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State Compensation Insurance Fund v. Town Pump Inc.

Court of Workers Compensation of Montana

May 21, 1996

STATE COMPENSATION INSURANCE FUND, Insurer/Appellant,
v.
TOWN PUMP, INCORPORATED, Employer/Respondent, RICHARD JOHN OLESKY, Claimant. RICHARD JOHN OLESKY, Claimant/Appellant,
v.
TOWN PUMP, INCORPORATED, Employer/Respondent, STATE COMPENSATION INSURANCE FUND, Insurer.

          Date Submitted February 20, 1996

          ORDER ON APPEAL

          MIKE McCARTER, JUDGE

         Summary: Both State Fund and claimant appealed from Department's determinations in occupational disease case. State Fund argued its insured, Pizza Hut, was not liable for claimant's right shoulder condition and that liability should be placed on claimant's subsequent employer, Town Pump, under the "last injurious exposure" rule set out at section 39-71-303, MCA. Claimant argued hearing officer erred in adopting physician's apportionment of 10% to nonoccupational factors and in applying apportionment to medical benefits.

         Held: Substantial evidence supports Department's determination that State Fund is liable for occupational disease benefits where the medical record (with one exception) consistently points toward development of claimant's right shoulder condition while he worked at Pizza Hut, with the subsequent work at Town Pump not representing a material or substantial aggravation of his condition. The one physician attributing the problem to work at Town Pump based his determination on a detailed statement of claimant about that work, the focus of which was not consistent with the bulk of the information in the medical record. While section 39-71-303, MCA, places liability for an occupational disease on "the employer in whose employment the employee was last injuriously exposed to the hazard of the disease," the proper inquiry is whether the risks of the second employment in fact caused further injury of a non-trivial nature, not whether that employment could have impacted his condition. The Department erred, however, in adopting one physician's attribution of 10% of the occupational disease to non-occupational factors where the physician conceded he was "not aware of any specific nonoccupational disease or infirmity which contributes to his current symptoms." Reference to a family history of arthritis which "may" contribute to his condition is not sufficient. In any event, apportionment of medical benefits is contrary to law, see, Davis v. Liberty Northwest Insurance Corp., WCC No, 9312-6974 (9/6/94), even if this were a proper case for apportionment.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: Section 39-71-303, MCA. Substantial evidence supports Department's determination that State Fund is liable for occupational disease benefits where the medical record (with one exception) consistently points toward development of claimant's right shoulder condition while he worked at Pizza Hut, with the subsequent work at Town Pump not representing a material or substantial aggravation of his condition. The one physician attributing the problem to work at Town Pump based his determination on a detailed statement of claimant about that work, the focus of which was not consistent with the bulk of the information in the medical record. While section 39-71-303, MCA, places liability for an occupational disease on "the employer in whose employment the employee was last injuriously exposed to the hazard of the disease," the proper inquiry is whether the risks of the second employment in fact caused further injury of a non-trivial nature, not whether that employment could have impacted his condition.
Occupational Disease: Apportionment. The Department erred in adopting one physician's attribution of 10% of a shoulder-related occupational disease to non-occupational factors where the physician conceded he was "not aware of any specific nonoccupational disease or infirmity which contributes to his current symptoms." Reference to a family history of arthritis which "may" contribute to his condition is not sufficient.
Occupational Disease: Apportionment. Apportionment of medical benefits is contrary to law, see, Davis v. Liberty Northwest Insurance Corp., WCC No, 9312-6974 (9/6/94), even if this were a proper case for apportionment.
Occupational Disease: Last Injurious Exposure. Substantial evidence supports Department's determination that State Fund is liable for occupational disease benefits where the medical record (with one exception) consistently points toward development of claimant's right shoulder condition while he worked at Pizza Hut, with the subsequent work at Town Pump not representing a material or substantial aggravation of his condition. The one physician attributing the problem to work at Town Pump based his determination on a detailed statement of claimant about that work, the focus of which was not consistent with the bulk of the information in the medical record. While section 39-71-303, MCA, places liability for an occupational disease on "the employer in whose employment the employee was last injuriously exposed to the hazard of the disease," the proper inquiry is whether the risks of the second employment in fact caused further injury of a non-trivial nature, not whether that employment could have impacted his condition.

