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Satterlee v. Lumbermen's Mutual Casualty Co.

Court of Workers Compensation of Montana

January 25, 1996

CATHERINE E. SATTERLEE Petitioner
v.
LUMBERMEN'S MUTUAL CASUALTY COMPANY Respondent/Insurer for BUTTREY FOOD & DRUG Employer.

          Submitted: November 7, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: 61-year old grocery store checker strained her left trapezius and shoulder at work. She recovered and was able to resume checking duties, but suffered disabling pain associated with degenerative disc disease and arthritis exacerbated by the injury and by post-traumatic stress disorder and depression, associated with several tragedies in claimant's personal life.

         Held: Claimant is permanently totally disabled, but her disability results from psychological trauma occurring subsequent to her injury. Her claim is not compensable. Note: this decision was reversed in Satterlee v. Lumbermen's Mutual Casualty Co., 280 Mont. 85, 929 P.2d 212 (1996), which held that substantial evidence did not support the conclusion that the psychological condition arose only post-injury.

         The trial in this matter was held on August 30, 1995, in Butte, Montana. Petitioner, Catherine E. Satterlee (claimant), was present and represented by Mr. Bernard J. Everett. Respondent, Lumbermen's Mutual Casualty Company, was represented by Mr. Thomas A. Marra. The claimant and Elaine Seibel were sworn and testified. Exhibits 1 through 7 and 9 were admitted by stipulation. Exhibit 8 was admitted over the objection of Mr. Everett. The depositions of the claimant, Robert Buhl, Dana Headapohl, M.D. and Patricia Schendel were submitted for the Court's consideration.

         Issues presented: Claimant asks the Court to determine that she is permanently totally disabled as a result of a July 25, 1992 industrial injury. She also seeks a penalty, attorney fees and costs.

         Having considered the Pretrial 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:

         FINDINGS OF FACT

         1. Claimant is presently 61 years old. At the time of her industrial accident she was 57. She has lived for many years in the community of Anaconda.

         2. Claimant did not graduate from high school but does have a GED.

         3. Claimant has worked as a waitress, a clerk and in a smelter. During the 15 years prior to her industrial injury, she worked as a checker for Buttrey Food & Drug.

         4. On July 25, 1992, while working for Buttrey, claimant attempted to turn over a 40-45 pound bag of dog food on the bottom of a shopping cart. In doing so, she strained her left trapezius and shoulder area.

         5. Claimant returned to work the following day, but within three or four hours pain "set in the shoulder." (Ex. 6 at 25.) When she went to work the next day, the same thing happened. On both days she continued working. On the third day, however, she was only able to work for an hour or two. She has not worked since July 28, 1992.

         6. At the time of the injury, Buttrey was insured by Lumbermen's. Lumbermen's accepted liability for the claim and thereafter paid temporary total disability benefits until February 23, 1993, at which time those benefits were terminated. It has also paid medical expenses.

         7. Claimant was a credible witness.

         8. The claimant was able to perform all of her job duties as a checker for Buttrey during the 15 years prior to her industrial injury. She testified that she never suffered neck or left shoulder pain prior to July 25, 1992. Medical examinations following her industrial accident show that she suffers from preexisting cervical disk disease. However, that disease was asymptomatic prior to her injury.

         Medical

         9. Following her industrial accident, claimant was initially seen on July 29, 1992, by Dr. Zachory Deiss. He diagnosed her injury as a left trapezius strain and prescribed Flexeril and Lodine[1]. (Ex. 6 at 29.)

         10. Claimant was then treated by Dr. Ira E. Fender, who first saw claimant on August 3, 1992, with respect to her injury. (Ex. 4 at 5.) During his first examination, the doctor noted "muscle strain with spasm" in the upper back. (Id.) In addition to continuing the medications previously prescribed, Dr. Fender prescribed physical therapy. (Id.) Physical therapy began the same day and continued until October 10, 1992. (Ex. 6 at 47-54.)

         11. On August 24, 1992, claimant was again examined by Dr. Fender. She reported that her back was better, "[b]ut I will not go back to work in pain." (Ex. 4 at 6.) Despite improvement, she still had pain in the area of the rhomboid trapezius muscle and Dr. Fender noted that she still had muscle spasm. (Id.) Dr. Fender's office note further reflects that claimant was "under [increasing] stress." Dr. Fender prescribed Xanax for the stress.[2] (Id.) He later noted on August 24th that claimant's stress was "not work related but due to other factors." (Id. at 10.)

         12. The claimant returned to Dr. Fender on September 24, 1992. (Id. at 8.) At that time she reported that her back was okay unless she used it, but that she experienced pain if she used her left hand repeatedly or lifted. (Id.) She specifically noted pain in her trapezius, shoulder and chest due to muscle spasm. (Id.) On examination Dr. Fender noted the presence of "mild trapezius spasm." (Id.)

         13. Dr. Fender ordered an MRI of claimant's cervical spine. The imaging was done on September 28, 1992, and revealed:

Spondylosis Is Producing Spondylotic [Sic] Spurs Centrally and to the Left at the [C]5-6 and [c]6-7 levels causing borderline spinal stenosis and partial obliteration of the nerve root canals.

