon. (Id.)

         14. Dr. Robert Moseley, an orthopedic surgeon, examined claimant on February 10, 1993. (Ex. 1 at 4.) He took a history which provided the following details concerning claimant's back complaints:

43 YO truck driver who sustained a sudden pain in the lower back while lifting a tailgate at work on January 12, four weeks ago. He has a history of occasional mild low back pain over the years but nothing severe. Present pain worsened over the first week or so, began radiating into both legs, the R. somewhat more than the L., felt diffusely through the leg but especially down the lateral side and the lateral aspect of the calf. He has no distal paresthesias. Pain is increased with bending and lifting. It is eased by rest. It is not especially affected by walking, although he says he does get some pain if he walks a very long distance. Pain frequently wakes him in the middle of the night. He has received PT with some relief.

(Id.)

         15. Dr. Moseley reviewed the CT scan and plain x-rays. He found spondylolysis at the L5-S1 level. (Id.) His further diagnosis was:

Dx: Acute lumbosacral strain superimposed on a pre-existing first degree spondylolisthesis at L5, S1. Incidental findings of relative spinal stenosis at L4-5 due to spurs are noted on the CT scan which appear unrelated to his present symptoms. Pain in the leg appears to be entirely referred pain from the lumbosacral area.

(Id.) In his review of the CT scan and x-rays, Dr. Moseley also noted the presence of "first degree spondylolisthesis at the L5, S1 . . . a fairly prominent posterior spur at L4-5 . . . mild generalized degenerative disk disease and in the lower thoracic spine evidence of an old shoreman's epiphysitis." (Id.) He found no evidence of a ruptured disk and prescribed continued physical therapy and weight loss. (Id.)

         16. Spondylolisthesis is the "forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum." Dorland's Illustrated Medical Dictionary (27th Ed.). Spinal stenosis is "a narrowing of the spinal canal, either from bony spur formation or from soft tissue hypertrophy." (Moseley Dep. at 18.) Spondylolysis in the case of claimant "is a defect in the bone at L5." (Id. at 11.) In dictionary terms, it is the "dissolution of a vertebra." Dorland's Illustrated Medical Dictionary (27th Ed.). Dr. Moseley testified that the spondylolysis, spondylolisthesis, bone spurs, and degenerative disk disease preexisted claimant's injury. (Moseley Dep. at 12-17.)

         17. Claimant continued his physical therapy. Between February 11 and February 18, 1993, the physical therapy notes reflect that his primary complaints were low-back pain with some right leg discomfort. (Ex. 1 at 10-15.)

         18. On February 22, 1993, claimant reported to his physical therapist that he had experienced an increase in cramping and low-back soreness "primarily due to shoveling snow." (Ex. 1 at 9.)

         19. On February 24, 1993, claimant returned to Dr. Moseley much improved. (Ex. 1 at 3A.) Dr. Moseley noted that shovelling snow had aggravated his pain but that over all he was "getting along pretty well." He released claimant to return to work as a truck driver on March 1, 1993. (Id.)

         20. Claimant did not return to work on March 1 and sought additional treatment from Dr. Moseley on March 11, 1993. (Ex. 1 at 3.) At that time he had "marked paravertebral spasm bilaterally." (Id.) Claimant reported that he had "developed severe low back spasm today after stacking brush at home yesterday and taking a long walk today." (Id.) Dr. Moseley prescribed Norgesic Forte and bed rest. (Id.)

         21. Dr. Moseley saw claimant in a follow-up visit on March 23, 1993. (Ex. 1 at 2.) He noted that claimant had "improved", although he was complaining of "persistent pain in the right leg." (Id.) He prescribed ...


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