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Ostwald v. Plum Creek Manufacturing

Court of Workers Compensation of Montana

December 19, 1995

BRIAN OSTWALD, Petitioner,
v.
PLUM CREEK MANUFACTURING, Respondent/Employer.

          Date Submitted: December 12, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: A sawmill worker with history of work-related back trouble told employer he "was trying to shut kelm [sic] door lifting over tracks and felt a pop in lower back with sharp burning pain and lost feeling in left leg." Adjusting firm denied claim under Workers' Compensation Act, on ground the incident did not meet the statutory definition of accident and injury. At trial, citing Belton v. Carlson Transport, 202 Mont. 384 (1983), employer argued the claim was not compensable because claimant suffered an earlier occupational disease and had not reached MMI.

         Held: Denial of claim under WCC was unreasonable where claimant described an unexpected unusual strain, identifiable by time and place and by part of the body affected, and caused by a single event during a single work shift. The incident was an "unusual strain" in the classical sense. In addition, though insurer invoked procedures of the Occupational Disease Act, DOL appointed physician described incident as injury. Belton argument is misplaced; that rule is an exception to the more general rule that the employer and insurer take the worker as they find him and has not been extended to situations where no prior claim has been filed or where no insurer is already liable for the existing condition. Attorneys fees awarded, but not penalty where Pretrial Order contained no request for penalty.

         Topics:

Attorneys Fees: Cases Awarded. Attorneys fees awarded where adjusting firm acted unreasonably in denying incident was injury where employee felt pop in lower back accompanied by sharp burning pain and loss of feeling in leg; the incident met the definition of injury and was an "unusual strain" in the classical sense.
Attorneys Fees: Reasonableness of Insurers. Attorneys fees awarded where adjusting firm acted unreasonably in denying incident was injury where employee felt pop in lower back accompanied by sharp burning pain and loss of feeling in leg; the incident met the definition of injury and was an "unusual strain" in the classical sense.
Cases Discussed: Belton v. Carlson Transport. Belton is an exception to the more general rule that the employer and insurer take the worker as they find him and has not been extended to situations where no prior claim has been filed or where no insurer is already liable for the existing condition.
Injury and Accident: Aggravation: Generally. Denial of claim under WCC was unreasonable where claimant's report of pop in back, accompanied by burning pain and numbness, described an expected unusual strain, identifiable by time and place and by part of the body affected, and caused by a single event during a single work shift. Although claimant had an existing back condition, respondent is responsible for the aggravation of that condition.
Injury and Accident: Subsequent Injury. Belton is an exception to the more general rule that the employer and insurer take the worker as they find him and has not been extended to situations where no prior claim has been filed or where no insurer is already liable for the existing condition.
Injury and Accident: Unexpected Strain or Injury. Denial of claim under WCC was unreasonable where claimant's report of pop in back, accompanied by burning pain and numbness, described an expected unusual strain, identifiable by time and place and by part of the body affected, and caused by a single event during a single work shift. The incident was an "unusual strain" in the classical sense.
Claimants: Pre-Existing Condition. Belton is an exception to the more general rule that the employer and insurer take the worker as they find him and has not been extended to situations where no prior claim has been filed or where no insurer is already liable for the existing condition.
Penalties: Insurers. Although WCC found insurer acted unreasonably, penalty not awarded where Pretrial Order contained no request for penalty.
Unreasonable Conduct by Insurers. Adjusting firm acted unreasonably in denying incident was injury where employee felt pop in lower back accompanied by sharp burning pain and loss of feeling in leg; the incident met the definition of injury and was an "unusual strain" in the classical sense.

         The trial in the above-entitled matter came on Tuesday, December 12, 1995, at 8:00 a.m., in Courtroom 1, Flathead County Justice Center, Kalispell, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presided. Petitioner, Brian Ostwald, was present and represented by Mr. Chas. C. Dearden and Mr. David W. Lauridsen. Respondent was represented by Mr. Kelly M. Wills. The court reporter in this matter was Ms. Beth Gilman.

         Opening statements were made by counsel. Exhibits 1 through 8 were admitted by stipulation. The parties agreed that the depositions of Randale C. Sechrest, M.D. and Michael Righetti, M.D. can be considered part of the record. Petitioner Brian Ostwald and Mike Covey were sworn and testified.

         FINDINGS OF FACT

         1. Claimant is 32 years of age. He is married and has two children.

         2. Claimant previously worked as a wildlife biologist. However, in April 1994 he went to work for Plum Creek Manufacturing at its Ksanka sawmill. He was initially employed on cleanup. Later he became a stacker operator.

         3. Sometime during the late summer of 1994 claimant's low back began hurting. The onset of his back pain was gradual and was not related to any specific incident.

         4. Claimant first sought care for his back condition on October 21, 1994, when he saw Dr. Alan P. Collins, his family physician. At the time of Dr. Collins' examination, he recorded the following history:

S: This is a 31 year old man who comes in with a complaint of left lumbar pain for the last 2 months. The pain radiates down the left thigh, causing a tingling numbness on the top and the side of the left thigh. It is helped by Ibuprofin, but at this point he is taking 4 over the counter Ibuprofin tablets, 4 times a day. The patient is working 4 days [a] week at Plum Creek and essentially, the problem is exacerbated by work. At the end of the 4 day stint, he is in pretty bad shape. He goes home, rests us [sic] and at the end of the weekend, he usually feels pretty good and then the cycle starts again. He's working Friday, Saturday, Sunday and Monday of every week at this point. The work he is doing is bent over, pulling boards from left to right, all day long which is probably kind of a set up for back problems. The problem was not of sudden onset, but came on slowly, starting about 2 months ago. He notes that it feels better when he lies on his back with his knees up. He is not doing any exercises in particular.
Patient hasn't had previous disk problems or problems with severe lumbo sacral sprain. He has, however, had problems dating back to high school. In a pole vaulting incident, he developed a kind of a [sic] slipped vertebrae that sounds like spondylolisthesis in the lumbar spine. Later on while horse back riding, he had a fall, onto his left side, broke some ribs and broke off, what may have been the transverse process on some of his thoracic vertebrae.
Patient has no known medical allergies and otherwise is without medical problems.

         (Ex. 6 at 49.) Dr. Collins diagnosed lumbo sacral strain and commented that "this is exacerbated by his work situation." (Id.) He further commented that "[t]he upper leg pain, I think, is radiating pain."

         5. Dr. Collins prescribed physical therapy and Naprosyn, which is a ...


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