(Id. at 9.)

         14. Dr. Fender saw the claimant again on October 13, 1992. (Id. at 11.) He noted that she still had neck discomfort and that physical therapy the previous day had aggravated the pain. He referred the claimant to Dr. Richard C. Dewey for a neurological consultation. Dr. Fender did not see the claimant again until January 1995, when she fell and broke her arm. (Id. at 11-12.)

         15. Dr. Dewey examined claimant on October 15, 1992. He reported the following:

[S]ignificant spasm of all of the trapezius on the left side in and around the left scapula. On the right side this is not so.
There is marked tenderness to the interscapular, suprascapular, and trapezius and poor ROM of the cervical spine.
The MRI scan shows significant degenerative disc disease at C3-4, 4-5, 5-6, and 6-7 with significant posterior spur formation. There is no spinal stenosis. Neuroforamina on the left side can not be adequately evaluated.
There is a significant muscular component to the patient's symptoms and unfortunately her exercise program has been defeating any attempts at providing muscle relaxation . . . .
[T]here may be some underlying radiculopathy but it is impossible for me to determine this at this time because muscle spasm is so severe. I will see her again at any time. I do not feel that this is a surgical problem but one of muscle spasm. . . . [Emphasis added.]

(Ex. 1 at 1-2.)

         16. Following Dr. Dewey's exam, claimant traveled to Sequim, Washington to be with her daughter, who was awaiting a heart-lung transplant. (Claimant's daughter suffered from cystic fibrosis.)

         17. While in Washington claimant was seen by Dr. Alvin Harris, an orthopedic surgeon, on December 23, 1992. Claimant reported: "The left shoulder constantly burns. I get spasms above the shoulder and behind it and under the arm. The pain does not awaken me." (Ex. 2 at 5.) In a letter to Intermountain Claims of Montana, which adjusted the claim for Lumbermen's, Dr. Harris commented:

The patient's symptoms strongly suggest a cervical neuropathy involving the left upper extremity. She relates this to a work incident having occurred on July 25, 1992 with symptoms centered upon the left shoulder.
To my knowledge, the patient had no prior awareness that the problems may have had their origin in the neck. A single x-ray observed in this office, together with the MRI indicates advanced degenerative changes in the neck with spinal stenosis at the C-5, C-6 level, and the C-6, C-7 levels. [Emphasis added.]

(Ex. 2 at 8.)

         18. Dr. Harris referred the claimant to Dr. Donna Frankel for a neuromuscular electrodiagnosis consultation which occurred on January 12, 1993. (Ex. 3 at 4-5.) After reviewing Dr. Frankel's report, Dr. Harris commented that Dr. Frankel "believes that the neck symptoms may be the result of local impingement from arthritis rather than a significant radiculopathy." (Ex. 2 at 3, emphasis added.)

         19. On February 1, 1993, Dr. Harris responded to questions posed by Intermountain concerning claimant's condition:

To answer your specific questions regarding the patient's symptoms being a direct result from the reported injury of July 25, 1992, I would be inclined to say that the degenerative changes within the neck preceded that by a number of years, despite the fact that the patient denies having prior symptoms. It is possible that the employment incident aggravated the existing pathology so that symptoms arose. If the patient's symptoms resulted from a strain in the neck when she lifted the 40 pound bag of dog food, then healing of the soft tissue certainly should have occurred within a six week period. It is difficult to rationalize a permanent partial impairment related to that one incident. [Emphasis added.]

(Ex. 2 at 3.)

         20. Based on Dr. Harris' report the insurer terminated claimant's temporary total disability benefits on February 23, 1993.

         21. Claimant's daughter passed away and claimant returned to Montana in the Spring of 1993. She sought medical care from Dr. Michael J. Sadaj, who specializes in internal medicine and pulmonary disease. Dr. Sadaj had previously treated and cared for claimant's daughter.

         22. Claimant initially saw Dr. Sadaj on May 10, 1993, for depression and insomnia. (Ex. 9 at 1.) Dr. Sadaj's office record for that date noted claimant's recent loss of her daughter. It also notes that the recent loss was the latest in a series of personal losses suffered by claimant in recent years. Specifically, he noted, "She has had quite a bit of trauma in the last few years with [the] loss of 2 grandchildren, loss of her daughter, loss of 2 husbands, and loss of a son." The Court notes that the claimant's son was killed in an automobile accident approximately two years prior to her industrial injury and that the claimant was treated by Dr. Fender for depression and insomnia at that time. (Ex. 4 at 1.) In addition, various records indicate that in 1993 the claimant's sister was dying of a brain tumor. (Ex. 7 at 63; Ex. 9 at 6-7.)

         23. Dr. Sadaj saw claimant again on May 20, 1993. She was still depressed and related that a niece and three of her niece's children had perished in a fire the previous week. (Ex. 9 at 2.)

         24. During the months that followed, Dr. Sadaj continued to treat claimant for her depression and insomnia. He referred her to a counselor (Sue Bennett) and then a psychiatrist (Dr. Kenneth Olson) for further psychological treatment. He also treated her for acute medical conditions, including phlebitis, nausea, vomiting, tremors and chest pain. ...


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