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Briney v. Pacific Employers Insurance Co.

Court of Workers Compensation of Montana

September 18, 1995

BRETT BRINEY Petitioner
v.
PACIFIC EMPLOYERS INSURANCE COMPANY Respondent/Insurer for STAUFFER CHEMICAL COMPANY Employer.

          Date: Submitted: July 6, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Reversed in Briney v. Pacific Employers Insurance Co., 283 Mont. 346, 942 P.2d 81 (1997).

         Summary: Claimant sought 500 weeks of permanent partial disability benefits with respect to a 1981 back injury. Orthopedic surgeon, who was treating physician, testified that claimant reached MMI following work injury. His testimony, along with testimony from other physicians, indicated that claimant's back condition would not have progressed to its present disabling point without additional injuries or aggravations for which the insurer was not liable.

         Held: Claimant has not proven entitlement to benefits from this insurer where he did not prove that the 1981 industrial injury proximately caused his present disability. Note: this decision was reversed by the Montana Supreme Court in Briney v. Pacific Employers Insurance Co., 283 Mont. 346, 942 P.2d 81 (1997).

         The trial in this matter was held on May 31, 1995, in Butte, Montana. Petitioner, Brett Briney (claimant), was present and represented by Mr. Andrew D. Huppert. Respondent, Pacific Employers Insurance Company (Pacific), was represented by Mr. Brendon J. Rohan. The claimant testified on his own behalf. William Goodrich, Margot Hart and Mike McNabb also testified. The depositions of claimant, Dr. Charles Canty, Dr. Michael Lahey, Dr. Gary Cooney, Dr. Patrick Robins and William Goodrich were submitted for the Court's consideration. Exhibits 1 through 16 and 18 through 20 were admitted by stipulation of the parties. Exhibit 17 was admitted over claimant's objection.

         A trial transcript has not been prepared. Unless otherwise noted, the facts found herein are based on trial testimony.

         Issues: Claimant is seeking 500 weeks of permanent partial disability benefits with respect to a 1981 back injury. He also seeks attorney's fees and a 20% penalty. Pacific contends that if claimant is awarded permanent partial disability benefits, it is entitled to an offset for the occupational disease benefits it has paid to claimant since October 11, 1993.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor of the witnesses, the exhibits, the deposition testimony, and the parties' arguments, the Court makes the following:

         FINDINGS OF FACT

         1. At the time of trial claimant was 35 years old. He is a high school graduate.

         2. Claimant worked for Stauffer Chemical Company (Stauffer[1]) from 1977 until June 1993. He was initially employed in temporary positions cleaning furnaces but became a permanent employee in 1978. He has held various positions with the company, all of which involve heavy manual labor.

         3. On May 24, 1981, claimant injured his back at work when he was "rodding" slag in a precipitator with an iron bar. He heard a pop in his back and experienced immediate low-back pain.

         4. At the time of claimant's 1981 injury, Stauffer was insured by Pacific Employers Insurance Company. Pacific accepted liability for the claim and paid claimant temporary total disability and medical benefits.

         5. Between 1981 and 1992 claimant suffered a number of injuries or incidents which caused acute episodes of low-back pain and in some instances pain radiating into his legs.

a. In September 1982 claimant experienced back pain while hauling wood (Ex. 1 at 17) but did not remember any specifics of the incident.
b. On January 20, 1983, while working at Stauffer, claimant experienced sharp pain in the center of his back and in his buttocks when pulling on a 36" pipe wrench.
c. On January 25, 1983, claimant experienced acute pain in his back and buttocks while using a hammer and stick to pound in packing around electrodes. The incident occurred at work.
d. On March 14, 1984, claimant experienced sharp pain in his lower back when he tried to get out of the way of a steam hose. The incident occurred at work.
e. On January 28, 1985, while using a jack hammer to break off slag at work, claimant again experienced back pain.
f. On January 8, 1989, claimant rolled a snowmobile. While trying to pick it up he felt acute back pain.
g. On July 1, 1990, claimant fell from a ladder and felt back pain when he landed. (Ex. 1 at 66-68.)
h. On September 9, 1991, claimant was involved in an accident with a three-wheeler vehicle. He initially separated his shoulder but shortly after the accident he also began experiencing back pain. Dr. Canty, who treated him for the accident, recorded on September 9, 1991, that he was suffering back pain. (Canty Dep. at 19; Dep. Ex. 1.)
i. Dr. Patrick R. Robins' office notes refer to yet another injury occurring March 3, 1993. (Robins Dep. at 10 and Dep. Ex. 1.) The Court has not been provided with any details regarding that injury.

