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Liberty Northwest Insurance Corporation v. Champion International Corporation

Court of Workers Compensation of Montana

June 25, 1996

LIBERTY NORTHWEST INSURANCE CORPORATION Petitioner/Insurer for STIMSON LUMBER COMPANY Employer
v.
CHAMPION INTERNATIONAL CORPORATION Respondent.

          Submitted: April 22, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 60 year old millwright injured his back in 1992 while working for Champion, which was self-insured. Eventually released to work without restrictions, he returned to work, though his job became primarily light duty carpentry work following an angioplasty. When the mill was sold to Stimson, claimant was hired and eventually returned to heavier millwright duties. He testified his back pain worsened until he could no longer perform his job. Dr. Michael Sousa, an orthopedic surgeon, took him off any work at Stimson. Although Champion had accepted liability for claimant's 1992 injury, it denied liability when claimant resumed medical care in 1994. Claimant filed an occupational disease claim with Liberty, which insured Stimson. Liberty accepted liability under a reservation of rights and now seeks determination that Champion is liable for claimant's condition, relying in large part upon the opinion of a medical panel chaired by Dr. Dana Headapohl, an occupational and environmental medicine specialist, who initially testified that claimant suffered a temporary aggravation of a pre-existing condition while working for Stimson, without permanent aggravation. Dr. Headapohl did concede, however, that there was a significant increase in claimant's symptoms while he worked for Stimson, with those symptoms surpassing his tolerance threshold.

         Held: Based on the "last injurious exposure" language of section 39-72-303(1), MCA, in Caekaert v. State Compensation Insurance Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Montana Supreme Court extended the subsequent injury rule to a subsequent occupational disease for which the initial insurer was liable. This case then turns on whether claimant's work at Stimson materially and significantly aggravated his underlying low-back condition. If his current condition were merely a recurrence resulting from his 1992 injury, or merely the result of a natural progression of his preexisting condition, then Champion would remain liable. While the initial testimony of both Drs. Sousa and Headapohl supported Liberty's position, their later testimony confirmed claimant's own testimony that his work at Stimson caused material and significant deterioration of his low-back condition and caused his disability. (Note: this decision was affirmed by the Montana Supreme Court in Liberty Northwest v. Stimson Lumber Company, 285 Mont. 76, 945 P.2d 433 (1997).

         Topics:

         Causation: Medical Condition. Based on the "last injurious exposure" language of section 39-72-303(1), MCA, in Caekaert v. State Compensation Insurance Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Montana Supreme Court extended the subsequent injury rule to a subsequent occupational disease for which the initial insurer was liable. This case turns on whether claimant, a millwright who injured his back in 1992, materially and significantly aggravated his condition by subsequent work at the same mill under a different employing entity, with a different insurer. If his current condition were merely a recurrence resulting from his 1992 injury, or merely the result of a natural progression of his preexisting condition, then the first insurer would remain liable. The Court was persuaded, however, by testimony of two doctors and the claimant, that his subsequent work caused material and significant deterioration of his low-back condition and caused his disability. (Note: this decision was affirmed by the Montana Supreme Court in Liberty Northwest v. Stimson Lumber Company, 285 Mont. 76, 945 P.2d 433 (1997).

         Occupational Disease: Last Injurious Exposure. Based on the "last injurious exposure" language of section 39-72-303(1), MCA, in Caekaert v. State Compensation Insurance Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Montana Supreme Court extended the subsequent injury rule to a subsequent occupational disease for which the initial insurer was liable. This case turns on whether claimant, a millwright who injured his back in 1992, materially and significantly aggravated his condition by subsequent work at the same mill under a different employing entity, with a different insurer. If his current condition were merely a recurrence resulting from his 1992 injury, or merely the result of a natural progression of his preexisting condition, then the first insurer would remain liable. The Court was persuaded, however, by testimony of two doctors and the claimant, that his subsequent work caused material and significant deterioration of his low-back condition and caused his disability. (Note: this decision was affirmed by the Montana Supreme Court in Liberty Northwest v. Stimson Lumber Company, 285 Mont. 76, 945 P.2d 433 (1997).

         Occupational Disease: Subsequent Disease. Based on the "last injurious exposure" language of section 39-72-303(1), MCA, in Caekaert v. State Compensation Insurance Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Montana Supreme Court extended the subsequent injury rule to a subsequent occupational disease for which the initial insurer was liable. This case turns on whether claimant, a millwright who injured his back in 1992, materially and significantly aggravated his condition by subsequent work at the same mill under a different employing entity, with a different insurer. If his current condition were merely a recurrence resulting from his 1992 injury, or merely the result of a natural progression of his preexisting condition, then the first insurer would remain liable. The Court was persuaded, however, by testimony of two doctors and the claimant, that his subsequent work caused material and significant deterioration of his low-back condition and caused his disability. (Note: this decision was affirmed by the Montana Supreme Court in Liberty Northwest v. Stimson Lumber Company, 285 Mont. 76, 945 P.2d 433 (1997).

