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Erickson v. Champion International

Court of Workers Compensation of Montana

March 12, 1996

DUANE ERICKSON Appellant
v.
CHAMPION INTERNATIONAL Respondent.

          Submitted Date: February 22, 1996

          ORDER ON APPEAL

          MIKE McCARTER JUDGE

         Summary:

         Claimant appealed DOL hearing officer's decision he was not suffering from an occupational disease.

         Held:

         WCC reversed and remanded the DOL decision where it rested on the opinion of a doctor who applied an incorrect understanding of the law of occupational disease and workers' compensation. The doctor opined that claimant's knee condition was not an occupational disease because not all mill workers develop similar knee conditions. This ignored the settled principle that an employer takes a worker as it finds him, making the fact that non-susceptible or non-predisposed workers would not be affected by working conditions irrelevant to a determination whether an occupational disease exists in a particular worker. Where claimant's argument that insurer failed to reject or deny his claim within 30 days was not raised in the agency proceeding, it will not be considered on appeal. Fact that claimant was pro se in the agency does not allow him to raise issues on appeal not raised below.

         Topics:

Causation: Medical Condition. WCC reversed and remanded DOL decision that claimant did not suffer from an occupational disease where the decision rested on the opinion of a doctor who applied an incorrect understanding of the law. The doctor opined that claimant's knee condition was not an occupational disease because not all mill workers develop similar knee conditions, ignoring the settled principle that an employer takes a worker as it finds him, making the fact that non-susceptible or non-predisposed workers would not be affected by working conditions irrelevant to a determination whether an occupational disease exists in a particular worker.
Causation: Medical Condition. The fact that claimant's underlying condition would ultimately have been totally disabling due to a natural progression of an underlying condition does not preclude compensation where the disability was hastened by a work-related injury or conditions.
Claimants: Pre-existing Conditions. WCC reversed and remanded DOL decision that claimant did not suffer from an occupational disease where the decision rested on the opinion of a doctor who applied an incorrect understanding of the law. The doctor opined that claimant's knee condition was not an occupational disease because not all mill workers develop similar knee conditions, ignoring the settled principle that an employer takes a worker as it finds him, making the fact that non-susceptible or non-predisposed workers would not be affected by working conditions irrelevant to a determination whether an occupational disease exists in a particular worker.
Claimants: Pre-existing Conditions. The fact that claimant's underlying condition would ultimately have been totally disabling due to a natural progression of an underlying condition does not preclude compensation where the disability was hastened by a work-related injury or conditions.
Occupational Disease: Proximate Cause. WCC reversed and remanded DOL decision that claimant did not suffer from an occupational disease where the decision rested on the opinion of a doctor who applied an incorrect understanding of the law. The doctor opined that claimant's knee condition was not an occupational disease because not all mill workers develop similar knee conditions, ignoring the settled principle that an employer takes a worker as it finds him, making the fact that non-susceptible or non-predisposed workers would not be affected by working conditions irrelevant to a determination whether an occupational disease exists in a particular worker.
Occupational Disease: Proximate Cause. The fact that claimant's underlying condition would ultimately have been totally disabling due to a natural progression of an underlying condition does not preclude compensation where the disability was hastened by a work-related injury or conditions.
Occupational Disease: Subsequent Disease. WCC reversed and remanded DOL decision that claimant did not suffer from an occupational disease where the decision rested on the opinion of a doctor who applied an incorrect understanding of the law. The doctor opined that claimant's knee condition was not an occupational disease because not all mill workers develop similar knee conditions, ignoring the settled principle that an employer takes a worker as it finds him, making the fact that non-susceptible or non-predisposed workers would not be affected by working conditions irrelevant to a determination whether an occupational disease exists in a particular worker.
Occupational Disease: Subsequent Disease. The fact that claimant's underlying condition would ultimately have been totally disabling due to a natural progression of an underlying condition does not preclude compensation where the disability was hastened by a work-related injury or conditions.
Pro Se. Where claimant's argument that insurer failed to reject or deny his claim within 30 days was not raised in the agency proceeding, it will not be considered by the WCC on appeal. Fact that claimant was pro se in the agency does not allow him to raise issues on appeal not raised below. "While pro se litigants may be given a certain amount of latitude in their proceedings, they may not proceed in such a fashion as to abuse the judicial process, prejudicing the opposing party's interests as well as other litigant's access to the judicial system." Federal Land Bank of Spokane v. Heidema, 224 Mont. 64, 68, 727 P.2d 1336, 1338 (1986).

         This is an appeal from a decision of the Department of Labor and Industry denying appellant's claim that he suffers from an occupational disease involving both of his knees. Appellant, Duane Erickson (claimant), argues that the Findings of Fact, Conclusions of Law, and Order entered by the Department's hearing officer "violate controlling statutory provisions, were made upon unlawful procedure, and were clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record." (Appellant's Initial Brief at 1.)

         The appeal has been fully briefed. In addition the parties presented oral argument on February 22, 1996. At the end of the argument the matter was deemed submitted and it is now ready for decision.

