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Best v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 23, 1995

DENNIS O. BEST, SR. Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for STOCKMAN'S BAR AND CAFE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Claimant has experienced low back pain with radiation into his legs since 1986, diagnosed that year as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome, which remains his diagnosis. He quit employments during 1988 and 1990 due to back pain and experienced numerous exacerbations of low-back pain between 1986 and 1991. In 1991, on a claim for social security benefits, he stated that he has constant and severe pain in his back and legs. In 1993, while working at a bar and cafe, claimant hit his hip on a table and fell, leading to an acute flare-up of his low-back condition. He quit employment shortly before he was about to be fired for drinking. When he filed a claim for workers' compensation, the insurer paid medical benefits relating to the flare-up but denied compensation benefits. Claimant seeks permanent total disability benefits.

         Held: Noting that claimant's wife had been hired jointly with him at the cafe and performed 95% of the work, the Court found that a chiropractor's opinion that claimant was worse off after the 1993 incident to be based on a misunderstanding of the facts. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-116(16), MCA (1991). Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant's wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability within the statute where his permanent total disability predated the 1993 incident and was not caused by that incident.
Benefits: Permanent Total Disability: Generally. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant's wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.
Causation: Medical Condition. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant's wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.
Injury and Accident: Causation. Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant's wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.

         The trial in this matter was held on November 16, 1994, in Billings, Montana. The petitioner, Dennis O. Best (claimant), was present and represented by Mr. Don Edgar Burris. The respondent, State Compensation Insurance Fund, was represented by Mr. Daniel J. Whyte. Claimant testified on his own behalf. Noel Woodrich and JoAnn Piehl also testified. The post-trial deposition of Dr. Richard Vande Veegaete was submitted for the Court's consideration. Exhibits 1 through 9 were admitted into evidence. While Exhibit 2, which consists of Social Security Administration documents generated in connection with claimant's request for social security disability benefits, was admitted in its entirety, the only documents deemed relevant and considered by the Court are medical records and statements and representations made by or on behalf of the claimant. Finally, claimant offered Exhibits 10 through 16 after trial. The exhibits are untimely and are refused.

         Issues Presented: The statement of issues set out in the Pretrial Conference Order have been modified as the result of colloquy with counsel at trial and are rephrased as follows:

1. Whether claimant is entitled to compensation benefits on account of an industrial accident he suffered on June 18, 1993, and if so, the proper rate of his benefits.
2. Whether claimant is entitled to expenses for travel incidental to chiropractic treatment by Dr. R. Vande Veegaete.
3. Whether claimant is entitled to attorney fees, costs and a penalty.

         Issue number 2 concerns travel by claimant, who now lives in Harlowton, to Billings, for treatment by Dr. Vande Veegaete. The amount in controversy is approximately $500. (Tr. at 77.) Dr. Vande Veegaete treated claimant for his back problems for a number of years prior to his industrial accident of June 18, 1993. Neither party knew whether chiropractic care is available in Harlowton. In view of the small amount at issue, the Court recommended to the parties that the State Fund consider paying for previous travel and that the parties then address the question of future chiropractic care by determining whether any chiropractor practices in or visits Harlowton, and if so, whether Dr. Vande Veegaete's services are unique and necessary such that claimant is justified in continuing to travel to Billings for treatment. Claimant's proposed findings of fact indicate that the parties have resolved this issue, and the State Fund does not mention the matter in its proposed findings. The Court therefore deems the matter resolved and will not address it.

         Having considered the Pretrial Conference Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition, exhibits, and the parties' proposed findings of fact and conclusions of law, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is approximately 55 years of age. He is presently married to Linda Best.

         2. Over the years he has worked as a cook, carpenter, truck driver and welder, and characterized himself as a "jack of all trades but a master of none." (Tr. at 52.) He has a history of chronic alcoholism and other physical ailments.

         3. Claimant injured his low back in an industrial accident in September of 1986, in Issaquah, Washington. He was on temporary total disability benefits from that time until April 19, 1991. (Tr. at 26.) He settled his workers' compensation claim in 1991.

         4. Dr. Vande Veegaete has treated claimant with respect to is low-back condition since September 12, 1986. (Vande Veegaete Dep. at 7.) In 1986, Dr. Vande Veegaete diagnosed claimant's condition as L4-5, L5-S1 disk degeneration and dysfunctional lumbar disk syndrome; his current diagnosis is the same. (Id. at 7, 21, 30.)

         5. Since 1986 claimant has experienced low-back pain which frequently radiates into his legs (Id. at 8-9, 30; Dep. Exs. 8, 10, 11, 14-16.) On several occasions between 1986 and 1991, Dr. Vande Veegaete's records and correspondence reflect that claimant was limping and that his legs buckled. (Id. Exs. 12, 13, 14, 16.) As of March 1, 1991, Dr. Vande Veegaete reported:

He still has periodic numbness in his left leg (feels like he is dragging it and he limps), has frequent reactivation of severe low back pain, at times is unable to get out of bed by himself, periodically walks with a cane, and sometimes needs help to do simple daily activity (comb hair or put on his shoes). He still cannot stand in any one place for any prolonged time (15-20 minutes), cannot lift more than 5 pounds, and cannot carry 5 pounds for more than 10 feet. He complains that he cannot lift his own infant baby.

(Id. Ex. 16 at 1.) There is then no record of treatment by Dr. Vande Veegaete until July 12, 1993. (See id. Ex. 17 at 1.) However, claimant testified that the doctor provided periodic chiropractic treatment from December 1986 until shortly before the June 18, 1993 Stockman's Bar injury. (Tr. at 30-31.)

         6. On August 1, 1988, claimant went to work as a cook at American Legion Post 4 in Billings, Montana. On August 30, 1988, he quit that employment "because of my back - ...


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