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Petitioner v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 1, 1998

MICHAEL DURHAM Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for VRENDENBURG ENTERPRISES Employer.,

          Date Submitted: June 16, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: During 1992, 40-year old ranch foreman was crushed by cattle moving through a gate. He suffered injury to his heart and to cervical and thoracic vertebrae. He alleges permanent total disability, not due to heart or spine problems, but because of fatigue and inability to concentrate. In 1995, claimant earned an associate of applied science degree in electronics engineering technology, which claimant testified was training for computer and copier repair. In 1996, claimant received a bachelor of science degree in applied science, earning a perfect 4.0 grade point average from a school in Utah. Although he was offered a job from a computer company paying $30, 000 annually, he turned it down on the belief he could not work full time.

         Held: But for claimant's alleged fatigue and inability to concentrate, he is qualified to perform a number of computer-related jobs, some of which are sedentary. The Court was not persuaded by the testimony of claimant or his treating physician, a family practitioner, that he is unable to concentrate on job tasks on a full-time basis. The treating physician's testimony was based largely on claimant's subjective reports. The Court found claimant's testimony regarding inability to concentrate exaggerated, citing evidence that claimant performed well in school, has done some work, and was believed able to perform at least sedentary work by some physicians, one of whom attributed claimant's complaints to deconditioning.

         Topics:

Benefits: Permanent Total Benefits: Generally. 40-year old former ranch hand sought PTD benefits following accident with cattle. Although accident caused spine and heart problems, PTD claim was based on alleged fatigue and inability to concentrate. As the result of post-injury schooling, claimant was clearly qualified to perform a number of computer-related jobs, some of which were sedentary. The Court was not persuaded by the testimony of claimant or his treating physician, a family practitioner, that he is unable to concentrate on a full-time basis. The treating physician's testimony was based largely on claimant's subjective reports, which the Court found exaggerated, citing evidence that claimant performed well in school, had done some work post-injury, and was considered able to perform at least sedentary work by some physicians, one of whom attributed claimant's complaints to deconditioning.
Physicians: Conflicting Evidence. Court was not persuaded by evidence of treating physician, a family practitioner, that claimant could not work due to fatigue and difficulty concentrating, where opinion was based largely on claimant's subjective reports, which Court found were exaggerated.
Proof: Conflicting Evidence: Medical. Court was not persuaded by evidence of treating physician, a family practitioner, that claimant could not work due to fatigue and difficulty concentrating, where opinion was based largely on claimant's subjective reports, which Court found were exaggerated. More credence was given to evidence from other medical practitioners, who believed claimant capable of at least sedentary work, one of whom attributed his complaints to deconditioning.

         ¶1 The trial in this matter was held on May 27, 1998, in Kalispell, Montana. Petitioner, Michael Durham (claimant), was present and represented by Mr. Garry D. Seaman. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Todd A. Hammer. A transcript of the trial has not been made.

         ¶2 Exhibits: Exhibits 1 through 36 and 38 through 46 were admitted. Exhibit 37 was refused.

         ¶3 Witnesses and Depositions: Michael Durham, Mark Schwager, and Terri Roach were sworn and testified. The parties agreed that the Court shall consider the depositions of Michael Durham, Mark Schwager, Dr. Brent Muhlestein, Dr. Stephen H. Nichols, Dr. Donald Hamner, and Terri Roach.

         ¶4 Issues Presented: Claimant contends that he is permanently totally disabled as a result of his October 2, 1992 accident, and that he is entitled to permanent total disability benefits. He also seeks attorney fees and costs.

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the proposed findings of fact and conclusions of law filed by the parties post-trial, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Claimant is presently 40 years of age. At the time of trial he was living with his parents in the state of Kentucky and was unemployed.

         ¶7 Prior to his injury, the claimant had only obtained a high school education.

         ¶8 Claimant self-reports that he has an I.Q. of 140. (Trial Test.) Based on his academic success following his industrial injury, the Court has no reason to doubt his report.

         ¶9 Despite claimant's high intelligence, he has worked only in labor-type positions. He worked at a sawmill and built houses from 1975 to 1981. He thereafter worked as a ranch hand from 1981 to 1985. In 1985 he was hired as a ranch foreman for Vrendenburg Enterprises (Vrendenburg) in Lincoln County, Montana. He continued in that position until 1993.

         Industrial Injury

         ¶10 On October 2, 1992, claimant was injured in the course of his employment with Vrendenburg. He was moving cattle when the cattle pushed a gate against him. He was caught between the gate and a wall and was crushed.

         ¶11 Vrendenburg was insured by the State Fund. The State Fund accepted liability for the claim and has paid various benefits. (Pretrial Order at 2.)

         Initial Medical Treatment

         ¶12 The parties do not dispute that claimant suffered a severe injury of the cervical and thoracic spine and his heart.

