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Darling v. Kalispell Regional Hospital

Court of Workers Compensation of Montana

December 4, 1995

MARION J. DARLING Petitioner
v.
KALISPELL REGIONAL HOSPITAL Employer/Insurer.

          September 26, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Parties disputed whether work injury of nurses aide permanently aggravated her degenerative osteoarthritis.

         Held: Where claimant had not returned to pre-injury status before exacerbation of back condition during vacation, respondent is liable for permanent aggravation of her underlying condition.

         Topics:

Injury and Accident: Aggravation: Generally. Where claimant had not returned to pre-injury status before exacerbation of back condition during vacation, respondent is liable for permanent aggravation of her underlying condition.
Injury and Accident: Non-Work-Related. Where claimant had not returned to pre-injury status before exacerbation of back condition during vacation, respondent is liable for permanent aggravation of her underlying condition.

         The trial in this matter was held on September 26, 1995, in Kalispell, Montana. Petitioner, Marion J. Darling (claimant), was present and represented by Mr. David W. Lauridsen. Respondent, Kalispell Regional Hospital (Hospital), was represented by Mr. Todd A. Hammer. Claimant, Lynn Stevenson, Ann Ingram, Julie Anderson, and Dr. Michael Righetti were sworn and testified. The depositions of Marion J. Darling and Andrew James Hvidston, M.D. were submitted for the Court's consideration. Exhibit one was admitted except for pages 84 through 103. Exhibits 2 through 10 were admitted without objections.

         Issues presented: The substantive issue presented is whether claimant's industrial injury of November 8, 1994, permanently aggravated her preexisting degenerative osteoarthritis. Claimant also seeks attorney fees, costs, and a penalty.

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

         FINDINGS OF FACT

         1. Claimant is presently 53 years of age. She has a GED and has worked as a nurses aide for a number of years.

         2. Claimant has degenerative osteoarthritis dating back to the early 1980's. Her osteoarthritis extends to, but is not limited to, her lower back. (Ex. 1 at 1-3.) Since 1980 she has been treated on numerous occasions for flare-ups of low-back pain. (Id.) Over the years she has taken medications for her arthritis, including Feldene, Daypro, Clinoril, Naprosyn, and Ibuprofen.

         3. Claimant's medical records reflect the following relevant history concerning her history of low-back pain.

a. The office notes of Oscar A. Swenson, M.D., who has treated claimant over the years, mention the onset of arthritis in early 1980. Claimant's arthritis affects her low back, hands, and neck. (Ex. 1 at 105-133.)
b. Dr. Swenson's office note of December 15, 1983, notes a history of back pain. (Id. at 107.)
c. On November 8, 1983, Dr. Swenson noted a worsening of claimant's arthritis, especially in her neck, but did not specifically note back pain. However, on December 15, 1983, he specifically noted low-back pain. (Id. at 107.)
d. On August 29, 1985, Dr. Swenson noted that claimant's back pain "has gotten worse" and that her pain was "[u]ncontrolled by Feldene 20 mg bid." (Id. at 109.) However, his notes do not indicate that her back pain continued to be uncontrolled and it is apparent from his later notes, other medical information, and claimant's own testimony that claimant was experiencing an acute episode on that date and that her condition thereafter improved.
e. On January 29, 1990, claimant sought chiropractic treatment for low-back pain. The chiropractic history taken on that date reflects that claimant had a history of osteoarthritis of the lower back. At the time of the examination claimant was experiencing a "very uncomfortable back - (small)" and "sharp pains in [her] (R) thigh [that] seemed to radiate from [the] back." (Id. at 27; parenthesis in original.) It further states that claimant was experiencing low-back pain, neck stiffness and soreness, pain between her shoulders, and pain in her buttocks. (Id.)

         4. On January 27, 1992, claimant again sought chiropractic care for low-back pain. The chiropractor's record reflects that claimant was experiencing low-back pain and had difficulty standing erect for long periods. (Id. at 30.) The record further indicates that claimant's acute episode of pain was triggered by an incident at work. (Id.) By April 17, 1992, claimant was reporting that her January acute episode of back pain had resolved. (Id. at 139.)

