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Cary v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

July 7, 1995

BOBI JO CARY Petitioner
v.
vs LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BUTTREY FOOD AND DRUG Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT AS TO ALL ISSUES EXCEPT CLAIMANT'S REQUESTS FOR A PENALTY AND ATTORNEY FEES

          Mike McCarter, Judge

         Summary: Grocery store checker had a history of back injuries and strains. Lumbermen's accepted liability for a 1992 low back injury and paid various medical and compensation benefits. After reaching MMI, claimant suffered a nonwork-related incident when she slipped and fell in a college parking lot. Citing section 39-71-407(5), MCA (1993), the insurer argued the nonwork-related fall relieved it of liability for claimant's back condition. The insurer also refused to pay for services rendered by a chiropractor and sought reimbursement from claimant related to various TTD and rehabilitation benefits.

         Held: Where the nonwork-related incident caused only a temporary aggravation of claimant's back condition, the insurer was not relieved of liability for future treatment that remained "caused" by her work-related injury. The insurer was liable for the chiropractic bills where claimant proved the services were part of a treatment plan formed in conjunction with her treating physician.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-407(5), MCA (1993). The statute relieves an insurer from further liability for claimant's condition only if claimant's nonwork-related injury amounted to a permanent aggravation of her condition. If the aggravation is permanent, then future disability and treatment is "caused" by the nonwork-related injury within the meaning of the statute. If the nonwork related incident caused only a temporary flare-up of symptoms of her underlying condition, further treatment and any future disability is still caused by the work related injury for which the insurer remains liable.
Benefits: Medical Benefits: Chiropractic. Under 1993 statutes, claimant proved that adjunctive therapy provided by chiropractor was part of a treatment plan formed in conjunction with her treating physician and thus was authorized, compensable medical services.
Causation: impact of nonwork-related incident. Section 39-71-407(5), MCA (1993) relieves an insurer from further liability for claimant's condition only if claimant's nonwork-related injury amounted to a permanent aggravation of her condition. If the aggravation is permanent, then future disability and treatment is "caused" by the nonwork-related injury within the meaning of the statute. If the nonwork related incident caused only a temporary flare-up of symptoms of her underlying condition, further treatment and any future disability is still caused by the work related injury for which the insurer remains liable.
Injury and Accident: Subsequent Injury. Section 39-71-407(5), MCA (1993) relieves an insurer from further liability for claimant's condition only if claimant's nonwork-related injury amounted to a permanent aggravation of her condition. If the aggravation is permanent, then future disability and treatment is "caused" by the nonwork-related injury within the meaning of the statute. If the nonwork related incident caused only a temporary flare-up of symptoms of her underlying condition, further treatment and any future disability is still caused by the work related injury for which the insurer remains liable.

         The trial in this matter was held on February 22, 1995, in Great Falls, Montana. Petitioner, Bobi Jo Cary (claimant), was present and represented by Mr. J. David Slovak. Respondent, Lumbermens Mutual Casualty Company (Lumbermens or insurer), was represented by Mr. Thomas A. Marra. Exhibits 1 through 16 were admitted by stipulation. The claimant, Mark Hertenstein, D.C. and Lee S. Hudson, D.C. testified. The depositions of claimant, Robert Lynch, Dana Headapohl, M.D., Bill Tacke, M.D., and Scott Shawn Fitzpatrick were submitted for the Court's consideration.

         Issues Presented:

         The following issues, as rephrased by the Court, are presented for decision:

1) Whether the chiropractic bills for adjunct therapies were reasonable and appropriate.
2) Whether a non-work related slip and fall which claimant suffered in January 1994 relieves Lumbermens from further liability for medical benefits.
3) Whether Lumbermens is liable for a $220 bill from Dr. Tacke.
4) Whether claimant must reimburse Lumbermens for any of the temporary total and total rehabilitation benefits she received.

         Claimant's requests for penalty and attorney fees were bifurcated by an order dated September 23, 1994, and are not addressed herein.

         Motion to Strike:

         Following trial, claimant filed a Motion to Strike Portion of Respondent's Exhibit No. 12 (medical records of bill j. tacke, m.d.). Exhibit 12 was offered by Lumbermens. It consists of the materials reviewed by a medical panel which examined claimant at Lumbermens' request. (See Ex. 11.)

         The motion asks the Court to strike pages 323 and 324 of the exhibit. Those pages are part of Dr. Tacke's records and contain underlining that was not part of the Dr. Tacke's original records. Unaltered copies of these pages are found in Exhibit 3 at pages 24 and 25. Unaltered copies are also attached to Dr. Tacke's deposition.

         Claimant argues, "Respondent's counsel offered the exhibit [12] with the representation that the exhibit was a truthful and accurate copy of Dr. Tacke's original records when that was obviously not true. The Respondent's effort to highlight or emphasize certain portions of Dr. Tacke's records by underlining the original records is a serious breach of the stringent duties imposed by this Court." (Motion to Strike Portion of Respondent's Exhibit no. 12 (Medical Records of Bill J. Tacke, M.D. at 2.) She asks the Court to admonish Lumbermens' counsel.

         The motion is trivial and is denied. Claimant did not object to the exhibit at trial. Her counsel had ample opportunity to compare the exhibit with the other exhibits. If he did not notice the underlining, it was due to his own lack of diligence.

         Moreover, it does not appear that the offer of the exhibit amounted to a representation that the exhibit was an exact duplicate of Dr. Tacke's original records. It was offered as part of what was reviewed by the medical panel. Who did the underlining is not obvious. The physicians reviewing the records could have done the underlining or the underlining could have been done by Lumbermens' counsel to draw their attention to the particular statement.

