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McAdam v. National Union Fire Insurance Company of Pittsburgh

Court of Workers Compensation of Montana

March 23, 1998

TOBY McADAM Petitioner
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH Respondent/Insurer for SYSCO FOODS OF MONTANA Employer.

          Date Submitted: March 10, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 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.

         Held: 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.

         Topics:

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.

         ¶1 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.

         ¶2 Exhibits: Exhibits 1 through 4, as attached to the deposition of Dr. Thomas L. Schumann, were admitted without objection.

         ¶3 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 deemed submitted.

         ¶4 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 be completed.
5.Whether Petitioner actually suffered a carpal tunnel syndrome as a result of the June 6, [sic] 1997 industrial accident.
* * * * *

         ¶5 Having considered the Pretrial Order, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 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.

         ¶7 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.)

         ¶8 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.

         ¶9 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.)

         ¶10 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 ¶2.)

         ¶11 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 ...


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