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Liberty Northwest Insurance Corp. v. Burch

Court of Workers Compensation of Montana

November 27, 1995

LIBERTY NORTHWEST INSURANCE CORPORATION Petitioner/Insurer
v.
GERALD A. BURCH Claimant/Respondent and CHAMPION INTERNATIONAL CORPORATION Respondent/Employer.

          Submitted: November 2, 1995

          ORDER AND JUDGMENT

          Mike McCarter JUDGE

         Summary: Insurer of successor employer sought reimbursement for benefits paid on behalf of mill employee, contending benefits resulted from natural progression of injury suffered under predecessor, self-insured employer.

         Held: Where the only medical opinion concludes that claimant suffered from "continued" impingement of his right shoulder, and claimant testified he suffered no new dislocations or trauma but simply had pain in certain activities, the predecessor employer is responsible for the condition as a natural progression of a prior injury.

         Topics:

Injury and Accident: Natural Progression. Where the only medical opinion concludes that claimant suffered from "continued" impingement of his right shoulder, and claimant testified he suffered no new dislocations or trauma but simply had pain in certain activities, the predecessor employer is responsible for the condition as a natural progression of a prior injury.

         This case came on for trial in Missoula, Montana, on October 24, 1995. Petitioner, Liberty Northwest Insurance Corp. (Liberty), was represented by Mr. Larry W. Jones. Respondent Gerald A. Burch (claimant) was present and represented by Mr. Rex Palmer. Respondent Champion International Corporation was represented by Mr. Robert E. Sheridan.

         Exhibits 1 through 10 were admitted by agreement of the parties. The parties also agreed to submit claimant's deposition for the Court's consideration. Claimant, Thomas C. McCoy, Edward R. Roberts and Lucy Heintz were all sworn and testified.

         Issue presented: Liberty's petition seeks reimbursement from Champion for compensation and medical benefits paid by Liberty to claimant on account of a right shoulder condition.

         Facts: Claimant injured his right shoulder on May 9, 1990, while employed by Champion as a spreaderman at its wood products mill. His claim for compensation was accepted by Champion, which was self-insured.

         Claimant was off work for several weeks and was treated with medication and physical therapy. He thereafter returned to work and continued working for Champion until the mill was purchased by Stimson Lumber in November 1993. However, following his injury claimant did not return to full-time duties as a spreaderman and worked various jobs at the mill, including occasional spreader work, which was the most physically demanding work vis-à-vis claimant's shoulder. Claimant continued to experience occasional flare-ups of his shoulder pain.

         After its purchase of the mill, Stimson hired claimant as a full-time spreaderman commencing in early 1994. Claimant worked 10 hour days, 4 days a week. His shoulder pain worsened and he negotiated a resignation from Stimson within 90 days of his employment. Then, on account of his continuing shoulder pain, and only after urging by his attorney, in May 1994, the claimant returned to his physician for the first time since 1990. His physician recommended surgery and that surgery was ultimately performed in March 1995.

         In November 1994, claimant filed a second claim for compensation, this time with Liberty, which insured Stimson. Liberty thereafter paid both compensation and medical benefits but argues in this action that claimant's surgery and underlying shoulder condition were caused by his 1990 injury. Champion contends that claimant's condition is the result of an injury or occupational disease occurring while he was employed by Stimson.

         Bench ruling: At the close of trial, the Court noted that the only medical opinion presented at trial regarding causation was found in a note of Dr. Wood, claimant's treating physician, who wrote on May 6, 1994, "Continued impingement, right shoulder." (Ex. 1 at 1; emphasis added.) Dr. Wood's original diagnosis in 1990 was "[b]iceps tendonitis[sic] and mild impingement right shoulder." (Ex. 1 at 2.) He noted on May 6, 1994, that claimant reported that he had not suffered any dislocations or further trauma and that his pain was mainly associated "with activity in certain motions." (Ex. 1 at 1.) I entered a bench ruling finding that claimant's shoulder condition in 1994 was the result of a natural progression of his shoulder condition which resulted from his ...


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