         6. Claimant also suffered a lumbar sprain on March 8, 1981, when lifting tires off a truck at home. (Ex. 13 at 1.) The history of this injury was not presented to the physicians who testified in this case. Thus, they did not have an opportunity to address what, if any, significance the injury has with respect to the claimant's current condition. Lacking their assessments of the injury, I have given this prior injury no significance or weight in reaching my decision.

         7. Following each of the incidents listed in paragraph 5, claimant was treated by a physician or chiropractor. Dr. Charles Canty, an orthopedic surgeon, treated claimant for his May 24, 1981 and September 9, 1991 injuries. (Canty Dep. at 8, 18-20.) Dr. R. J. Best treated claimant following the September 1982 and January 25, 1983 incidents. (Ex. 1 at 12, 17.) Dr. Douglas Smithson, a chiropractor, treated claimant following the January 20, 1983 incident. (Id. at 11, 13.) Dr. James Paulmann, a chiropractor, treated claimant following the January 28, 1985 incident. (Id. at 229.) Dr. John J. Sands, a chiropractor, treated him following the January 8, 1989 snowmobile accident. (Id. at 219.) Emergency room physicians at St. James Community Hospital treated him following his July 1, 1990 fall from a ladder. (Id. at 66-68.) Finally, Dr. Robins saw him following the March 3, 1993 incident. (Id. at 208.) Claimant was also treated for a time in 1993 and 1994 by Dr. Bruce Knutsen. (Id. at 56-61.)

         8. Claimant lost work following his injuries of May 24, 1981, September 1982, January 20, 1983, January 25, 1983, and January 28, 1985. (Ex. 1 at 10, 12, 223-224, 229 and Ex. 14.)

         9. Dr. Canty testified concerning his treatment of claimant following the May 24, 1981 injury. He first examined claimant on May 29, 1981, and discharged claimant from his care on June 19, 1981. (Canty Dep. at 8, 14.) He diagnosed a probable herniated nucleus pulposus or a disk extrusion at the left lumbosacral level. (Id. at 9.) That diagnosis was based on a positive response to straight raising of the left leg test. (Id.) By June 19, 1981, claimant had improved sufficiently for Dr. Canty to release him to work. (Id. at 11.) In Dr. Canty's opinion, claimant's herniated disk had returned to its normal anatomical configuration and claimant could work without restrictions. According to Dr. Canty, claimant suffered no permanent impairment. (Id. at 13.)

         10. Claimant underwent an MRI of his low back on February 19, 1992. (Ex. 1. at 39.) At the L4-5 level, the MRI disclosed a "large extruded disc that is central, slightly to the left, but it extends to the right into the lateral portion of the spinal canal." (Id.) It also identified a "large lateral herniated disc that is entirely lateral on the left" at the L5-S1 interspace. (Id.) Finally, it disclosed degenerative disk changes at the L4-5 and L5-S1 levels. (Id.)

         11. Following the MRI, claimant was treated by Dr. Patrick Robins, who is an orthopedic surgeon. Dr. Robins first examined claimant on March 2, 1992, at which time claimant was having mechanical low-back pain but no significant symptoms of sciatica. (Ex. 1 at 207; Robins Dep. at 10.) Dr. Robins saw claimant again on March 17, 1992, and noted that claimant had reinjured his low back on March 3, 1992. (Robins Dep. at 10.) Following the March 3, 1992 injury, claimant began experiencing sciatica in the right lower extremity. (Id.) During a follow-up visit ...


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