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Burglund v. Liberty Mutual Northwest Insurance Co.

Court of Workers Compensation of Montana

August 29, 1996

STEVEN K. BURGLUND Petitioner
v.
LIBERTY MUTUAL NORTHWEST INSURANCE COMPANY Respondent/Insurer for UNITED PARCEL SERVICE Employer.

          Submitted: June 6, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: In this second litigation involving a UPS driver (see WCC No. 9303-6721), claimant argued his current back-related disability results from 1984 injury. Insurer argues occupational disease developed after claimant returned to work.

         Held: Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. Accordingly, claimant's position prevails. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)

         Topics:

Injury and Accident: Aggravation: Generally.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Injury and Accident: Occupational Disease.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Injury and Accident: Causation.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Occupational Disease: Disease.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Occupational Disease: Last Injurious Exposure.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)
Occupational Disease: Proximate Cause.
UPS driver and insurer disputed whether claimant's current disability was result of 1984 back injury and following surgery or occupational disease resulting from claimant's return to work. Based on medical testimony, Court found condition was result of earlier injury. Physician's testimony left no doubt that claimant's 1991 surgery, and thus his 1984 injury, are substantial and material factors in claimant's current disability. WCC was persuaded claimant's continued employment may have hastened the degenerative process, but was not persuaded it substantially or materially did so. Most importantly, physician testified that even had claimant not returned to a labor intensive job, his degenerative condition would have ultimately progressed and that the current condition is consistent with a natural progression of the underlying condition. (Note: WCC decision affirmed by Supreme Court in Steven K. Burglund v. Liberty Mutual Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).)

         The trial in this matter was held in Kalispell, Montana, on September 26, 1995. Petitioner, Steven K. Burglund (claimant), was present and represented by Mr. Darrell S. Worm. Respondent, Liberty Mutual Northwest Insurance Co. (Liberty), was represented by Mr. Larry W. Jones. The parties requested and obtained leave of Court to file post-trial memoranda. The final memorandum was received June 6, 1996, at which time the case was deemed submitted for decision.

         Issues presented: This is the second proceeding involving a dispute arising out of an industrial back injury the claimant suffered on February 14, 1984. In the previous case, Steven K. Burglund v. Liberty Mutual Northwest Ins. Co., WCC No. 9303-6721, this Court awarded claimant 20% permanent partial disability benefits. The award was entered on April 10, 1995, but was appealed by both parties. The Supreme Court appeal is still pending.

         At the time of the trial in the previous matter, claimant was still employed by United Parcel Service (UPS). Thereafter, his back condition worsened and he was unable to continue working for UPS. The present case arises because Liberty concluded that claimant's condition worsened on account of an occupational disease arising subsequent to his 1984 injury. Thus, Liberty treated the matter as an occupational disease. Initially, it paid temporary total disability benefits. After claimant reached maximum medical improvement it began paying out a $10, 000 award under section 39-72-405(2), MCA. At the time of trial, Liberty was continuing to pay out the $10, 000 award on a biweekly basis.

         Claimant contends that his current disabling condition is the result of his 1984 injury rather than any occupational disease. He does not ask the Court to presently award any additional compensation benefits but does request an award of attorney fees and costs.

         Exhibit and depositions: Exhibits 1 through 4 were admitted by stipulation. The parties submitted the depositions of the claimant and Ned A. Wilson, M.D., for the Court's consideration. The parties also stipulated that all testimony and exhibits admitted in a prior case, Steven K. Burglund v. Liberty Mutual Northwest Ins. Co., WCC No. 9303-6721, may be considered by the Court provided the party intending to rely on prior testimony and exhibits furnish copies to the opposing party and the Court.

         Witnesses: The claimant and Loren Hartman testified at the time of the trial.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. In its April 10, 1995 Amended Findings of Fact, Conclusions of Law and Judgment in cause WCC No. 9303-6721, this Court set forth the facts regarding the claimant's injury in 1984. Relevant findings include:

5. On February 14, 1984, claimant suffered an industrial injury arising out of and in the course of his employment with UPS. He injured his back when he fell from a platform.
6. At the time of claimant's 1984 injury, UPS was insured by Liberty Mutual Northwest Insurance Company (Liberty). Liberty accepted liability for the claim in this matter and has paid various compensation and medical benefits.
10. On March 7, 1984, claimant told Dr. Swanberg that he was feeling better and wanted to return to work on March 12, 1984. (Id. at 17.) Dr. Swanberg approved a return to work and told claimant to contact him if he had any continuing back difficulties. (Id.) Claimant did not thereafter seek treatment from Dr. Swanberg for his low-back condition. (Id.). . . .
12. Following his return to work [in 1984] claimant continued to experience intermittent low-back pain.
13. On February 16, 1988, claimant was examined by Dr. Henry Gary, who is a neurosurgeon. . . . Dr. Gary diagnosed claimant's condition as a herniated disk at the L5-S1 level. (Id. at 9.)
14. Between February 1988 and February 1991, claimant's back and leg pain increased. (Id. at 33.)
15. On February 18, 1991, Dr. Gary performed a lumbar laminotomy and a foramenotomy at the L5-S1 vertebral level. (Id. at 29 and Ex. 6.)
16. [T]he Court is persuaded that claimant's herniated disk and February 1991 surgery were related to his 1984 injury: . . .
17. . . . Both Dr. Gary and Dr. Swanberg released claimant to return to work without any restrictions. (Tr. at 130-131, 215-217, 392.)
28.Claimant is able to perform his job with little physical discomfort and his job performance is unaffected by his job injury.
29.As illustrated by his recreational activities, claimant remains in excellent physical condition[.]
30. Claimant testified that his job causes low-back pain and that he "constantly" has pain in his leg. (Id. at 154.) He also testified that he has numbness in his left foot. (Id. at 154-155.) According to claimant, his job exacerbates his pain and numbness. (Id.) The Court did not find this testimony credible. As previously found (Finding of Fact No. 29. h.) the claimant is comfortable performing his job duties and does not suffer significant pain or discomfort in doing so.
39. The Court is persuaded that the claimant is presently physically able to perform the jobs within his pre-injury normal labor market. The performance of his present job is unaffected by his injury and the Court is persuaded that he will be able to continue to perform his job duties satisfactorily at the same level as pre-injury. Whether his condition may deteriorate in the future is a matter of speculation. [Emphasis in original.]

         2. The trial in the earlier proceeding (WCC No. 9303-6721) took place over a number of days and was finally concluded on December 1, 1993. Briefing was completed in August of 1994 and this Court issued its initial decision in January 1995. The initial decision was then withdrawn and the Court thereafter issued its Amended Findings of Fact, Conclusions of Law and Judgment on April 10, 1995. On April 18th, just 8 days after the Court's final decision, the claimant left his job with UPS as a package car driver. Claimant testified he left his position due to an increase in symptoms in his legs and his continuing low-back pain.

         3. On April 20, 1995, claimant was seen by Dr. Ned A. Wilson, who is an orthopedic ...


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