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Kuntz v. Nationwide Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

November 19, 1996

RAYMOND KUNTZ Petitioner
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for CEREAL FOOD PROCESSORS, INCORPORATED Employer.

          Submitted: July 1, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: 47-year old former mill worker seeks permanent partial disability benefits on account of an industrial injury occurring on January 20, 1987.

         Held: While finding claimant credible on many basic facts, WCC found his testimony not credible concerning critical elements of the case, including the nature and extent of his pain and disability. Where claimant suffered at least eight back injuries and strain, some of them work-related and some not, the Court was not persuaded that the 1987 incident caused any material, significant, or permanent aggravation of his pre-existing back condition. To become entitled to permanent partial disability benefits, claimant must prove a causal connection between his 1987 injury and his disability. He has not done so; thus, permanent partial disability benefits were denied. (Note: WCC affirmed by Supreme Court at Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5.)

         Topics:

Injury and Accident: Aggravation: Generally. 47-year old mill worker failed to prove causal connection between 1987 injury and claimant's disability. Where claimant suffered at least eight back related injuries, and was not credible concerning the nature and extent of his pain and disability at various times in his history, the Court was not persuaded the 1987 incident caused any material, significant, or permanent aggravation to his pre-existing back condition. (Note: WCC affirmed by Supreme Court at Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5)
Injury and Accident: Aggravation: Temporary Aggravations. 47-year old mill worker failed to prove causal connection between 1987 injury and claimant's disability. Where claimant suffered at least eight back related injuries, and was not credible concerning the nature and extent of his pain and disability at various times in his history, the Court was not persuaded the 1987 incident caused any material, significant, or permanent aggravation to his pre-existing back condition. (Note: WCC affirmed by Supreme Court at Kuntz v. Nationwide Mutual Fire Ins. Co., 1998 MT 5.)

         The trial in this matter was held on May 8 and 9, 1996, in Billings, Montana. Petitioner, Raymond Kuntz (claimant), was present and represented by Mr. James G. Edmiston. Respondent, Nationwide Mutual Fire Insurance Company (Nationwide), was represented by Mr. Kelly M. Wills and Mr. Peter J. Stokstad.

         Issues presented: Claimant seeks permanent partial disability benefits on account of an industrial injury he suffered on January 20, 1987. He also seeks attorney fees and costs.

         Testimony: Claimant, Russell Miller, Kerry Wilks, Dr. William Shaw, Juanita Hooper, Brenda Williams, Harry Singh, Walter Seaberger, Daniel Hill, John Erker, Greg Uhren and Donna Kuntz were sworn and testified. Additionally, the parties submitted the depositions of claimant, Dr. Peter Teal and Juanita Hooper for consideration by the Court.

         Exhibits: Exhibits 1, 3, 5-9, 15-29, 31-36, 39, 41, 42, 45-47, 54 and 56 were admitted without objection. Pages 59, 60, 62, 66, 79, 94, 97 and 101 of Exhibit 2 were admitted. Exhibits 10 through 14, 30, 37, 38, 52 and 53 were withdrawn. Exhibits 4, 40, 43 and 44 were admitted over the objection of Mr. Wills. Exhibits 48 through 51 and 55 were admitted over the objection of Mr. Edmiston. Exhibit 56 was objected to by Mr. Edmiston and not admitted. Exhibit 57 was admitted as a demonstrative exhibit over the objection of Mr. Edmiston.

         Having considered the Pre-trial 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 47 years old, is married, has two children, and lives in Billings, Montana.

         2. In his first proposed finding of fact, claimant requests this Court to find his testimony in this case to be credible and true. The placement of the request is not surprising since this case in large part involves claimant's credibility. While claimant was certainly credible on many basic facts, I did not find his testimony concerning critical elements of his case, specifically the nature and extent of his pain and the nature and extent of his disability, wholly credible. After listening to all of the evidence in this case, including claimant's testimony, and observing claimant's demeanor at trial, I find that claimant is an extremely angry man driven by a desire for revenge against his former employer, and that his testimony concerning the demands of his time-of-injury job, the extent of his pain, and his ability to perform his time-of-injury job was exaggerated.