         This case came on for trial in Missoula on April 22, 1996. Petitioner, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones. Respondent, Champion International Corporation (Champion), was represented by Mr. Bradley J. Luck. The claimant in this matter, Ronald Deschamps (claimant), was present with his attorney, Mr. Rex Palmer. However, claimant is not a party to this proceeding and his attorney did not participate in the trial.

         Exhibits 1 through 21 were admitted by stipulation. Claimant and Dr. Dana Headapohl testified. The parties also submitted the depositions of claimant and Dr. Michael A. Sousa. The matter was then deemed submitted.

         Issue: The sole issue in this case is which insurer is responsible for claimant's bad back. Liberty is presently paying claimant benefits under the Occupational Disease Act but asserts that Champion, which is the insurer at risk for a prior injury, is liable for the benefits. Liberty seeks a determination that Champion is liable for prospective benefits and an order requiring Champion to reimburse Liberty for the benefits Liberty has paid to date.

         Citations to the Record: Dr. Sousa's deposition and specific exhibits are cited in the following findings of fact, however, where the finding is based on the trial testimony of Dr. Headapohl and Mr. Deschamps or on Mr. Deschamps' deposition, no citation is provided. Trial testimony is not specifically cited because no transcript has been prepared. Mr. Deschamps' deposition is not cited because much of his deposition testimony overlaps his trial testimony.

         * * * * * *

         Having considered the exhibits, depositions, trial testimony, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1.Claimant is 60 years old.

         2.Claimant worked for Champion at its Bonner, Montana mill for approximately 16 years. He worked for Champion until Champion sold the Bonner mill to Stimson Lumber in November 1993.

         3.During 14 of his years at Champion, claimant worked as a millwright, repairing machinery at the Bonner mill. He used welders, torches and various tools in his job. In 1990 his duties were decreased following an angioplasty procedure. Thereafter, he principally did carpentry work even though he continued to be classified and paid as a millwright.

         4.On March 30, 1992, claimant injured his back while working for Champion. He was lifting a box from sawhorses to a work bench when he experienced a "hot shock-like feeling." (Deschamps Dep. Ex. 1.) Within two hours he began having pain in his lower back and right leg. (Id.) At trial he described his pain as located in his lower back and buttocks and extending down the front of his right leg to just below the knee.

         5.At the time of the injury, Champion was self-insured. It received notice of the injury and accepted liability for it.

         6.Following his 1992 injury, the claimant initially sought treatment from a chiropractor. He was then treated in the emergency room on April 7, 1992. The ER physician referred claimant to Dr. David C. Westphal, a family practitioner.

         7.Dr. Westphal referred the claimant to Dr. Michael A. Sousa, an orthopedic surgeon who had previously treated claimant. Dr. Sousa examined claimant on May 19, 1992 and thereafter treated him for his back. (Ex. 1 at 85; Sousa Dep. at 7.)

         8.In a May 19, 1992 letter to Dr. Westphal, Dr. Sousa reported the results of his examination of that day. According to the letter, claimant provided the following history:

Mr. Deschamps as you know was injured when he was lifting and twisting a box that he was working on while working in maintenance at the Bonner mill. The patient twisted his back, felt the gradual onset of increasing pain, and by the end of the day could barely walk. He developed numbness in both legs, the right worse than the left, primarily along the inside of the thigh and upper leg region. The patient has had a gradual decrease in pain over the past few weeks but still reports numbness and a feeling of weakness with pain on twisting his low back. The pain is worse with activities and walking tends to aggravate him.

(Ex. 1 at 85.) Dr. Sousa's impression on that date was "a low back injury, a herniated nucleus pulposus which is of a minor nature on MRI scanning." (Id.) In his deposition Dr. Sousa said that the MRI finding of disk bulge or herniation was of "questionable clinical significance." (Sousa Dep. at 7.) He referred claimant to Dr. Gary D. Cooney, a neurologist, for further studies, and prescribed a course of physical therapy. (Ex. 1 at 86.)

         9.Claimant underwent a course of physical therapy from May 22, 1992 through June 24, 1992. (Ex. 10 at 2-7.)

         10.Dr. Sousa examined claimant again on June 4, 1992, and noted some improvement but nothing dramatic. (Ex. 1 at 12.) Claimant was experiencing pain in his hips and buttocks and "some pain going down to his knees." (Sousa Dep. at 8.) Dr. Sousa prescribed a course of epidural steroid injections. (Id.)

         11.A physical therapy note of June 24, 1992, indicates by that date the claimant's condition had substantially improved. (Ex. 10 at 2.) The note said, "Overall [claimant is] doing fairly well." (Id.) It further noted that "[m]ost of [the] discomfort now is light tingling sensation into left leg along the medial border with occasional slight back ache." (Id.) Dr. Sousa's note of the next day, June 25, 1992, indicates that claimant had "only slight discomfort" and that "most of his pain is gone." (Ex. 1 at 10.)

         12.Claimant was off work due to his back pain from April 2, 1992, until sometime in July 1992. On July 9, 1992, Dr. Sousa unconditionally released him to return to work in both millwright and millwright/carpenter positions. (Exs. 2 and 3.)

