Submitted: July 6, 1995
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
in Briney v. Pacific Employers Insurance Co., 283
Mont. 346, 942 P.2d 81 (1997).
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.
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).
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
transcript has not been prepared. Unless otherwise noted, the
facts found herein are based on trial testimony.
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.
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:
the time of trial claimant was 35 years old. He is a high
Claimant worked for Stauffer Chemical Company
(Stauffer) 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
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
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.
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.
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
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
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.)
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.)
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.)
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 ...