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Wall v. National Union Fire Insurance Co.

Court of Workers Compensation of Montana

February 24, 1998

GUY WALL Petitioner
v.
NATIONAL UNION FIRE INSURANCE COMPANY Respondent/Insurer for BARRETTS MINERALS, INCORPORATED Employer.,

          Submitted: November 14, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: 40 year old mill worker with history of left knee problems felt excruciating knee pain upon dismounting a rail car ladder 12-18 inches off the ground. Although continuing that shift, he sought medical treatment from his treating physician, who diagnosed a medial meniscal tear with ongoing patellar tendinitis of the left knee. The treating physician, a board certified orthopedic surgeon with a one-year fellowship in arthroscopy and sports medicine, treats 400-500 knee conditions annually. Claimant continued to work until he experienced increased left knee pain while shoveling snow approximately five weeks later. His treating physician took him off work and recommended prompt arthroscopic surgery. Claimant filed two claims, one relating to the ladder dismounting and the second relating to shovelling. He had also filed an occupational disease claim the prior year relating to his left knee problem. The insurer denied all claims, relying on an IME opinion from an orthopedic surgeon whose credentials regarding knee conditions, if any, were not established and not inquired into by the insurer. In addition, although the IME physician believed claimant suffered from a knee condition which was 50% occupationally related, the insurer denied the OD claim in its entirety. Even after the treating physician challenged the insurer's position and recommended another IME with an expert in knee conditions and arthroscopic surgery, the insurer maintained its denial of all claims and did nothing futher to investigate. The insurer also disregarded a warning from an RN case manager that if claimant "doesn't receive treatment, I worry that he may not be able to do the lightest duty alternative job."