         This is an occupational disease case. The parties do not dispute that claimant suffers from an occupational disease involving his right shoulder. However, they disagree as to which employer and insurer are responsible for the disease. They also disagree as to whether any part of his disease should be apportioned to nonoccupational factors.

         A hearing officer for the Department of Labor and Industry held that Pizza Hut and its insurer, the State Compensation Insurance Fund, are responsible for the disease and that 10% of claimant's disease is attributable to nonoccupational factors. The hearing officer further held that medical benefits, as well as compensation benefits, must be reduced by that 10%.

         The State Fund appeals, contending that Town Pump, which is self-insured, is responsible for the disease under the "last injurious exposure rule." (state fund's initial brief at 4-5.) Claimant appeals from the apportionment of liability, contending that the 10% factor is unsupported and should not in any event be applied to medical benefits.

         After considering the record below, and the arguments of the parties, I find the hearing officer's determination that the State Fund is liable for claimant's disease is supported by substantial evidence. However, the 10% apportionment factor is unsupported and cannot in any event be applied to medical benefits.

         Record on Appeal

         The record on appeal consists of the claimant's sworn statement taken on January 28, 1993, the deposition of the claimant taken on November 15, 1994, the deposition of Dr. Dana Headapohl, twenty-three exhibits, and a transcript of the hearing.

         The Facts

         Claimant is 58 years old. His prior work history and education are not pertinent to the decision in this case and are omitted from this discussion.

         Claimant suffers from chronic impingement of his right shoulder with an underlying rotator cuff tear. His condition has been verified by medical imaging and surgery; there is no real dispute concerning the nature of his medical condition.

         There is a dispute, however, over which employer and insurer are liable for his condition. Between June 15, 1990 and September 15, 1991, claimant worked for two different employers. He worked as an assistant manager for Pizza Hut in Glasgow, Montana, from June 15, 1990 through June 15, 1991. From June 17, 1991 until September 15, 1991, he worked for Town Pump in Columbus, Montana. He has not worked since then. This work history is important because claimant's right shoulder condition arose during the time of these two employments. Prior to 1990 he had never had problems with his right shoulder.

         Claimant has a congenital left arm weakness and his left arm is shorter than his right. He is unable to do any overhead lifting with the left arm.

         At Pizza Hut the claimant was required to lift cooked and uncooked pizzas above shoulder level. He used pliers to lift the pizzas, which were in pans. Due to his preexisting left arm weakness, he used his right arm. He was also required to lift five-gallon containers of pizza sauce and pizza dough weighing up to 50 pounds.

         Claimant left Pizza Hut for a better paying position at Town Pump in Columbus, Montana. His right shoulder was not a factor in his change of employment.

         At Town Pump, claimant was a probationary, restaurant supervisor-trainee. His employment began during the busy summer season and initially required heavy lifting. The hearing officer summarized his duties as follows:

18. The claimant worked at the Columbus Town Pump during the busy summer season. This is a 24-hour restaurant/truck-stop adjacent to the interstate. . . . He was required to work from 50 to 65 hours a week, but paid for 40. Early in his tenure at Town Pump his job demanded heavy lifting despite his right arm pain and supervising around seven people a shift. When the claimant started, the "helter-skelter" or unkempt condition of the food storage areas and twice weekly food deliveries necessitated reorganizing the coolers, freezer and regular rotation of stock. Staples which had to lifted and hung above shoulder-level included 100 pound bags of potatoes and onions. Sides of beef as packaged weighed up to 90 pounds. Cases of one, five, and ten gallon containers, such as pie filling, cooking oil, and sausage mix, respectively, also entailed significant lifting with some stock stored on overhead shelves. Used oil had to be carried outside in five gallon containers and dumped into a container above shoulder level.

         (Findings of Fact; Conclusions of Law; Final Order at 8-9; and see also the two and one-half page job description found at Ex. 21 at 19-21.) The claimant was able to perform the lifting tasks, however, during his employment at Town Pump he began asking for help with lifting and his heavy lifting responsibilities declined or ended. (Findings 17 and 18.)

         Claimant regularly worked 50 to 65 hours a week at Town Pump. He was asked to work even more hours but refused to do so. (Findings 18 and 19.) He then received an unfavorable performance review and was offered a lesser paying position as a prep or fry cook. He refused the offer, quit work, and began drawing unemployment benefits. (Ex. 21 at 26-27.)