         ¶13 Although claimant continued working in the belief that he had suffered only cracked ribs (Ex. 27 at 2), within two weeks he developed extreme pain in his left arm. On October 21, 1992, he was admitted to Kalispell Hospital and seen by Dr. Jack L. Davis, an internist. At the time of admission, Dr. Davis recorded that he was suffering "chest discomfort characteristic of pericarditis or sternal injury . . ., increasing shortness of breath and weakness with left arm discomfort . . . ." (Ex. 11 at 8.) Dr. Davis determined that claimant suffered "a crush[ing] injury." (Id. at 17.) He treated claimant until December of 1993, and his final diagnoses of claimant's injuries were "[p]ost-traumatic cervical disc disease and cardiomyopathy." (Ex. 7 at 18.)

         ¶14 "Cardiomyopathy is a general term utilized to describe a situation where the heart function in not completely normal." (Muhlestein Dep. at 15; see also Nichols Dep. at 11.) Physicians treating claimant since his injury have used the term to describe claimant's heart condition.

         ¶15 In the claimant's case, the condition was initially evidenced by an abnormal "ejection fraction," which is "the percentage of blood that a heart is able to pump out with each beat from the total amount of blood that is in the heart at the time just before it contracts." (Muhlestein Dep. at 15, 16.) Dr. Davis reported on October 21, 1992, that claimant's ejection fraction was 26% (Ex. 11 at 10), which is significantly impaired (Nichols Dep. at 9). Further testing on November 23, 1992, showed an improved ejection fraction of 40%. (Ex. 11 at 11; Nichols Dep. Ex. 2 at 2.) Three and a half years later, in March of 1996, the claimant's ejection function was 61%, which is normal. (Nichols Dep. at 10; Nichols Dep. Ex. 2 at 2; and Ex. 22 at 13.)

         ¶16 In addition to the cardiomyopathy, and as noted by Dr. Davis in his final diagnoses, claimant also sustained cervical and thoracic injuries of his spine. Dr. Robert D. Schimpff, a neurologist, evaluated claimant at Dr. Davis' request. He initially examined claimant on November 23, 1992, at which time claimant complained of "lost strength in the left arm . . . occasional numbness in the left arm radiating from the shoulder anteriorly over the biceps and into the anterior forearm . . . [and] pain in his neck which is made worse by trying to look back and to the right." (Ex. 17 at 1.) An MRI disclosed "small disc herniations occurring at C5-6, T6-7, T7-8 and T8-9." (Id. at 2.) Dr. Schimpff deemed the herniation at the C5-6 as the "only clinically significant herniation." (Id.) Claimant's neck and left arm symptoms improved. (Ex. 17, passim.)

         Alleged Disability

         ¶17 Claimant does not contend that he is totally disabled on account of his cervical and thoracic injuries. No further discussion of that condition is necessary.

         ¶18 He also does not contend that his cardiac function is in itself disabling.

         ¶19 Rather, claimant's disability case rests on his contention that he is unable to work on account of fatigue and an inability to concentrate. His testimony is supported by his current treating physician, Dr. Donald L. Hamner, a family practitioner, who testified by deposition that claimant is unable to work because he is unable to concentrate on job tasks on a full-time basis. However, Dr. Hamner's testimony is based largely on claimant's subjective reports.

         Claimant's Post-Injury Education and Employment Opportunities

         ¶20 In the fall of 1993, claimant began two years of studies at the ITT Technical Institute (ITT) in Spokane, Washington, successfully finishing his studies in September 1995. He earned an associate of applied science degree in electronics engineering technology. According to claimant, his schooling trained him to perform computer and copier repair. (Ex. 44.)

         ¶21 The Spokane ITT program was medically approved. It was also approved by claimant's assigned vocational consultant.

         ¶22 At the Spokane ITT, claimant attended two hours of classes followed by two hours of computer laboratory, amounting to four continuous hours.[1] There were, however, ten minute breaks between classes.

         ¶23 During the two years he attended the Spokane ITT program, claimant missed only one and a half days of classes. He graduated in September 1995, with a 3.7 grade point average. (Id. at 6-7.)

         ¶24 Upon graduating from the Spokane ITT program, claimant enrolled at another ITT school in Utah and pursued a program leading to a degree of bachelor of science of applied science. Claimant graduated in September 1996, with a perfect 4.0 grade point average. He had a perfect attendance record. (Id. at 9.)

         Job Search and Job Offers

         ¶25 Since his graduation from Utah ITT, claimant has not sought employment. However, in April 1997, claimant's father forwarded a resume for his son to a computer company located near where claimant lives. The company contacted claimant and offered him a job paying $30, 000 annually. Claimant rejected the offer. He testified that he did not believe he could work full time.

         Further ...


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