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Harding v. Wausau Underwriters Insurance Co.

Court of Workers Compensation of Montana

September 27, 1995


          Submitted date: August 25, 1995


          Mike McCarter Judge

         The trial in this matter was held on July 26, 1995, in Missoula, Montana before Court appointed Hearing Examiner, Clarice V. Beck. Petitioner, John L. Harding, was present and represented by Mr. Howard Toole. Respondent, Wausau Underwriters Insurance Company, was represented by Mr. Kelly M. Wills. The claimant testified on his own behalf. Ernie Hunt, Robert Hunt, Jim Umphries and Bill Whalen testified. Exhibits 1 through 11 were admitted by stipulation of the parties. The depositions of claimant, Mark F. Rotar, M.D. and Randy Keeble were submitted for the Court's consideration. The deposition of Julie Hunt Zembel was admitted over the objection of Mr. Toole.

         Issues: Whether the claimant is entitled to permanent partial disability benefits based on physical restrictions resulting from his July 6, 1994 industrial injury, and his entitlement, if any, to rehabilitation benefits, and attorney fees and costs.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and the exhibits, the Court makes the following:


         1. At the time of trial the claimant was 29 years old. He had obtained his GED and had attended classes at the Salish Kootenai Community College in 1991 and 1992.

         2. On or about July 6, 1994, the claimant sustained an industrial injury arising out of and in the course and scope of his employment with Hunt's Timbers. (Uncontested Fact 1.) At the time of the injury the employer was insured by Wausau Underwriters Insurance Company, which accepted liability and has paid various workers' compensation benefits.

         3. Claimant was seen by Dr. M. H. Genich at the Garden Wall Clinic in St. Ignatius, Montana, on July 7, 1994. Dr. Genich noted that claimant's chief complaint was of "[b]ack pain 2 days." His assessment was "[a]cute strain lumbar spine." X-rays were ordered and Tylenol #3 and Voltaren were prescribed. (Ex. 6 at 5.) The claimant reported to the doctor that his pain was the result of work the previous day when he was doing "heavy lifting." (Id.)

         4. The X-rays revealed "No Significant Abnormality Defined." (Id. at 6.)

         5. Claimant was seen by Dr. Genich on three more occasions in July. The first visit recorded his complaint of "[p]ersistent back pain." (Id. at 7.) On July 13, it was noted the claimant was improving and that he could return to "light duty" work the following Monday. (Id. at 8.) The final visit on July 18, 1994, noted he was still "[s]ore/can't bend down [without] holding on." His condition was improved and he was to consult with Dr. Rotar in August and continue rehabilitation. (Id. at 9.)

         6. Two days later, on July 20th, the claimant was seen by Dr. Ferril, an associate of Dr. Genich at the Garden Wall Clinic. He noted that claimant's assessment was "resolving lumbar muscle spasms." The doctor authorized the claimant to return to "light duty," with "no lifting over 15 pounds" and that "[f]ull recovery is anticipated." (Id. at 2.) It was also noted by the doctor that claimant had gone to a chiropractor the previous week.

         7. The employer's first report was filled out on July 20, 1994, and signed by the claimant and Ernie Hunt, employer. In this report the employer questioned whether an accident had occurred (Ex. 1 at 2), indicating he had information the claimant's back was sore but it was not work-related. This doubt was resolved in favor of the claimant and the insurer accepted liability.

         8. A follow-up visit with Dr. Ferril on July 29th resulted in the claimant being released to return to work without restrictions. The doctor did spend time discussing back safety and leverage techniques with the claimant in an effort to prevent reinjury. (Ex 6. at 3-4.) During this visit the claimant asked to be "cleared for fire fighting," but the doctor indicated a "[h]old on firefighting for now." (Id. at 3.)

         9. Claimant returned to work and was able to perform his job. Ernie Hunt, employer, testified that he watched the claimant for a period of time when he returned to work to be certain claimant was able to perform the job. Ernie Hunt, the claimant and Leila Roberts, office manager, met sometime in August 1994, at which time the claimant was cautioned not to do lifting beyond his capability. The claimant recalled this meeting, but not the specific caution about lifting beyond his capacity.

         10. On September 20, 1994, the claimant was seen by Dr. Mark Rotar for an evaluation of his lower back. Dr. Rotar's impression was "[a]cute lumbar strain." (Rotar Dep. Ex. 1.) The claimant was advised to wear a back brace, which he had purchased following an earlier back episode, on an as needed basis and to use an anti-inflammatory, also on an as needed basis. No other medication was required. Dr. Rotar stated the claimant could return to his work but he needed to be "somewhat cautious with his activities." In response to the claimant's question regarding whether the injury was related to previous back problems, Dr. Rotar wrote, "Quite frankly I doubt it, he's been asymptomatic for a number of years now and I think he simply over did it with his back on this latest job. (Id.)