         Held: The claims are compensable and claimant is entitled to a penalty and attorneys fees. The insurer's arguments that no accident or injury occurred have no merit. Claimant experienced a significant traumatic event when stepping off the rail car ladder. Medical evidence indicated his prior knee problems had resolved and the condition following the incident was different. Claimant was a credible witness with a long, steady work history. His claims were supported by testimony of his treating physician, whose opinions are entitled to special weight since he knew claimant's condition both prior to and following the industrial incidents. Moreover, the treating physician's expertise in the specific condition was proven. Even if the dismounting incident were not considered a traumatic incident in the strict sense, a compensable injury can be proven with evidence of "an unusual result from a work-related strain" where internal or external harm is established by objective medical findings. Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, denial of the OD claim despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician. TTD and medical benefits awarded, with penalty on both.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code annotated: section 39-71-119, MCA (1995). Where claimant credibly testified to stepping 12-18 inches from a rail car ladder to the ground, and falling to the ground in severe left knee pain, he established an accident and injury within section 39-71-119, MCA (1995). Even if the dismounting incident were not considered a traumatic incident in the strict sense, a compensable injury can be proven with evidence of "an unusual result from a work-related strain" where internal or external harm is established by objective medical findings. Credible medical evidence from claimant's treating physician, an expert in sports medicine and knee conditions who treated claimant's knee condition both before and after the incident, established that following the dismounting incident claimant's condition was different, with a different diagnosis and requiring different treatment.
Constitutions, Statutes, Regulations and Rules: Montana Code annotated: section 39-71-612, MCA (1995). Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Constitutions, Statutes, Regulations and Rules: Montana Code annotated: section 39-71-2907, MCA (1995). Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Constitutions, Statutes, Regulations and Rules: Workers' Compensation Court Rules: ARM 24.5.318. Where counsel failed to note objections to exhibits in Pretrial Order as required by ARM 24.5.318, exhibits admitted despite objections voiced at trial.
Attorneys Fees: Cases Awarded. Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Attorneys Fees: Unreasonable Denial or Delay of Payment. Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Evidence: Exhibits: Objection in Pretrial Order. Where counsel failed to note objections to exhibits in Pretrial Order as required by ARM 24.5.318, exhibits admitted despite objections voiced at trial.
Evidence: Expert Testimony: Physicians. As a general rule, the testimony of a treating physician is entitled to greater evidentiary weight, although it is not conclusive. At minimum, the treating physician is the tie breaker where there is evenly balanced, conflicting medical testimony. In this particular case, not only did the treating physician have experience with claimant's condition both pre- and post-injury, he had the greater medical expertise with respect to claimant's knee condition.
Injury and Accident: Accident. Where claimant credibly testified to stepping 12-18 inches from a rail car ladder to the ground, and falling to the ground in severe left knee pain, he established an accident and injury within section 39-71-119, MCA (1995). Even if the dismounting incident were not considered a traumatic incident in the strict sense, a compensable injury can be proven with evidence of "an unusual result from a work-related strain" where internal or external harm is established by objective medical findings. Credible medical evidence from claimant's treating physician, an expert in sports medicine and knee conditions, established that following the dismounting incident claimant's condition was different, with a different diagnosis and requiring different treatment.
Injury and Accident: Objective Medical Evidence of. Where claimant credibly testified to stepping 12-18 inches from a rail car ladder to the ground, and falling to the ground in severe left knee pain, he established an accident and injury within section 39-71-119, MCA (1995). Even if the dismounting incident were not considered a traumatic incident in the strict sense, a compensable injury can be proven with evidence of "an unusual result from a work-related strain" where internal or external harm is established by objective medical findings. Credible medical evidence from claimant's treating physician established that following the dismounting incident claimant's condition was different, with a different diagnosis and requiring different treatment.
Injury and Accident: Unexpected Strain or Injury. Where claimant credibly testified to stepping 12-18 inches from a rail car ladder to the ground, and falling to the ground in severe left knee pain, he established an accident and injury within section 39-71-119, MCA (1995). Even if the dismounting incident were not considered a traumatic incident in the strict sense, a compensable injury can be proven with evidence of "an unusual result from a work-related strain" where internal or external harm is established by objective medical findings. Credible medical evidence from claimant's treating physician, an expert in sports medicine and knee conditions, who treated claimant's knee condition both before and after the incident, established that following the dismounting incident claimant's condition was different, with a different diagnosis and requiring different treatment.
Medical Conditions: Depression. Where psychologist opined that claimant's depression was in response to the life adjustments necessitated by his injury and to the frustrations resulting from the continuing court processes that have been necessary to redress his injury, and insurer's conduct in adjusting the case was not reasonable, the depression was related to his injury and its treatment compensable.
Penalties: Insurers. Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.
Physicians: Treating Physician: Weight of Opinions. As a general rule, the testimony of a treating physician is entitled to greater evidentiary weight, although it is not conclusive. At minimum, the treating physician is the tie breaker where there is evenly balanced, conflicting medical testimony. In this particular case, not only did the treating physician have experience with claimant's condition both pre- and post-injury, he had the greater medical expertise with respect to claimant's knee condition.
Procedure: Pretrial Order. Where counsel failed to note objections to exhibits in Pretrial Order as required by ARM 24.5.318, exhibits admitted despite objections voiced at trial.
Proof: Conflicting Evidence: Medical. As a general rule, the testimony of a treating physician is entitled to greater evidentiary weight, although it is not conclusive. At minimum, the treating physician is the tie breaker where there is evenly balanced, conflicting medical testimony. In this particular case, not only did the treating physician have experience with claimant's condition both pre- and post-injury, he had the greater medical expertise with respect to claimant's knee condition.
Unreasonable Conduct by Insurers. Penalty and attorneys fees are warranted based on the insurer's unreasonable denial of the claim, reflected in its failure to ascertain the IME physician's qualifications for the condition at issue, continued reliance on the IME physician's opinions despite information suggesting the treating physician was more qualified, denial of an OD claim in its entirety despite the IME physician's opinion 50% of the condition was occupational, and disregard for some facts and for the opinions of the nurse manager and treating physician.

         ¶1 The trial in this matter was held on November 14, 1997, in Helena, Montana. Petitioner, Guy Wall (claimant), was present and represented by Mr. Richard J. Pyfer. Respondent, National Union Fire Insurance Company (National Union), was represented by Mr. Donald R. Herndon.

         ¶2 Exhibits: In November 7, 1997 correspondence with the Court's Hearing Examiner, National Union stated that it had no foundation objections to the exhibits listed by claimant but said, "All other objections are reserved depending upon the manner and purpose for which these exhibits may be offered at trial." (November 7, 1997 Herndon letter to Ms. Clarice Beck, Court File.) At trial the Court held that National Union cannot reserve objections until trial. Rule 24.5.318 of this Court provides that the pretrial order must set out any objections a party may have to the adverse party's exhibits. In relevant part, it states that the pretrial order must contain:

(g) a list of all exhibits to be offered by each party, including the grounds of any objections an adverse party may have to the admission of particular exhibits;

ARM 24.5.318(5)(g). Neither National Union nor claimant set forth any objections to the exhibits listed in the Pretrial Order. Exhibits 1 through 35 were therefore admitted.

         ¶3 Witnesses and Depositions: The only witnesses testifying at trial were the claimant and David Odermann, the claims adjuster in charge of adjusting the claim. The depositions of claimant, his wife (Sandra Wall), Daniel J. Downey, M.D., and James T. Lovitt, M.D., were submitted to the Court for its consideration.

