Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Baumgartner v. Liberty Northwest

Court of Workers Compensation of Montana

April 14, 1997

DONALD BAUMGARTNER Petitioner
v.
LIBERTY NORTHWEST Respondent/Insurer for RIVERSIDE HEALTH CARE CENTER Employer.

          Submitted: April 2, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: 39-year old CNA filed first report regarding low back pain that increased in intensity during one work shift. No specific incident was reported. The insurer accepted liability for the low-back condition as an injury, paying some benefits. Claimant was diagnosed with degenerative disc disease and treated conservatively. An IME physician recommended against his return to CNA work. She opined claimant suffered from an occupational disease, but attributed 40% of his problem to non-work related factors including obesity, smoking, and the general aging process. The insurer did not dispute the IME physician's opinion, but argued claimant should be estopped from seeking occupational disease benefits where the claim was accepted and compensated as an injury. The parties stipulated that if claimant cannot return to work as a CNA, his minimum hourly wage loss is $1.50.

         Held: Estoppel is an affirmative defense that must be plead by the insurer. Where the defense was not plead and does not appear in the pretrial order, the insurer cannot raise it at trial. Moreover, the estoppel defense is meritless where claimant did not mislead the insurer. He completed a claim form used for both injuries and occupational diseases and the insurer accepted the claim as an injury. Claimant is entitled to benefits under section 39-72-405(2), MCA (1995), where the parties agree claimant suffers from an occupational disease, the employer terminated his employment based on doctor's advice he could no longer perform the work, and the parties stipulated he suffered a wage loss. Although claimant's wage loss would amount to $10, 000, the maximum amount that may be awarded under section 39-72-405, MCA (1995) in little more than three years, the Court awarded only $6, 000 in light of section 39-71-706, MCA (1995), based on the IME physician's apportionment of only 60% of the causation of claimant's condition to work.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-405, MCA (1995). 39-year old former certified nurses aide is entitled to benefits under section 39-72-405(2), MCA (1995), where the parties agree his low back condition constitutes an occupational disease, the employer terminated his employment based on doctor's advice he could no longer perform the work, and the parties stipulated he suffered a wage loss. Although it would take little more than three years for claimant's wage loss to reach $10, 000, the maximum amount that may be awarded under the statute, the Court awarded only $6, 000 in light of the apportionment provision of section 39-71-706, MCA (1995), based on the IME physician's apportionment of only 60% of the causation of claimant's condition to work.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-706, MCA (1995). Although it would take little more than three years for occupational disease claimant's wage loss to reach $10, 000, meaning he would ordinarily qualify for the maximum indemnity award under section 39-72-405, MCA (1995), the Court applied the apportionment provisions of section 39-71-706, MCA (1995) to an award under section 405. Where medical evidence attributed only 60% of the causation of claimant's low back condition to work, he was awarded $6, 000.

         Estoppel and Waiver: Equitable Estoppel. Estoppel is an affirmative defense that must be plead by the insurer. Where the defense was not plead and does not appear in the pretrial order, the insurer cannot raise it at trial to argue claimant cannot recover for an occupational disease where it accepted liability for his condition as an injury. Moreover, the estoppel defense is meritless where claimant did not mislead the insurer into accepting liability for his condition as an injury.

         Occupational Disease: Apportionment. Although it would take little more than three years for occupational disease claimant's wage loss to reach $10, 000, meaning he would ordinarily qualify for the maximum indemnity award under section 39-72-405, MCA (1995), the Court applied the apportionment provisions of section 39-71-706, MCA (1995) to an award under section 405. Where medical evidence attributed only 60% of the causation of claimant's low back condition to work, he was awarded $6, 000.

         Occupational Disease: Indemnity (39-72-405) Awards. 39-year old former certified nurses aide is entitled to benefits under section 39-72-405(2), MCA (1995), where the parties agree his low back condition constitutes an occupational disease, the employer terminated his employment based on doctor's advice he could no longer perform the work, and the parties stipulated he suffered a wage loss. Although it would take little more than three years for claimant's wage loss to reach $10, 000, the maximum amount that may be awarded under the statute, the Court awarded only $6, 000 in light of the apportionment provision of section 39-71-706, MCA (1995), based on the IME physician's apportionment of only 60% of the causation of claimant's condition to work.

         Pleading: Affirmative Defenses. Estoppel is an affirmative defense that must be plead by the insurer. Where the defense was not plead and does not appear in the pretrial order, the insurer cannot raise it at trial to argue claimant cannot recover for an occupational disease where it accepted liability for his condition as an injury. Moreover, the estoppel defense is meritless where claimant did not mislead the insurer into accepting liability for his condition as an injury.

         The trial in this matter was held in Missoula, Montana, on January 23, 1997. Petitioner, Donald Baumgartner (claimant), was present and represented by Mr. Rex Palmer. Respondent, Liberty Northwest (Liberty), was represented by Mr. Larry W. Jones.

         Exhibits: Exhibits 1 through 10 were admitted without objection.

         Witnesses and Depositions: Claimant and Sandy Scholl were sworn and testified. In addition, the parties submitted the deposition of Dana M. Headapohl, M.D., for the Court's consideration. No transcript of the trial has been prepared.

         Issue Presented: The sole issue presented for determination is whether claimant is entitled to an award under section 39-72-405, MCA, and if so, in what amount.

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

         FINDINGS OF FACT

         1.Claimant is 39 years of age. He has worked as a certified nurse's aide (CNA) for approximately 16 years.

         2.On August 15, 1995, the claimant was working as a CNA for Riverside Health Care Center (Riverside) in Missoula, Montana. He was working full time and earning $6.50 an hour. (Ex. 1.)

         3.On August 15, 1995, claimant experienced the onset of low-back pain while at work. 4.At that time, Riverside was insured by Liberty.

         5.On August 15, 1995, claimant filled out Riverside's incident report describing the onset of pain as follows:

Some pain in lower back in A.M. Increase in afternoon. Now feels like lower back is tingling or on fire. No known orgina origin of beginning, of where pain started or why.

(Ex. 2 at 2.)

         6.As a result of claimant's back pain, a First Report of Occupational Injury or Occupational Disease (First Report) was completed and submitted to Liberty. (Ex. 1.) A representative of Riverside signed the completed report on August 17, 1995, and claimant signed it on August 18, 1995.

         7.The First Report was prepared on a form supplied by Liberty. The form was captioned as set out in Finding 6.

         8.The First Report filed on behalf of claimant included the following description of the onset of claimant's back pain:

While working, low back began to hurt, increasing in intensity throughout shift. Filled out incident report. On 8/17/95 called Dr. Burtons [sic] office and made appt for evaluation, scheduled Mon Aug 21. R. Advised.No specific incident caused injury. Employee has hx [history] of back complaints documented by incident reports, and - - has seen Drs. Huson [sic] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.