         11. A comparison by Dr. Rotar of the X-rays taken on May 9, 1991, and those taken July 7, 1994, showed no significant change in the claimants back. (Id.)

         12. The claimant continued to perform all of his job duties at Hunt's Timbers until December 6, 1994, when he developed back pain while carrying poles and "doing ends and caps." (Id.) The claimant went to the clinic in St. Ignatius and was given prescriptions for Robaxin and Motrin. On December 19, 1994, claimant was examined by Dr. Rotar and reported he had "slipped and almost did the splits and fell to the ground." The claimant's pain was in his low-back with some pain into the buttocks. Additionally, for the first time there was a new discomfort in the lower thoracic region. There was no radicular pain, no weakness or numbness. Dr. Rotar's impression was "[b]ack strain" and he recommended claimant fill his prescriptions and arrangements were made for physical therapy with Bruce McMillan in Ronan. (Id.)

         13. Claimant received physical therapy treatments from January 4 to January 19, 1995. The physical therapist noted on January 13, 1995, "I would very much like to see him get into some sort of academic work as I think he is a high risk for being a back invalid if he continues this present job pattern." (Ex. 7 at 7.) When claimant was released from his care, the physical therapist stated, "[T]his patient will need to continue exercises indefinitely due to the state of his back." (Id. at 8.)

         14. The claimant did not file a claim for compensation as a result of this incident. The claims adjuster for Wausau, William Whalen, testified that the insurer treated the December incident as an aggravation of the July injury as the claimant had not reached maximum medical improvement when it occurred. The insurer paid medical and compensation benefits.

         15. Claimant returned to Dr. Rotar on January 5, 1995, reporting that he was still stiff but better than he had been in a year and half. He had taken his medication and did not want anymore. Claimant was told to continue his physical therapy program and return in four weeks. (Rotar Dep. Ex. 1.)

         16. On Tuesday, January 17, 1995, the claimant returned to Dr. Rotar. He had been discharged from physical therapy and given a home exercise program. Dr. Rotar found claimant had reached MMI. Dr. Rotar did not think there was any permanent impairment. Claimant was given a work release for light-duty activities for the coming Monday, with a full release the following week. The doctor encouraged the claimant to consider a different type of work or reeducation.

         17. On the 25th of January the claimant called Dr. Rotar to discuss his return to work and college. Many of the claimant's questions were legal questions and Dr. Rotar was unable to answer them. (Id.)

         18. Claimant returned to work, but due to the unavailability of work at Hunt's Timbers, worked only part-time. By letter, dated February 8, 1995, claimant was notified his time-loss benefits and medical benefits would terminate on February 22, 1995. (Ex 11 at 1.)

         Prior Injuries

         19. Prior to the injury of July 1994, the claimant suffered an industrial injury to his low-back while working for Logcrafters on May 7, 1991. The insurer for Logcrafters was State Compensation Insurance Fund, which accepted liability and paid workers' compensation benefits.

         20. On May 17, 1991 claimant began treatment with Dr. Rotar. Dr. Rotar determined that claimant suffered from "[a]cute lumbar strain." Voltaren and Flexoril were prescribed, as well as physical therapy. (Rotar Dep. Ex. 1.)

         21. Claimant received physical therapy treatments from May 20, 1991 through July 22, 1991. The goal of the physical therapy was to teach the claimant an independent home exercise program and the use of proper body mechanics. There is no indication that the claimant was unable to return to his time- of-injury work or of any restrictions being recommended by the physical therapist. (Ex. 7 at 1-6.)

         22. On June 13, 1991, while moving a toilet across his yard, the claimant experienced acute pain in his right lower back. This resulted in his having to go to the emergency room where he was given an injection and started on muscle relaxants. (Ex. 5 at 2.)

         23. On June 20, 1991, Dr. Rotar stated the June 13th incident was an aggravation of claimant's preexisting condition and emphasized the need for a stretching program. Claimant was given a prescription for physical therapy and for Flexoril which was to be used in the event of an acute spasm attack. (Ex. 3 at 2.) On July 1, 1991, the claimant was experiencing a lot less spasm and was more mobile. (Id. at 3.)

         24. A second consultation was made on July 22, 1991. The examination resulted in the following report:

He still has some stiffness at end points of motion. He is much more flexible and smoother than he has been in the past. I think that he can return to work and will release for work on August the 1st. I think he will need to be somewhat cautious at work. If he can return to a job that is much less heavy lifting involved I think he would be safer. He can lift heavy weights but he needs to do this on a much less frequent basis. I warned him that returning to his previous job may be an invitation to have further problems. I will see him on a PRN basis.

(Ex. 3 at 14.) Dr. Rotar signed a Request for Medical Information form for the State Fund on August 8, 1991, which specifically noted that the claimant can now work "[f]ull time without restrictions." (Ex. 3 at 15.) ...

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