Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kloepfer v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

September 18, 1995

VICTORIA KLOEPFER Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BECHTEL CONSTRUCTION COMPANY Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER, JUDGE

         Summary: 45-year-old laborer, with ninth grade education and history of working as house cleaner, cashier, photo finishing worker, nurses aide, and receptionist-trainee, sought permanent total disability benefits following occupational disease consisting of tendinitis or fibromyalgia. Physician who performed back surgery on claimant and followed her recovery opined she could return only to part-time employment. IME physicians found no neurological or physical deficits other than decreased range of motion and believed claimant was capable of working. Indeed, she opined that chronic pain patients often benefit by returning to work because work increases their self esteem and can take their mind off their pain. She opined that patients with more severe pain than claimant return to work. Chronic pain expert testified that claimant's pain is amplified by psychological factors and that claimant lacked the motivation to return to work. Vocational expert identified jobs that exist in Montana within claimant's qualifications.

         Held: Noting that surgeon's medical opinion was based on claimant's pain reports rather than any objective physical limitations, WCC was not persuaded that claimant's pain precludes her from returning to work. Rather, the Court was persuaded that claimant's ability to return to work was purely a function of her motivation.

         Topics:

Benefits: Permanent Total Benefits: Pain as Disabling. While pain must be considered in determining the ability of an injured worker to return to work, WCC was persuaded this claimant's ability to return to work was purely a function of her motivation. Although surgeon opined she could work part-time only, his opinion was based on claimant's pain reports, not objective physical limitations. More persuasive opinions came from IME conducted by occupational health and chronic pain experts who found no neurological or physical deficits, pain amplified by psychological factors, and lack of motivation to work. The Supreme Court affirmed in Kloepfer v. Lumbermen's Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996), finding substantial evidence to support the WCC's finding.
Disability: Permanent Total. While pain must be considered in determining the ability of an injured worker to return to work, WCC was persuaded this claimant's ability to return to work was purely a function of her motivation. Although surgeon opined she could work part-time only, his opinion was based on claimant's pain reports, not objective physical limitations. More persuasive opinions came from IME conducted by occupational health and chronic pain experts who found no neurological or physical deficits, pain amplified by psychological factors, and lack of motivation to work. The Supreme Court affirmed in Kloepfer v. Lumbermen's Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996), finding substantial evidence to support the WCC's finding.
Pain. While pain must be considered in determining the ability of an injured worker to return to work, WCC was persuaded this claimant's ability to return to work was purely a function of her motivation. Although surgeon opined she could work part-time only, his opinion was based on claimant's pain reports, not objective physical limitations. More persuasive opinions came from IME conducted by occupational health and chronic pain experts who found no neurological or physical deficits, pain amplified by psychological factors, and lack of motivation to work. The Supreme Court affirmed in Kloepfer v. Lumbermen's Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996), finding substantial evidence to support the WCC's finding.

         The trial in this matter was held on August 16 and 17, 1995, in Billings, Montana. Petitioner, Victoria Kloepfer (claimant), was present and represented by Mr. James G. Edmiston, III. Respondent, Lumbermens Mutual Casualty Co. (Lumbermens), was represented by Mr. Steven S. Carey.

         Witnesses and Depositions: The claimant, Juanita Hooper, Dana Headapohl, M.D., Martin Cheatle, Ph.D., and Peter V. Teal, M.D. testified at trial. Dr. Teal's testimony was taken at his office. The depositions of claimant, Dana Headapohl, M.D., Michael Lahey, M.D., Ethan Russo, M.D. and Martin Cheatle, Ph.D. were also submitted to the Court for its consideration.

         No transcript of the trial has been prepared and therefore is not cited in this decision.

         Exhibits: With the exception of pages 249 through 288 of Exhibit 1, Exhibits 1 through 4 were admitted by agreement of the parties. Claimant objected to pages 249 through 288 on relevancy grounds. Having reviewed those pages, I found nothing in them which will assist me in reaching my decision in this case. The objection is therefore sustained.

         Issues Presented: Petitioner seeks an adjudication that she is permanently totally disabled as a result of her back injury of April 14, 1992, and that she is therefore entitled to permanent total disability benefits. She also seeks attorney fees and costs.

         Prior Proceedings: In a previous proceeding this Court determined that back surgery performed on claimant on June 2, 1993, was reasonable treatment for her April 14, 1992 injury. I ordered Lumbermens to pay for the surgery and to pay temporary total disability benefits during claimant's period of recuperation. Victoria Kloepfer v. Lumbermens Mutual Casualty Co., WCC No. No. 9305-6796, Findings of Fact, Conclusions of Law and Judgment (January 18, 1994) (referred to hereinafter as Kloepfer I). At trial the parties agreed that the depositions, testimony and exhibits admitted in the prior proceedings may be considered by the Court in reaching its decision in the present case.

         * * * * *

         Having considered the Pre-trial 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.Claimant is 45 years old. She is a divorced mother of three. One of her three children, a fourteen year old daughter, is still living at home.

         2.Claimant has a ninth grade education. Her work history includes jobs as a house cleaner, cashier/checker, photo finishing worker, nurses aide, and receptionist-trainee. (Ex. 2, pg. 14.) However, her employment has been sporadic and short-term. Between 1974 and 1986 she held no significant employment. (Kloepfer I at 1.) Between 1987 and 1991 she worked sporadically as a construction laborer. (Id.) She has never been employed in any one position for an extended period of time.

         3.From April 1991 until September 24, 1991, the claimant worked as a general laborer for Bechtel Construction Company at its Conoco Refinery in Billings, Montana. Claimant filed an occupational disease claim for tendinitis or fibromyalgia arising while she was employed by Bechtel. At the time of the claim, Bechtel was insured by Lumbermens, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.