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Liberty Northwest Insurance Corporation v. Stoltz

Court of Workers Compensation of Montana

November 19, 1999

LIBERTY NORTHWEST INSURANCE CORPORATION Appellant/Insurer
v.
MICHAEL STOLTZ Respondent/Claimant. COLUMBIA CONSTRUCTION, INCORPORATED Employer

          Date Submitted: July 6, 1999

          DECISION ON APPEAL

          MIKE MCCARTER, JUDGE

         Summary: Insurer appealed determination of DOL hearing officer that claimant suffered from an occupational disease, not an injury.

         Held: Hearing officer affirmed. While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.

         Topics:

Causation: Injury.
While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.
Injury and Accident: Accident.
While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.
Injury and Accident: Causation.
While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.
Occupational Disease: Disease.
While the insurer's counsel's questioning tried to make it appear that claimant's pain resulted from one incident, a complete reading of claimant's testimony shows that while there may have been one day on which claimant began experiencing pain, it was not associated with a specific event or incident. Physician's testimony suggests it is more probable that lifting over several days led to the condition, making it an occupational disease.

         ¶1 This is an appeal from a Department of Labor and Industry (Department) decision finding that Michael Stoltz (claimant) is suffering from an occupational disease.

         Record Below

         ¶2 The only witness testifying at the hearing below was the claimant, who testified by telephone. The hearing transcript amounts to 15 pages. All other evidence was presented by way of documentary exhibits and depositions, specifically those of Larry Luce, Richard Brian Trinastich, Randale C. Sechrest, M.D., Michael Righetti, M.D., and the claimant.

         Facts

         ¶3 Claimant, who is forty-three years old, has a long history of back problems. In 1984, while employed by Plum Creek Timber Company (Plum Creek), he suffered an industrial injury to his back. Following the injury, he continued to work in pain for almost eleven months. The pain became progressively worse and included right leg pain. In April 1985, claimant underwent surgery described as "EXCISION LATERAL PROTRUDING DISC L5-S1." (Ex. C at 1, 10, caps in original.)

         ¶4 Claimant returned to work following his 1985 surgery and continued to work for Plum Creek until sometime in late 1987 or early 1988, at which time he began working for Columbia Construction, Inc. (Columbia). Over the next decade claimant continued working, although with chronic low-back pain. (Tr. at 9.)

         ¶5 In August of 1995, claimant acutely experienced increased low back pain and renewed right leg pain. He was treated by Dr. Michael Righetti, an orthopedic surgeon. (Righetti Dep. Ex. 1.) Following failed attempts at more conservative treatment, on November 1, 1995, Dr. Righetti performed a second surgery at the L5-S1 level, which he characterized as a "Revision L5-S1 lumbar laminectomy with foraminotomy and discectomy, right side, L5-S1." (Id. at 3.) The surgery was the result of a non-work related aggravation and no claim for compensation was ever filed by claimant.

         ¶6 Claimant returned to work at Columbia following this surgery and thereafter worked until December 1996. However, in November 1996 he experienced renewed, acute symptoms. Claimant described the onset of his symptoms as occurring over several days while working on a project at Stoltze Lumber Company (Stoltze Lumber) in November 1996. He could not identify a singe event as giving rise to his acute symptoms. In a January 16, 1997 statement given to Liberty's adjuster, he responded to the adjusters questions regarding the onset of his symptoms as follows:

CS: And is this something that occurred on one shift or is it something you noticed occurring over a period of time?
MS: Well, I noticed it on the second day I was there. You see with my back, and its always been this way, I've had back problems before. It wasn't like a broken leg, you know where you just, boom, so I started thinking, "Okay, I've aggravated it again, so I better start taking it easy." Then it just kept getting worse. It wasn't like, like right now, I just noticed it aching and it just kept getting worse on me.
CS: Okay, and did that occur on one shift that you noticed it was really hurting you?
MS: It was the first day we were there when it started. We were there four days and by the fourth day I was noticing it, yeah.

(Stoltz Dep. Ex. 2 at 5.)

         ¶7 Claimant's deposition testimony concerning the onset of acute symptoms in November 1995 was consistent with his report to Liberty's adjuster. He could not identify a moment in time when he knew that he had reinjured his back. (Tr. at 10; Stoltz Dep. at 22-23.)

         ¶8 Claimant continued to work until December 16, 1996, when he finally "had enough." (Stoltz Dep. at 20.)

         ¶9 On January 2, 1997, he returned to Dr. Righetti, who had performed the 1995 surgery. Dr. ...


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