         5. On October 12, 1992, claimant reported that she was having low-back pain. She did not relate her pain to a specific incident at work. On October 13, 1992, she was treated by Timothy Heaps, a chiropractor. His report indicates that she had a headache and pain extending down her neck into her lower back. (Ex. 1 at 38.) She was also complaining of lower-right leg pain. (Id.) Claimant was again seen by Dr. Heaps on October 15, 1992. Her symptoms had significantly improved. (Id.) On October 16, claimant reported that she was not having any problems working. In a written report, Dr. Heaps commented:

It is my opinion that Mrs. Darling is suffering from a chronic spinal degenerative condition that will necessarily predispose her to these exacerbations that she experiences. I could not say that this recent complaint is directly attributable to any particular work event although obviously any excessive physical exertion is likely to create a potential symptomatic episode.

(Id. at 38.) On October 19, 1992, claimant reported to Occupational Health Services (OHS), which was employed by the Hospital to monitor and assist injured workers[1], that she was able to continue working but complained that she hurt more if she worked a 12hour shift. (Id. at 142-144.) She was limited to working eight-hour shifts. (Id. at 144.) On October 19, 1992, Dr. Heaps released claimant to return to work without restrictions. (Id. at 39.)

         6. Claimant filed a claim for compensation with regard to her October 1992 back condition. (Ex. 2.)

         7. She was seen by Dr. John V. Stephens, a physiatrist, on December 15, 1992, as part of an occupational disease panel evaluation. At the time of the examination claimant reported that her pain was:

a dull ache in the lower back, kind of coming up into the lower mid-back region. Intermittently she will get a tingling sensation down the posterior thigh, posterior calf, and in the bottom of her right foot. She states this occurs if she stands for a long shift, say 8-12 hours or does heavy lifting. She states that sometimes her right foot almost feels swollen. She relates her pain is increased by sitting more than 30 minutes, by driving more than 60 minutes or heavy lifting.

         (Ex. 1 at 3.) Dr. Stephens diagnosed her low-back condition as "degenerative lumbar disease." (Id. at 1.) He opined that her condition was an occupational disease and commented, "There is no indication on this examination that any factors other than work have contributed to her back condition though I should note that she has not had other evaluation, such as an arthritic panel, that might reveal some systematic arthritic condition." (Id.) Finally, he concluded that she was at maximum healing and placed no restrictions on her return to work but commented that "occasional chiropractic treatment would be reasonable." (Id.)

         8. On October 4, 1993, claimant again sought chiropractic treatment from Dr. Heaps. She reported that she was injured while lifting a wheelchair at work, and that she had pain in her neck, lower back, and legs. (Id. at 42.) She was then seen by Dr. Loren S. Vranish, a family practitioner, on October 5, 1993. He released her to work eight-hour shifts on October 7, 1993. (Id. at 61A.) She thereafter returned to work without restrictions. (Ex. 1 at 45, 64.)

         9. Claimant filed a claim for compensation with respect to the October 1993 incident. (Ex. 3.)

         10. Following her return to work in October 1993, claimant continued to have occasional chiropractic treatments. Chiropractic records reflect treatments on November 17, 1993, March 14 and 18, 1994, April 27, 1994, August 12, 1994, and September 12, 1994.

         November 8, 1994 Injury

         11. On November 8, 1994, claimant again experienced acute low-back pain while lifting a patient in the course and scope of her employment as a nurses aide at the Hospital. She filed a claim for compensation. (Ex. 4.)

         12. At the time of claimant's November 1994 injury, the Hospital was self-insured. It accepted the claim.

         13. On November 8, 1994, claimant resigned her employment effective November 18, 1994, so that she could take an extended vacation with her husband. Her resignation was coincidental to her injury: she did not resign on account of the injury. She planned to reapply for employment upon her return from her vacation.

         14. Occupational Health Services provides medical case management services for injured hospital employees. While it provides services for employees of the Hospital, it also provides services to employees of other employers. One of its employees is Ann Ingram, a nurse practitioner.

         15. On November 9, 1994, Ms. Ingram examined claimant. She diagnosed a "[r]ight cervical strain and LS strain secondary to transferring injury ...


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