         Finally, the motion is simply a tempest in a teapot, and another example of both counsel in this case playing hardball and losing their objectivity (see, e.g., Motion to Disqualify Counsel, September 21, 1994, and colloquy between counsel in Cary Dep.). The underlining certainly draws attention to specific parts of Dr. Tacke's report, but counsel are entitled to do that in any event, so counsel for claimant can hardly complain that the Court has been unduly influenced by the underlining. He could have simply pointed out that the underlining was not in the original so that the Court understood that someone other than Dr. Tacke was drawing attention to the particular statements.

         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 the claimant was 31 years old, single and the mother of two sons. She is a high school graduate and has completed one semester of college at the College of Great Falls.

         2. In 1979, while still in high school, the claimant began working for Buttrey Food and Drug (Buttrey) as a box boy. Following high school she worked briefly as a waitress, a bartender and a short order cook. (Ex. 16 at 3.) In 1984 she returned to Buttrey as a box boy and worked her way up to the checker position, eventually becoming a checker/part-time front-end manager. She continued to work at Buttrey until her injury in July of 1992, approximately eight (8) years.

         3. Claimant liked her work and hoped to advance, perhaps to manager.

         Previous Workers' Compensation Claims

         4. In June 1984 and March 1990 the claimant suffered injuries to her left shoulder while employed at Buttrey.

         5 . On November 2, 1987, she suffered a low-back injury and was seen by Dr. Howard I. Popnoe, an orthopedic surgeon. Her condition was diagnosed as "acute strain low back." (Ex. 12 at 80.) On January 16, 1989, she suffered a second injury to her low back and was treated by Dr. Michael Luckett, an orthopedic surgeon, who diagnosed lumbosacral strain. (Id. at 85.)

         6. Medical and compensation benefits were paid after each of these injuries and the claimant returned to work each time.

         July 17, 1992 Injury

         7. Claimant's fifth and final work-related injury occurred on July 17, 1992, when she again injured her low back while lifting a heavy watermelon from the bottom rack of a grocery cart.

         8. At the time of the fifth injury, Buttrey was insured by Lumbermens, which accepted liability for the injury. Lumbermens has paid various medical and compensation benefits.

         9. Following her July 17, 1992 injury, the claimant was treated at the Columbus Hospital emergency room by Dr. M. F. Doubek. (Ex. 12 at 229.) He diagnosed "[l]umbago" and recommended that claimant "see Dr. Mark Hertenstein for manipulation if indicated." (Id.)

         10. Claimant then sought treatment from Dr. Ronald Peterson, who specializes in occupational medicine. (Id. at 234.) She first saw Dr. Peterson on July 27, 1992, and continued to treat with him through February of 1993. During his treatment of claimant, Dr. Peterson prescribed physical therapy. (Id. at 267-303.)

         11. Initially, Dr. Peterson found that the claimant suffered from "recurrent lumbar strain" and prescribed Robaxisal, which is prescribed for management of discomforts associated with Musculoskeletal Disorders(Physicians' Desk Reference (1994 Ed.), and physical therapy. (Ex. 12 at 234-235.) Dr. Peterson provided her with a modified-duty statement which allowed her to return to work in a modified position for four (4) hours per day. (Id.) Claimant attempted to return to work but was unsuccessful. (Ex. 11 at 9.)

         12. On September 18, 1992, Dr. Peterson determined that the claimant was suffering from "Possible Dysfunction of the Right Sacroiliac Joint," and in his October 5, 1992 diagnosis, he eliminated the word "possible." (Ex. 12, at 244, 246.) He referred the claimant to Dr. Bradley D. Root, who specializes in physical and rehabilitation medicine, for "further evaluation of mobilization exercises of the SI joint." (Id. at 246.)

         13. On November 16, 1992, Dr. Root examined the claimant and diagnosed "SI joint dysfunction with probable related pelvic and sacral components" and "myofascial pain syndrome with a component of fibromyalgia." (Ex. 12 at 306.) Dr. Root prescribed various medications, continued physical therapy, and chiropractic "manipulative treatment" by Mark Hertenstein, D.C., on an as needed basis. (Id.) He also recommended that claimant consider the use of a TENS unit. (Id.)

         14. Throughout his treatment of the claimant, Dr. Root adhered to his diagnosis of SI joint dysfunction. He continued to treat claimant through August of 1993, at which time he relocated outside of Montana. Dr. Bill J. Tacke, who is a colleague of Dr. Root and who also specializes in physical and rehabilitation medicine, assumed claimant's care.

         15. Claimant underwent a Functional Capacities Evaluation (FCE) on October 4 and 5, 1993. She tested at the sedentary-light physical ability level. (Ex. 12 at 212-216.)

         16. Dr. Tacke examined claimant on November 23, 1993. (Ex. 3 at 29-31.) He determined that she had reached maximum medical improvement (MMI), and took the necessary measurements for an impairment rating, however, he did not give an impairment rating. (Id. at 30.) His assessment of the claimant's condition was identical to the previous assessments of Dr. Root, i.e., SI joint dysfunction with probable related pelvic and sacral components and myofascial pain syndrome with a component of fibromyalgia. (Id.) Dr. Tacke and the claimant discussed a variety of job analyses which had been forwarded to his office but he did not formally approve or disapprove any job. (Id. at 30-31.) He recommended that she perform stretching exercises and join a health club. (Id. at 31.) He agreed to see her in the future on an "as needed" basis. (Id.)

         Chiropractic Treatments

         17. In November 1992, Dr. Root authorized chiropractic therapy by Dr. Mark Hertenstein on an as needed basis. (Ex. 12 at 306.) While treating claimant, Dr. Root continued to authorize treatments by Dr. Hertenstein. (Id. at 308-311, 315-316.) This was in addition to physical therapy. (Id. at 306, 312, 316.) When Lumbermens ...


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