         3. From June 6, 1972 until June 1994, claimant worked at a flour mill in Billings. At the time of his initial employment, the mill was owned and operated by Peavey Flour Mills. In 1983 Peavey sold the mill to Conagra. In 1984 Conagra sold it to Cereal Food Processors (Cereal Foods), which still owns and operates the mill. The mill is a processing plant which mills grain into flour.

         4. The mill has six floors and is divided into two halves, reflecting two milling operations which operate simultaneously but separately. A "miller" is in charge of the mill as a whole. An assistant miller is assigned to each of the two milling operations. The mill operates 24 hours a day. Employees work eight hour shifts. Hence, on any given shift there is one miller and two assistant millers in charge of the mill operations. Thus, the mill employs six assistant millers.

         5. Claimant was hired in 1972 as a sweeper to clean the floors of the mill. His cleaning responsibilities included shoveling flour which spilled onto the floors of the mill as a result of "chokeups."

         6. A chokeup occurs when flour becomes compacted in a duct which carries the flour, thereby obstructing the duct. The obstruction is eliminated by opening the duct and spilling the compacted flour onto the floor of the mill, thereby clearing the duct to permit the continued transportation of flour. The flour which is spilled on the floor is then shoveled into holes in the mill floor designed for that purpose or into carts or bags. If shoveled into carts or bags, the flour is then taken to and dumped into the holes in the floor. (Tr. at 294-95.)

         7. Claimant was promoted to smutter in 1974. As a smutter he was responsible for cleaning and tempering grain, as well as cleaning up spilled flour from the floor of the mill. "Tempering" was done by soaking the grain in water to soften it prior to milling.

         8. In 1976 claimant was promoted to assistant miller. The assistant miller monitors and adjusts milling machinery during the milling process, performs routine maintenance on machinery, collects and tests flour samples, puts in additives, and clears ducts of chokeups. (Id. at 97, 351.)

         9. The assistant miller also helps clean up flour spills, sharing that responsibility with the smutter and, earlier on, the sweeper. The sweeper position was eliminated in 1984. (Id. at 94-95.)

         10. Approximately once every one to two weeks, assistant millers are required to change rolls, sifters, and belts on milling machinery. (Id. at 104-7, 296.) Rolls are large cylinders with serrated edges. They weigh several hundred pounds apiece. (Id. at 105.) They are used in pairs much like a wringer on an old wringer-washing machine. (Id.) Grain is fed into the rolls, which crushes the grain. (Id.) The rolls are changed using electric chain hoists which lift the roll in and out of the machine. (Id. at 105-6.) Rolls are transported to and from the machinery using a dolly. The evidence presented in this case did not clearly establish the weight pushed, pulled or lifted with regard to the rolls. Estimates of the weight of the hoists ranged from 30 pounds to 70 pounds. (Id. at 115, 193, 356.)

         11. The assistant miller is also required to remove and clean sieves from a sifter designed to strain unwanted particulates from the flour.

         12. In light of conflicting evidence, and the importance of that evidence to the resolution of this case, there is a further discussion of the physical requirements for the job of assistant miller later in this decision.

         13. As an assistant miller, claimant was often required to work overtime.

         14. Claimant worked a rotating shift as an assistant miller. He worked from 8:00 a.m. to 4:00 p.m. for two weeks, 4:00 p.m. to midnight during the next two weeks, and then midnight to 8:00 a.m. during the third two week period. (Kuntz Dep. at 181.) This schedule was significant to his decision in June 1994, to stop working as an assistant miller.

         Claimant's Back Injuries

         15. Between 1974 and 1988, the claimant suffered at least eight back injuries or strains.

         16. The first occurred in 1974. Claimant experienced an onset of right leg pain but could not recall any specific incident which triggered it. (Kuntz Dep. at 68-69.) He did not have back pain (id.) but upon examination, Dr. Perry M. Berg diagnosed a mild herniated disk at L5-S1. (Ex. 2 at 100; Ex. 48 at 160). Claimant attributed his condition to work, filed a claim for workers' compensation, and was paid medical benefits. (Kuntz at 68-69.) There is no evidence that he lost time from work.