         While employed by Pizza Hut, claimant did not specifically seek treatment for his shoulder condition. However, he attributes the onset of his condition to the repetitive lifting of pizzas. His claim is supported by a medical record for treatment of an unrelated condition. On May 6, 1991, while still working for Pizza Hut, he had a ganglion cyst removed from his right wrist. At that time he advised the Veterans' Administration doctor treating him that for the preceding three or four months he had been experiencing radiating pain in his right arm. (Tr. at 33; Ex. 21 at 36.) Although we are not further informed as to the cause of the pain, and therefore cannot rule out the ganglion as the cause, the report is consistent with claimant's later reports, and his testimony, which the hearing officer found credible, that his right shoulder and arm pain arose while he was employed at Pizza Hut. Claimant testified that the VA doctor indicated it was "probably tendinitis of the muscles." (Olesky Dep. at 14.)

         On August 13, 1991, the claimant reported to a VA physician that "my shoulder R [right] has gotten worse." (Ex. 21-38.) Apparently referring to the May 6, 1991 medical exam, he further reported that in a prior VA visit the doctor had "said it was inflamed Tendons & put me on Ibuprofen but, it didn't help a bit." (Id.) In another VA visit on September 17, 1991, the claimant made a similar report. (Ex. 21 at 26, 27.)

         In December of 1991, Dr. Stanley of the VA diagnosed a probable rotator cuff tear. The diagnosis was verified by an x-ray on January 16, 1992. (Id. at 43.)

         At some time in the latter part of 1991 or early 1992, the claimant filed his first claim for compensation. The claim was filed with the State Fund, which insured Pizza Hut. The record contains a claim dated February 13, 1992, as well as a claim dated August 30, 1991. The later claim is date stamped as received in July of 1992. (Exs. 12 and 14.) There is some evidence that the initial claim was lost by either the State Fund or the mediator and that the claim received in July of 1992 was intended to replace the original, lost one.

         In any event, on March 11, 1992, the State Fund initiated benefits under a reservation of rights. (Ex. 3.)

         Between January 1992 and July 1992, claimant continued to be treated for his shoulder pain at various VA hospitals. Dr. Murdock, a VA physician, examined claimant in July 1992. The doctor's notes contain reference to the claimant's job at Pizza Hut but no mention of his Town Pump work. His impressions were:

IMPRESSION: This 55 year old male has a confusing picture. It is apparent to me that there are possible contributing factors to his complaints. First of all, he does have a rotator cuff tear which was diagnosed on the arthrogram performed in January 1992 which can be contributing to his problems at this time. Additionally, he does have a positive impingement sign and palpable tenderness over the AC joint. . . . It is my impression and [sic] some of his problems could be related to repetitive motions at the job site but I cannot rule out other etiologies.

(Ex. 21 at 6-7.)

         The State Fund then arranged for an independent medical examination by Dr. Jerome Stewart. Dr. Stewart examined claimant on May 6, 1992. (Ex. 21 at 3.) He determined that the claimant had not reached maximum medical improvement but commented, "[H]e does not have a great deal of limitation or pain." (Id. 21 at 4; emphasis added.) Dr. Stewart's impression was that claimant suffered from tendinitis of the right shoulder. He recommended moderate exercise, physical therapy and anti-inflammatory medication, with which the doctor believed "the problem in the shoulder should resolve." (Id.)

         Dr. Stewart's report to the State Fund indicated that, by history, claimant "injured his shoulder at Pizza Hut by repeatedly lifting the pan of the pizzas to a 90 degree level and putting them in the oven. He states that this started over a number of months and culminated on May 27, 1991, by lifting the pan of pizza caused pain and discomfort in his right shoulder." (Id. at 3.) Notwithstanding that report, by letter dated May 14, 1992, the State Fund terminated benefits effective 14 days thereafter. (Ex. 7.) The termination was based on State Fund's determination that claimant had not reported an injury within 30 days. In a July 24, 1992 letter, the State Fund advised claimant that he also did not qualify for occupational disease benefits because he did not seek treatment for his shoulder condition until August 1991, and, "It would, ...


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