Submitted date: August 25, 1995
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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
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:
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.
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.
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."
X-rays revealed "No Significant Abnormality
Defined." (Id. at 6.)
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.)
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
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.
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.)
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
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.)
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.)
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.)
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.)
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.
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.)
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.
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.)
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 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.
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.)
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.)
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.)
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.)
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
(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.)