         17. Claimant then injured his back in 1977. His attending physician, Dr. Arthur Foeste, filed a first report of injury indicating claimant "picked up a sack of feed, turned and felt pain in right thigh and leg, and now in back." (Ex. 2 at 97, emphasis added.) Dr. Foeste diagnosed claimant's condition as a "possible herniated disc Right L4-5." (Id.) Claimant filed a workers' compensation claim. (Id. at 101.) Claimant did not recall losing any time from work on account of that injury. (Kuntz Dep. at 78.)

         18. Claimant again injured his back on December 10, 1980, while dragging sacks of flour. (Ex. 2 at 66.) On January 5, 1981, Dr. Berg diagnosed claimant's condition as "[a]cute lumbosacral strain, resolving." (Ex. 2 at 68.) Claimant did not recall the incident and did not recall losing any time from work. (Kuntz Dep. at 80.) Indeed, he testified that after 1974 he had "pain all the time." (Id.)

         19. On October 6, 1981, claimant was admitted to St. Vincent Hospital for acute back strain. Dr. Berg's report states claimant "slipped at work, caught himself and then experienced acute low back pain followed by right sciatic type of pain." (Ex. 1 at 36, emphasis added.) According to Dr. Berg, this was claimant's first report of sciatic pain. (Id.; Ex. 48 at 180.) Dr. Berg diagnosed a "herniated nucleus pulposus right" and recommended conservative treatment. (Ex. 1 at 35.) On October 23, 1981, Dr. Berg reported that claimant was much improved, but was still experiencing mild right sciatic pain. Claimant was off work for approximately two weeks. He was released to return to work on October 27, 1981, and advised to start flexion exercises. (Ex. 48 at 161, emphasis added.)

         20. Claimant was examined by Dr. Berg on August 9, 1982, after straining his back two weeks earlier. (Id. at 162.) Dr. Berg's office note states that prior to August 9 the claimant had "gotten along quite well with occasional right sciatic type of pain. Currently he's experiencing pain in the right calf and sometimes in the thigh and buttock." (Id.) In a follow-up visit on August 23, 1982, Dr. Berg reported that claimant "continues to have considerable right calf pain which is almost continuous." (Id. at 163, emphasis added.) Dr. Berg recommended a back brace. (Ex. 48 at 163.) In a follow-up visit on September 20, 1982, Dr. Berg reported claimant was doing well. (Id. at 170.)

         21. In the fall of 1982, claimant suffered a further back strain or injury. This time it was not work related. On October 23, 1982, he was hospitalized with complaints of pain in the back and right leg. He was treated by Dr. Peter V. Teal, who diagnosed a "[h]erniated disc L5 S1 right side." (Ex. 47 at 224.) Dr. Teal's records reflect the following:

He went hunting this fall and dragged an antelope a considerable distance last weekend after shooting it and developed severe low-back pain, this time with a lot of pain in the right lower extremity, in fact the extremity pain was worse than the back pain. He states that it goes all the way down into his toes and occasionally he has some tingling in his foot, but no loss of sensation and no weakness. He continued working this week, although he missed one day and then the pain got so bad that he presented at the Emergency Room early this morning for admission.

(Id.) X-rays revealed "narrowing at L5-S1 but no other abnormalities." (Id. at 222.) Claimant was discharged from the hospital on November 1, 1982, and continued to improve. Dr. Teal released him to return to work on November 29, 1982. (Ex. 48 at 170; Teal Dep. at 6.)

         22. Since the fall of 1982, Dr. Teal has been claimant's treating physician.

         23. Claimant called Dr. Teal on December 3, 1982, to report a "sharp and burning pain in the heel and foot." (Ex. 48 at 170; Teal Dep. at 7.) Dr. Teal's office note does not indicate which heel and foot were involved, however, in light of prior notes indicating right leg pain a few months earlier (Ex. 48 at 168), it is reasonable to infer that it was on the right side.