         Record on Appeal

         The record on appeal consists of a sworn statement of the claimant, who was not represented by counsel during the proceeding below, a deposition of Dr. Robert Seim, 11 exhibits, and a transcript of the hearing. The only testimony presented at hearing was that of the claimant and it was very brief. Since the record is not voluminous, the Court will not specifically cite to the record except where essential to its determination or not specifically reflected in the hearing officer's findings of fact.

         Factual and Procedural Background

         Claimant is a 63 year old electrician. He worked for Champion and its predecessor company at its Libby, Montana, lumber mill from November of 1954 until April of 1993.

         Claimant has a long history of knee problems. In the 1950's he sprained his right knee on several occasions. (Ex. 1.) In July 1959 he twisted his right knee at work. Dr. Woodrow Nelson diagnosed an articular spur and a tear of the lateral collateral ligament. He performed surgery which involved "[r]emoval of osteoma and repair of lateral collateral ligament, removal of hypertrophic synovial fat." (Id.) Claimant was off work for recuperation and received workers' compensation benefits during that time. After his convalescence he returned to work at the mill.

         He testified that his right knee was "good" over the next five years but by 1967 he was experiencing right knee pain and sought medical care. (Erickson Dep. at 12.) On March 9, 1967, radiologist Dr. William J. Little reviewed x-ray films of the right knee and reported:

Films of the right knee show marked narrowing of the lateral half of the joint space with sclerosis at the articular surface of the lateral tibial plateau and the lateral femoral condyle and some spur formation present. I am unable to see any loose body in the joint space nor can I see osteochondritis dissecans. The stress views suggest some widening of the medial half of the joint space when compared to the left.
IMPRESSION: Old narrowed lateral half of the joint space of the right knee with secondary degenerative changes. No loose bodies seen. There appears to be some weakness of the medial collateral ligament and slight opening of the medial half of the joint space on stress views.

(Ex. 3.) Claimant could not recall any specific treatment being prescribed at that time.

         Sometime circa 1967 to 1969 claimant also began experiencing left knee pain. Claimant felt that his left knee problems arose as a result of his favoring his right knee. For example, when kneeling he put his weight on his left knee.

         Thereafter, both knees continued to symptomatically deteriorate. Claimant attributed the deterioration to his kneeling and running up and down stairs at work. (Erickson Dep. at 17.)

         By 1984 the condition of the claimant's right knee had deteriorated to the point that he once more sought surgical relief. Dr. Edward L. Lester performed arthroscopic surgery on the right knee, doing a partial meniscectomy. (A meniscectomy is the surgical removal of part of the cartilage of the knee.) In his operative note, Dr. Lester noted "significant lateral compartment degenerative changes . . . [and] significant pain, especially posteriorly." (Ex. 4.)

          In finding of fact 11, the hearing officer finds with regard to the 1984 surgery:

11. The December 1994 [sic] surgery was paid through the employer's group medical plan. Mr. Erickson did not submit the bills to the State Fund as he inquired and was informed the file from the 1959 injury had been lost. While attributing the deterioration of his condition to be from his continuing work with the employer, he was of the opinion the actual source of his knee problems stemmed from the 1959 injury. (Depo. of Erickson pp. 18 @ 525, 20 @ 1522, 24 @ 823, 25 @ 1217, 26 @ 110 and 29 @ 215.) [Emphasis added.]

(Findings of Fact, Conclusion of Law, and Order at 5.) While the bolded language is not erroneous per se, further elaboration is necessary. The testimony cited by the hearing officer reflects claimant's belief that his knee problems, at least with regard to his right knee, originated with his 1959 knee injury. However, claimant's testimony further reflects his belief that his working conditions over the years had further aggravated his condition. For example, he testified:

Q. At that point in time by 1984, was it your feeling that these problems were the natural result of your 1959 industrial injury? A. Like I said, that is when it all started.
Q. Do you think that it was aggravated by that time by your efforts in the work place?
A. Yes, I do. [Emphasis added.]

(Erickson Dep. at 20.)

         In 1989 knee pain again drove claimant to a doctor. On June 8, 1989, he was seen by Dr. Randall Sechrest. He reported pain in both knees, worse in the left. He further reported that approximately three months prior he had experienced the onset of tenderness in the calf of his right leg and swelling of his right knee. Dr. Sechrest recorded that x-rays showed "4 degenerative compartment of the R lateral knee and 2 degenerative process in the L medial knee." He predicted that claimant would "most likely require a prosthesis when the symptoms become unbearable." In the short term he recommended cortisone injections of the knee. He further suggested that claimant consider a "high tibial osteotomy . . . to gain 4-5 years time before this knee wears out completely from DJD [degenerative joint disease]." (Ex. 5.)

         Over the years, claimant's degenerating knees caused him to reduce his outside physical activity. His recreational activities, including fishing, hiking, and walking, declined.

         On August 11, 1992, claimant suffered a back injury at work. (Erickson Dep. at 31-32.) In April of 1993, he ceased working on account of the injury and began receiving total disability benefits. He was still on total disability at the time of his deposition on July 7, 1994. (Id. at 32, 37.)

         Claimant has not asserted that he further injured his knees on August 11, 1992. (Id. at 36.) His knees had continued to hurt after 1989. Following his 1992 injury they continued to deteriorate. (Id.)

         In January 1994, the claimant filed a claim regarding his knees. He ...


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