         13.Upon his return to work claimant continued to experience some pain and discomfort. On July 21, 1992, Dr. Sousa noted that claimant "is able to work but has some irritation and pain." (Ex. 1 at 10.) Claimant continued working but took analgesic for his pain.

         14.Over the next few months claimant continued to be seen periodically by Dr. Sousa for his back and also an elbow condition. With respect to his back, on November 17, 1992, Dr. Sousa reported that while claimant was "currently able to continue to work" he was "still having some pain on forward flexion and extension type lifting." (Id.) He noted that claimant had been lifting sheetrock and bags of concrete at work. (Id.)

         15.On January 28, 1993, Dr. Sousa concluded that claimant had reached maximum medical improvement and gave claimant a 10% whole person impairment rating. (Ex. 1 at 73.) Although he concluded that claimant had reached MMI, he also noted:

Ron has been able to work but has to wear a back brace, has continued to take non-steroidal anti-inflammatory medicines on an intermittent basis, and has required some injections of cortical steroid medication.

(Id.)

         16.On March 2, 1993, Dr. Sousa noted that claimant's "back pain is much better at this point" and that his elbows were his primary problem. (Ex. 1 at 9.) But on March 30, 1993, claimant was complaining of increased back pain. (Id.)

         17.Following the March 30, 1993 visit, claimant did not return to Dr. Sousa until March 3, 1994, almost a year later. (Ex. 1 at 8.) Claimant testified that his leg pain had resolved but that he still had some back pain after March 30, 1993. He did not seek further treatment because he was aware of the pending sale of the mill and intended to apply for a job with the new mill owners. He did not want his back injury to preclude new employment. Although claimant's memory was imperfect, the Court found him to be a credible witness, and accepts his testimony on this and other points.

         18.Claimant worked continuously for Champion from July 1992 until the mill was sold in November 1993. During that time he was not performing the full duties of a millwright, rather he was doing light carpentry work. In reviewing the exhibits it appears that his job during that time was more properly characterized as a millwright/carpenter (Ex. 3) even though his title and pay had not changed. As previously mentioned, his shift to lighter-duty carpentry work occurred following an angioplasty in 1990.

         19.On November 3, 1993, claimant underwent a pre-employment physical examination at the request of Stimson. In response to questions put to him at that time he told the examining doctor of his prior back injury but indicated that his back pain had resolved. (Ex. 10 at 19-20.) After physical examination the examiner approved him for unrestricted work.

         20.Claimant testified that he was never pain free following his 1992 injury, although his leg pain did resolve. He was still suffering from low-back and intermittent buttock pain when he took the pre-employment physical but misrepresented his condition to the examining physician so he would be found physically able to go to work for Stimson.

         21.Claimant was hired by Stimson and immediately went to work for the new company. As with Champion, he was classified and paid as a millwright. However, initially at Stimson he continued to perform lighter-duty carpentry work and he worked five days a week, eight hours a day, as he had for Champion.

         22.Claimant testified that after working for Stimson for approximately a year, his job duties changed, although his classification and pay did not. He was put to work "chasing whistles." Whenever a machine broke down and repair was needed, a whistle blew in the mill to summon a millwright. Thus, claimant returned to true millwright duties, performing heavier work than he had been performing since 1990.

         23.He further testified that while working over a two-year period for Stimson, his back pain gradually worsened until he could no longer perform his job. He said that when he started work for Stimson he was able to perform the duties of a millwright but that over time his pain increased and his consumption of over-the-counter analgesics increased until ultimately he could no longer work.

         24.A review of medical records indicate that claimant's time frames are inaccurate and claimant testified at trial that he has memory problems. A report by Dr. Richard C. Dewey, who examined claimant on April 19, 1994, states that claimant had been performing light-carpentry work for Champion but since going to work for Stimson had been doing "pipe fitting and heavy millwright work." (Ex. 10 at 26.) The records also indicate that after September 1994, claimant was off work for several months and when working was performing sedentary or light duties. In view of claimant's admitted problems, which I believe are genuine, I find that the medical records more accurately reflect his employment history at Stimson and that claimant began performing heavy-duty millwright work shortly after going to work for Stimson.

         25.Medical records and Dr. Sousa's testimony show that claimant once more sought medical care for his back in March of 1994, approximately four months after going to work for Stimson. Dr. Sousa saw claimant on March 3, 1994, for both low-back pain and epicondylitis of his elbows. (Ex. 1 at 8.) (Epicondylitis is an "inflammation of the epicondyle or of the tissues adjoining the epicondyle of the humerus [upper arm bone]" and is sometimes called "tennis elbow." Dorland's Illustrated Medical Dictionary, 27th Ed. (1985).) The epicondylitis arose while claimant was working for Champion. (Ex. 1 at 59.) However, the condition significantly worsened after he went to work for Stimson and ultimately required surgery on September 12, 1994. (Ex. 1 at 55.)

         26.On March 3, 1994, claimant complained of "intermittent back pain with some radiation into the hip", especially when "sitting and rising from a sitting position." Dr. Sousa recommended that claimant follow a stretching program and wear his back brace at all times. He ...


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