         24. Thereafter, Dr. Teal had no contact with claimant until 1987.

         25. Claimant's next back injury occurred on January 20, 1987, and was work related. On that date claimant slipped and twisted his back while lifting a bag of malt. (Ex. 2 at 60.) Claimant sought treatment at the St. Vincent Hospital Emergency Room on February 7, 1987, reporting pain in his left leg. (Ex. 47 at 216, See also Tr., Vol. 1 at 100-101.) This was the first time he experienced left leg pain. He was not hospitalized and did not recall losing any time from work (Kuntz Dep. at 91), although a letter from the insurer's adjuster indicates he missed two weeks of work. (Ex. 2 at 59.)

         26. Dr. Teal examined claimant again on March 3, 1987. He reported that claimant "has improved now and in fact he is back to his usual status of some chronic aching low back pain." (Ex. 1 at 25, emphasis added.)

         27. During his deposition, claimant was asked whether he had returned "to that point where you were having some periodic low-back pain and leg pain, the same as you've had ever since 1974?" Claimant answered, "That's correct." (Kuntz Dep. at 92, emphasis added.)

         28. Claimant's next injury was on November 30, 1988. He did not recall the injury, (Kuntz Dep. 93), and there is no indication he filed a workers' compensation claim on account of the injury. However, Dr. Teal's records reflect that he saw claimant on December 13, 1988, and that claimant reported having reinjured himself on November 30, 1988, while pulling a lever at work. (Ex. 1 at 25.) Dr. Teal diagnosed "acute lumbar strain with pre-existing mild osteoarthritis" and reported that claimant had "aching pain mostly in the left calf. (Id., emphasis added.) Dr. Teal took x-rays, which showed degenerative changes at L3-4 and L4-5, prescribed pain medication and muscle relaxants, and referred claimant to a physical therapist. (Id.; Teal Dep. at 9-10.)

         29. Barbara Boyett, P.T., of the Physical Therapy and Sports Medicine Center, saw claimant on December 16, 1988, to fit him with a back brace and to instruct him in a therapeutic exercise program. Claimant reported his physical symptoms to the therapist:

Patient states that he injured his back on November 30th while attempting to pull a lever towards him with his right arm. He states that he is improving[, ] his only complaint at this time is left calf and shin pain. He describes this as an aching sensation.

(Ex. 48 at 1, emphasis added.) Claimant returned to the Center on January 3, 1989, for back school and education in proper body mechanics. (Id. at 2.)

         30. Approximately ten months later, on September 5, 1989, claimant returned to Dr. Teal complaining of "pain down into his left leg in the calf and in the thigh" over the previous few weeks. (Id. at 172, emphasis added.)

         31. Claimant next saw Dr. Teal on January 29, 1990. He indicated he had been having difficulties with his left extremity for several months:

He tells me that he forgot to inform me several months ago that he was having numbness and tingling in the two lateral toes of his left foot. More recently it has turned into a kind of a pulling drawing feeling and he has some constant aching there. He also has some left leg pain. He is not nearly in as much pain as he was three or four weeks ago when he made this appointment.

(Id. at 172, emphasis added.) Dr. Teal opined that claimant's condition on this date was not a new injury but rather a "continuation" of his previous problems. (Teal Dep. at 13.)

         32. Claimant again returned to Dr. Teal on August 27, 1990, complaining of pain in his left leg:

Patient has had treatment for back and left leg pain in the past. Recently, he's had a recurrence of left leg pain without back pain associated. He notices the leg pain is worse after he has been on his feet. Sitting bothers him. Standing is a little bit better but lying down is the best position for him. He denies any increased pain on coughing and he's having no numbness in his foot or toes this time which he has had in the past. He says his back snapped a few days ago and he is feeling a little better since. Patient has also had one episode of cramping in the right calf and some soreness there since that episode.

(Ex. 48 at 173-04, emphasis added.) Dr. Teal referred claimant for additional physical therapy. (Id. at 174.)

         33. Pursuant to Dr. Teal's referral, claimant went to physical therapy on August 27, 1990. He ...


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