Submitted: March 10, 1998
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Claimant, who has a history of chronic low back pain,
suffered injury involving left knee, neck, and back. TTD was
paid, along with medical benefits. Approximately five months
after the injury, claimant was found at maximum medical
healing and given a 0% impairment rating relating to any new
injuries. A doctor who had treated claimant pre-injury noted
a 5% impairment for the chronic low back condition, but
stated this condition was the same as before the injury.
Claimant demanded PPD benefits, additional testing and
treatment, and further TTD benefits.
Under section 39-71-703, MCA (1995), claimant was not
entitled to PPD benefits where he did not prove an impairment
rating "more than zero." The low back condition was
a chronic condition not permanently aggravated by the work
injury. No doctor has recommended additional treatment; one
doctor specifically noted claimant has been "adequately
treated." Petition dismissed.
Benefits: Permanent Partial Benefits:
Generally. Under section 39-71- 703, MCA (1995),
claimant was not entitled to PPD benefits where he did not
prove an impairment rating "more than zero."
Although claimant had a 5% impairment from a chronic low back
condition, that condition pre-existed the injury.
The trial in this matter was held on Tuesday, March 10, 1998,
in Helena, Montana. Petitioner, Toby C. McAdam (claimant),
was present and represented himself. Respondent, National
Union Fire Insurance Company of Pittsburgh (National), was
represented by Mr. Kelly M. Wills.
Exhibits: Exhibits 1 through 4, as attached to the
deposition of Dr. Thomas L. Schumann, were admitted without
Witnesses and Depositions: The depositions of Thomas
L. Schumann, M.D. and claimant were submitted to the Court
for its consideration. No witnesses testified, rather the
parties agreed that the matter is to be submitted for
decision based on the depositions and exhibits. Mr. McAdam
and Mr. Wills presented oral argument and the matter was then
Issues: The issues as set forth in the Pretrial
Order are as follows:
1.Whether Petitioner has a permanent impairment rating as a
result of the injury he sustained to his cervical and upper
upper [sic] thoracic regions of the body pursuant to §
39-71-703 (1) (b), M.C.A. (1995).
2.Whether Petitioner is entitled to any permanent partial
disability [PPD] benefits as a result of the industrial
injury pursuant to § 39-71-703, M.C.A. (1995).
3.Whether Petitioner suffered a permanent injury to his low
back as a result of the June 1, 1997 industrial accident.
4.Whether Respondent should be required to authorize and pay
for either a second opinion, MRI or CT scan to further assess
the injury Petitioner sustained to the cervical and upper
thoracic region of his body pursuant to § 39-71-704,
M.C.A. (1995), and temporary total disability [TTD] benefits
during the period such a second opinion, MRI or CT scan can
5.Whether Petitioner actually suffered a carpal tunnel
syndrome as a result of the June 6, [sic] 1997 industrial
* * * * *
Having considered the Pretrial Order, the depositions and
exhibits, and the arguments of the parties, the Court makes
Claimant has a history of chronic lower back pain.
(Uncontested Fact ¶ 3.) He has had back pain at least
since a 1980 industrial injury he suffered in North Dakota.
Dr. Schumann treated claimant on or about February 27, 1995,
and diagnosed him with chronic low-back pain, with worse pain
in the area of the sacroiliac joint. Work limitations were
placed on claimant as follows: no lifting over 25 to 50
pounds; no repetitive bending or twisting of back; and
permission to change posture regularly. A report by Dr.
Singer on or about March 14, 1995, concurred with the
findings of Dr. Schumann. (Uncontested Fact ¶ 5.)
In April 1997, a physician's assistant (PA) working for
Dr. Schumann conducted a pre-employment physical of claimant
prior to his going to work for SYSCO Food Services of Montana
(SYSCO). The PA did not place any physical restrictions on
claimant, and claimant went to work for SYSCO as a laborer.
On June 1, 1997, claimant suffered an industrial injury
arising out of and in the course of his employment with
SYSCO, an employer enrolled under Compensation Plan No. II of
the Montana Workers' Compensation Act and insured by
National. Liability was accepted by National for injuries
sustained by claimant to his left knee, upper back and neck.
Claimant's lower back was also injured. Claimant suffers
chronic low-back pain. (Uncontested Fact ¶1.)
Temporary total disability benefits were paid to claimant
following his industrial injury. Thereafter, claimant
returned to work with SYSCO in a light-duty position and was
paid temporary partial disability benefits. Medical benefits
have been paid for the treatment related to the industrial
injury, except for the carpal tunnel that was diagnosed
during the course of treatment. Insurer timely denied
liability for the carpal tunnel condition. (Uncontested Fact
Claimant did state, while being treated for the upper
thoracic and cervical injury, that he has always had low-back
pain and he could not attribute additional low-back pain to
the June 1, 1997 injury, since the low-back pain had been
chronic for years. The only pain that claimant experienced in
the back that he had not experienced prior to the injury of
June 1, 1997, was the pain in the ...