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Paterson v. Montana Contractor Compensation Fund

Court of Workers Compensation of Montana

June 22, 1998

COLIN G. PATERSON Petitioner
v.
MONTANA CONTRACTOR COMPENSATION FUND Respondent/Insurer DICK ANDERSON CONSTRUCTION Employer.,

          Submitted: April 24, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: 47-year old carpenter sought TTD benefits based on 1995 back injury at work. Following a 1996 nonwork back injury, he sought TTD and medical benefits based on the 1995 injury. Insurer argued claimant had reached MMI on the 1995 injury, which it characterized as minor, and that pursuant to section 39-71-407(5), MCA (1993) it was not liable for compensation or medical benefits caused by the subsequent nonwork-related injury.

         Held: The 1995 injury was minor. Claimant reached MMI on that injury prior to July 4, 1996, when he permanently aggravated his back condition. The 1996 injury was much more serious than described by claimant, who was not forthright in his testimony. The insurer is not liable for TTD or medical benefits following the 1996 aggravation.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-407(5), MCA (1993). Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]
Injury and Accident: Aggravation: Generally. Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]
Injury and Accident: Subsequent Injury. Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]
Maximum Medical Improvement (MMI). Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]

         ¶1 The trial of this matter was held on April 20, 1998, in Great Falls, Montana. Trial was recessed that evening, and reconvened on April 24, 1998. Petitioner, Colin G. Paterson (claimant), was present and represented by Mr. Randall O. Skorheim. The respondent, Montana Contractor Compensation Fund, was represented by Mr. Bradley J. Luck.

         ¶2 Exhibits: Exhibits 1 through 32 were admitted without objection.

         ¶3 Witnesses and Depositions: The claimant, Jeff Albrecht, Rodney Lee "Gus" Brown, Jan Anderson, Gary Doerr, Larry Dravecky, Dr. Ronald M. Peterson, Terry Gibson, Pat Laabs, Scott Wilson and Greg Schermele were sworn and testified. The parties also agreed that the depositions of claimant and Jan Anderson could be considered part of the record.

         ¶4 Issues: As framed by the parties in the Pretrial Order, the issues in this case are:

1.Whether the Petitioner is temporarily, totally disabled as a result of his industrial injury of 4/13/95 and entitled to retroactive and ongoing bi-weekly compensation and payment of medical expenses.
2.Whether the Petitioner attained medical stability at any time prior to his exacerbation of 6/4/96. [sic]
3.Whether the Respondents denial of medical and bi-weekly compensation benefits was unreasonable, entitling Petitioner to a 20% penalty, attorneys fees and cost.

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

         FINDINGS OF FACT

         ¶6 Claimant is 47 years old and resides in Sun River, Montana. He is married (common-law) to Jan Anderson since sometime in late 1995 or early 1996.

         ¶7 Claimant is a carpenter. Primarily he has worked as a residential carpenter.

         ¶8 Claimant has also worked as a full-time professional artist but testified that he lost his creativity following a divorce several years ago, causing him to return to carpentry.

         ¶9 In March 1995, claimant was hired as a commercial carpenter for Dick Anderson Construction (Anderson). Claimant thereafter worked on commercial construction of the Mountain West Bank (Bank) in Great Falls.

         ¶10 Commercial carpentry is heavier work than residential carpentry. Testimony at trial established that commercial carpentry is heavy labor and that there are no light or medium- duty commercial carpentry jobs.

         ¶11 Claimants work on the Bank included carrying and placing steel forms for footings; unloading, setting and securing trusses; hauling and lifting materials; roof framing and sheeting; construction of building entrances; and wall framing.

         ¶12 On April 13, 1995, claimant suffered a back injury at work when he slipped as he was carrying two steel forms through the Bank building. Claimant did not fall but the slip caused him to twist and jerk in his effort to keep his balance.

         ¶13 Claimant experienced pain in his left buttocks, the back of his left thigh, and his lower back. He sought treatment from chiropractor Dr. Timothy Six. Dr. Six treated him five times on three separate days, April 13, April 14 and May 25, 1995.

         ¶14 Claimant did not miss work on account of his back pain. He continued to work for Anderson until he was laid off on April 24, 1995, due to lack of work. The only time ...


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