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Killoy v. Reliance National Indemnity

Court of Workers Compensation of Montana

November 7, 1995



          Mike McCarter, Judge

         Summary: Claimant sought permanent total disability benefits, testifying that jobs identified by the insurer would increase his pain and make him a "cranky" employee.

         Held: While the Court was persuaded claimant does have pain and that activity increases his pain, it was not convinced that claimant's pain physically prevents him from working as either a motel clerk or cashier.

         The trial in this matter was held on August 30, 1995, in Butte, Montana. Petitioner, Edward Killoy, Jr. (claimant), was present and represented by Mr. Bernard J. Everett. Respondent, Reliance National Indemnity (Reliance National), was represented by Mr. Brendon J. Rohan. The claimant testified on his own behalf. Patricia Hink, a certified rehabilitation counselor, also testified. Exhibits 1 through 6 were admitted by stipulation. Exhibit 7 was admitted without objection. The parties agreed that the depositions of claimant and Dr. Richard C. Dewey may be considered by the Court.

         A partial trial transcript has been prepared. Unless otherwise noted, the facts found herein are based on the trial testimony or on claimant's deposition.

         Issues: Claimant seeks permanent total disability benefits, attorney fees and costs, and a penalty. Respondent contends claimant is not permanently totally disabled and that he is not entitled to fees, costs, or a penalty.

         * * * * *

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


         1. Claimant was 58 years old at the time of trial. He did not graduate from high school but obtained a GED when he was in the Navy. He has no further formal education. He served two years active duty in the Navy and eight years in the Naval Reserves.

         2. Since 1956 claimant has principally worked as a mechanic. He was trained as a heavy-duty automotive mechanic in an apprenticeship program beginning in 1962. He is certified by the State of Montana as a heavy-duty mechanic. Since 1962 he has worked for various employers, primarily as a heavy-duty mechanic.

         3. He worked for Rhone-Poulenc Basic Chemicals Company (then known as "Stauffer") for a few months in both 1986 and 1987 as a mechanic. He then went to work for the company full-time in April 1991.

         4. Claimant was injured in the course and scope of his employment with Rhone-Poulenc on August 20, 1993. He was injured when a large, heavy shaker screen, which he and three other employees were lifting, fell and struck him on the head, jamming his neck.

         5. At the time of claimant's injury, Rhone-Poulenc was insured by Reliance National Indemnity, which accepted liability for claimant's injury. Reliance has paid medical benefits and paid claimant temporary total disability benefits until May 27, 1995, when it converted his benefit status to permanent partial disability. Since May 27, 1995, it has paid claimant permanent partial disability benefits at the rate of $181 per week.

         6. Following his industrial accident, claimant was initially examined by Dr. Bruce Knutsen on August 23, 1993. At that time claimant was complaining of severe neck pain with radiation of the pain into his shoulders. He also complained of numbness in his fingers. X-rays showed "[d]egener-ative disc changes, spurring, and some narrowing of the lower foramina." Dr. Knutsen prescribed physical therapy and medication, directed that claimant be placed on light duty, and ordered an MRI scan of the neck. (Ex. 4 at 1.)

         7. On August 27, 1993, claimant told Dr. Knutsen that his light-duty work was aggravating his neck pain. Dr. Knutsen advised him to take a full week off of work. (Id. at 2.)

         8. Dr. Knutsen continued to treat claimant conservatively. He prescribed rest, physical therapy, cervical traction, and medication. Claimant remained off work. Although he initially reported his condition as improving with physical therapy, his condition then deteriorated and he was referred to Dr. Richard Dewey for a second opinion. (Killoy Dep. at 25-26; Ex. 4 at 2-6.)

         9. Claimant was examined by Dr. Dewey on October 14, 1993. Dr. Dewey interpreted the MRI as showing "significant cervical canal stenosis at L4-5, 5-6 and 6-7 [sic]. There is degenerative disc disease at these levels, some neuroforaminal encroachment." (Ex. 1 at 2.) The reference to lumbar disks appears to be in error, and should refer to the cervical level. (Dr. Dewey was interpreting a cervical, not a lumbar MRI. An L-6 vertebra is an oddity, and the Court has never heard of an L-7 vertebra.) There were no radicular findings. Dr. Dewey advised claimant to engage in an aggressive stretching program and requested that he return in three or four weeks. (Id.)

         10. Claimant returned to see Dr. Dewey on November 9, 1993. Dr. Dewey reported that claimant was much improved. He felt that decompression surgery was unwarranted and advised claimant to continue his stretching exercises and return for a yearly examination to determine whether his spinal stenosis was progressing. (Id. at 4.)

         11. Claimant was released to full-duty work on November 16, 1993 by both Dr. Dewey and Dr. Knutsen. (Ex. 4 at 7.) Dr. Knutsen advised claimant to avoid any trauma to or hyperextension of his neck. (Id.)

         12. Claimant returned to work but experienced increasing pain in his neck. Dr. Knutsen took claimant off work on December 14, 1993, due to his increased neck pain. (Id.) Over the next two weeks, claimant's condition improved and he ...

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