         ¶4 Issues: The parties have stated the issues as follows:

1.Whether Petitioner suffered compensable industrial "accidents" on February 19, 1996 and/or March 23, 1996 within the meaning of § 39-71-119, MCA.
2.Whether Petitioner suffered an "injury" proximately caused by either or both of the industrial accidents alleged to have occurred on February 19, 1996, and March 23, 1996, within the meaning of § 39-71-119, MCA.
3.Whether Petitioner's claims should be processed and adjusted as an occupational disease claim pursuant to Chapter 72, Title 39, MCA.
4.Whether Respondent/Insurer unreasonably refused to pay benefits to Petitioner entitling Petitioner to an increase of an award of twenty percent (20%).
5.Whether the Respondent/Insurer and Employer shall be required to pay reasonable costs and attorney's fees to Petitioner.

(Pretrial Order at 2.)

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

         FINDINGS OF FACT

         ¶6 Claimant is 40 years of age. In 1984 he began working at a talc mill operated by Pfizer Company in Dillon, Montana. He worked at the mill continuously until March 23, 1996. In 1990 Barretts Minerals bought the mill and claimant became an employee of that company.

         ¶7 Claimant initially operated a forklift and bagged and moved talc. Over the years he was advanced to other positions, including compactor operator, boiler operator trainee, equipment operator, relief supervisor and mill operator.

         ¶8 In February and March 1996, claimant was a relief supervisor and mill operator.

         ¶9 In the late 1980s the claimant suffered an injury to his right knee in a water skiing incident.

         ¶10 In the Spring of 1995, the claimant began experiencing pain in his left knee. The onset of pain occurred in conjunction with increased stair climbing at work.

         ¶11 On June 27, 1995, claimant sought medical treatment for his left knee from Dr. Daniel J. Downey. Dr. Downey's medical history for the initial visit noted that claimant had a painful knee for approximately two months due to stair climbing at work. (Ex. 1; Downey Dep. at 10.) He diagnosed patellar tendinitis of the left knee, noting that patellar tendinitis is typically due to overuse. (Downey Dep. at 11.) He prescribed muscle strengthening using an exercise bicycle and physical therapy. (Exs. 1, 23 and 25.)

         ¶12 Claimant continued working, albeit with pain. He was not taken off work.

         ¶13 Claimant completed physical therapy in July 1995. (Ex. 23 at 63.) His left knee pain resolved by September or October 1995, and he was thereafter able to work without difficulty.

         ¶14 On February 19, 1996, between 11:00 a.m. and noon, claimant was helping move rail cars used to haul talc. During the move claimant mounted a ladder on a rail car. As he stepped off the ladder onto the ground, he felt excruciating pain in his left knee and collapsed to the ground.

         ¶15 The distance between the bottom step of the ladder to the ground was twelve to eighteen inches.

         ¶16 Claimant lay on the ground for several minutes before getting up. He then continued working and completed his shift at approximately 7:00 p.m. His knee continued to hurt during the remainder of his work shift.

         ¶17 February 19, 1996, was a holiday - Presidents' Day - and claimant was the supervisor in charge of the mill.

         ¶18 Claimant's next day of work was February 22, 1996. On that date he reported the incident of February 19 to his supervisor. A written report of the incident was prepared. (Ex. 3.)

         ¶19 Claimant contacted Dr. Downey's office for an appointment on February 20 or 21, but was unable to obtain an appointment with the doctor until March 4, 1996.

         ¶20 Claimant continued working but had significant pain in his left knee.

         ¶21 Dr. Downey examined claimant on March 4. His office note for that date reported that claimant had been doing well with respect to his left knee since "last fall" until the February 19 rail car incident. (Ex. 27 at 76.) He noted that claimant suffered "increased pain since that time [February 19] with catching at the medial jointline." (Ex. 27 at 75.) Upon examination, he found a "positive McMurray's sign" and diagnosed a medial meniscal tear with ongoing patellar tendinitis of the left knee. (Id.) He prescribed physical therapy and noted that if the physical therapy was not successful then arthroscopic surgery should be considered. (Id.)

         ¶22 Claimant continued to work. He worked the graveyard shift on March 22-23, 1996. It snowed that day, and in the early morning hours of March 23 he experienced increased left knee pain while shoveling snow. He was unable to continue work and left work early. He never returned to his job with Barretts Minerals.

         ¶23 Claimant saw Dr. Downey two days later, on March 25, 1996. Dr. Downey noted that claimant experienced increased pain while shoveling snow. (Ex. 27 at 75.) Upon examination, he again found a positive McMurray's sign. He scheduled arthroscopic ...


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