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DesJardins v. Liberty Northwest Insurance

Court of Workers Compensation of Montana

September 12, 1997

DENNIS DesJARDINS Petitioner
v.
LIBERTY NORTHWEST INSURANCE Respondent/Insurer for WI FOREST PRODUCTS Employer.

          Submitted: July 1, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: 56-year old clean-up laborer, whose prior work included truck driving, labor, welding, and field work, claimed permanent total disability after injury to his knee, back, and shoulders. Claimant had a history of prior back and shoulder injury, including two surgeries.

         Held: Claimant found presently permanently totally disabled. Credible testimony from claimant, his wife, and another individual convinced the Court claimant suffers constant, chronic back pain that severely limits his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video did not contradict or impeach claimant's testimony concerning his activities, but showed him to move slowly, stiffly, and gingerly. None of the physicians evaluating claimant questioned his reports of pain, although one opined he could work, albeit in only four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence convinced the Court claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993). While he did continue to engage in knife-making activities, and sold or traded some knives, the Court was persuaded claimant had no reasonable prospect of earning any regular income through knife-making.

         Topics:

Benefits: Permanent Total Disability: Generally. 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video showed him to move slowly, stiffly, and gingerly. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993). While he did continue to engage in knife-making activities, and sold or traded some knives, the Court was persuaded claimant had no reasonable prospect of earning any regular income through knife-making.
Medical Conditions (By Specific Condition): Pain. 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video showed him to move slowly, stiffly, and gingerly. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993); Killoy v. Reliance Nat'l Indem., 278 Mont. 88, 923 P.2d 531 (1996) (pain is a factor that must be considered in termining PPD status).
Surveillance. 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video did not contradict or impeach claimant's testimony concerning his activities, but showed him to move slowly, stiffly, and gingerly.
Vocational - Return to Work Matters: Employability. 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993). While he did continue to engage in knife-making activities, and sold or traded some knives, the Court was persuaded claimant had no reasonable prospect of earning any regular income through knife-making.

         The trial in this matter was held in Missoula, Montana, on July 1, 1997. Petitioner, Dennis DesJardins (claimant), was present and represented by Mr. Andrew F. Scott and Mr. Thomas C. Bulman. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Robert E. Sheridan. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1 through 23 were admitted without objection.

         Witnesses and Depositions: Claimant, Maria DesJardins (claimant's wife), Wendell Larson, Dr. Dana Headapohl, William Goodrich and Richard Smith were sworn and testified. In addition the parties submitted the depositions of claimant, Dr. Carl Albertson and Dr. Mark Heppe to the Court for its consideration.

         Issues Presented: Claimant asks that the Court determine him to be permanently totally disabled due to severe chronic pain caused by an industrial injury he suffered on October 8, 1993. Having considered the Pretrial 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 56 years old and resides in Plains, Montana, with his wife, Maria DesJardins.

         2. Claimant did not graduate from high school but has a GED. He attended Clark Junior College in Vancouver, Washington, in the mid-1970s, where he received a certificate of proficiency in auto mechanics. He also attended a commercial driving school in Portland, Oregon, where he obtained his over-the-road driver's license. Claimant took machinist classes at Helena Vo-Tech in the early 1980s.

         3. Claimant has worked as a truck driver, mechanic, general laborer, welder and fabricator, and as a laborer and a field manager at a nursery. He also worked at the Crown Zellerbach paper mill in Camas, Washington, for ten years.

         4. In 1990 the claimant began working at the WI Forest Products lumber mill in Thompson Falls, Montana. During his tenure at the mill, he worked several different jobs, including the green chain, cleanup, and picking up wedges.

         Prior Back and Shoulder Injuries

         5. Claimant has a history of back and shoulder injuries. Those injuries are not at issue in this case as it is uncontested that claimant suffered new back and shoulder injuries while employed by WI Forest Products; however, they contribute to his overall physical ailments and the chronicity of those ailments. Therefore, they are catalogued in the following findings.

         6. Claimant injured his back while working for the Crown Zellerbach Mill in the 1960s. As a result of that injury, he had a laminectomy and a diskectomy. (DesJardins Dep. at 21.) Following surgery, he wore a full back brace for a year; however, he was not restricted in his activities. (Id. at 32.)

         7. Claimant reinjured his back while working at Hydro Storage, Inc., in the 1980s. That injury was treated by physical therapy and chiropractic. (Id. at 21.)

         8. Claimant injured his left shoulder in November of 1990 while working at WI Forest Products. (Id. at 22.) Dr. Carl Albertson diagnosed an impingement of the shoulder and a possible rotator cuff tear. (Ex. 1 at 1.) He performed a Mumford procedure, removing the end of the collarbone, on January 6, 1992. (Albertson Dep. at 7; Ex. 6 at 7.) Dr. Albertson restricted claimant from returning to work on the green chain at the mill, but released claimant to perform cleanup work. (Ex. 1 at 6.)

         The October 8, 1993 Injury

         9. Claimant was injured in the course and scope of his employment with WI Forest Products on October 8, 1993. He fell off a table while attempting to clear a jammed machine and sustained injuries to his knee, back, and both shoulders.

         10. At the time of claimant's industrial injury, WI Forest Products was insured by Liberty. Liberty accepted liability for the injury and paid medical expenses and temporary wage-loss benefits. Liberty is currently paying permanent partial disability and medical benefits. It denies that claimant is permanently totally disabled.

         Medical Treatment after the October 8, 1993 Industrial Injury

         11. Claimant initially sought medical care for his October 8, 1993 injury from his family physician, Dr. Mark Heppe. Dr. Heppe diagnosed claimant as suffering from a rotator cuff tear and a soft tissue injury of the lower back. (Ex. 2 at 8.) He took claimant off work and prescribed rest and several medications: Ibuprofen, Soma (a muscle relaxant), and Vicodin (a narcotic analgesic). (Id.; Heppe Dep. at 10.) When claimant's right shoulder and back failed to improve, Dr. Heppe referred claimant to Dr. George Ingham, who is an orthopedic surgeon. (Id. at 9-10.)

         12. Dr. Ingham evaluated claimant on November 5, 1993. His impressions were as follows:

         IMPRESSION:

1. Grade 1-2 rotator cuff strain. RO cuff tear with subacute subdeltoid bursitis.
2. Status post-apparent laminectomy L5-S1 left.
3. Suspect S1 radiculopathy on the R, probably secondary to recurrent disc.

(Ex. 4 at 2.) Dr. Ingham suggested conservative treatment, including physical therapy and continuation of the medications prescribed by Dr. Heppe.

         13. Dr. Read Vaughan performed an MRI on claimant's low back on November 29, 1993. (Ex. 5.) Dr. Vaughan noted:

Mild disc space narrowing and degenerative signal at L4-5 with a small amount of post surgical fibrosis dorsally around the sac. Minor annular bulge without evidence of disc herniation, spinal ...

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