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Swan v. Pacific Employers Insurance Co.

Court of Workers Compensation of Montana

September 28, 2004

ANNA SWAN Petitioner
v.
PACIFIC EMPLOYERS INSURANCE COMPANY Respondent/Insurer.

          Submitted: August 24, 2004

          DECISION AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: The claimant suffered a nonwork-related low-back injury in 1998 and had surgery at her L3-L5 disk levels. She recovered from the surgery and returned to work as a nurse's aide, then suffered an additional injury to her low back. As a result of her work injury, she underwent additional surgery at the L3-S1 levels of her back. Following that surgery, her surgeon gave her a 16% whole person impairment rating. However, he also opined that she suffered an 8% impairment as a result of her 1998, non-industrial accident. Based on the latter opinion, the insurer paid only an 8% impairment award. The claimant brought the present petition for the difference between the 8% award and her 16% impairment.

         Held: Where a claimant suffers an industrial injury to the same part of the body which has previously been injured, and the impairment rating for her industrial injury is a singular rating based on the part of the body rated, she is entitled to the full amount of the award without deduction for an estimate of her prior, pre-industrial injury impairment.

         Topics:

Benefits: Impairment Awards. The rule that an employer "takes his employee subject to the employee's physical condition at the time of the employment" applies to impairment awards. Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d 327, 300 (1995). Thus, where an industrial injury aggravates a preexisting condition of the same body part, the insurer is liable for the full impairment rating without deduction for any impairment it alleges preexisted the industrial accident unless the claimant has previously received an impairment award for an industrial accident to the same part of the body, which award must be deducted. § 39-71-703, MCA (1997-2001).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-703, MCA (1997-2001). The rule that an employer "takes his employee subject to the employee's physical condition at the time of the employment," Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d 327, 300 (1995), applies to impairment awards. Thus, where an industrial injury aggravates a preexisting condition of the same body part, the insurer is liable for the full impairment rating without deduction for any impairment it alleges preexisted the industrial accident unless the claimant has previously received an impairment award for an industrial accident to the same part of the body, which award must be deducted. § 39-71-703, MCA (1997-2001).

         ¶1 This matter came on for trial in Kalispell, Montana, on August 24, 2004. Petitioner, Anna Swan (claimant), was present and represented by Mr. Kenneth S. Thomas. Respondent, Pacific Employers Insurance Company (Pacific), was represented by Mr. Charles G. Adams.

         ¶2 The sole issue in this case involves calculation of an impairment award. After discussion with counsel, I determined that the issue is one of statutory interpretation and that no evidence other than the deposition of Dr. Howard C. Chandler and the exhibits submitted by the parties was necessary. The only witness who would have testified was the claimant, and I deemed her testimony unnecessary. She therefore did not testify.

         ¶3 The claimant sustained an injury to the lumbar region of her back in 1998 in a non-industrial automobile accident. Her back injury caused pain into her legs and on September 10, 1999, Dr. Howard C. Chandler, a neurosurgeon, performed back surgery at the L3 to L5 levels. (Ex. 9 at 313-14.) The surgery consisted of an L3-L5 laminectomy and microdiscectomies at the L3-L4 and L4-L5 levels. (Id.)

         ¶4 The claimant recovered from her surgery and returned to work as a nurse's aide. Thereafter, on August 23, 2002, the claimant injured her back while working as a nursing assistant. (Ex. 1 at 1.) The injury again involved the lumbar portion of her back.

         ¶5 At the time of her 2002 industrial injury, the claimant's employer was insured by Pacific. (Ex. 3 at 1.) Pacific accepted liability for her accident.

         ¶6 As a result of the claimant's 2002 industrial injury, Dr. Chandler performed additional surgery on the claimant's lumbar spine. This time, he performed an L3-S1 decompression and posterior fusion. (Ex. 9 at 345-48.) The new surgery thus involved the original levels (L3-L5) of the claimant's 1999 surgery and one additional level (L5-S1).

         ¶7 Following the claimant's reaching maximum medical improvement (MMI) from her industrial injury and the L3-S1 surgery, Dr. Chandler rated the claimant's lumbar impairment at 16% of the whole person. (Ex. 9 at 358; Chandler Dep. at 19-20.)

         ¶8 Dr. Chandler did not initially render an impairment rating for the claimant's 1998 lumbar injury since her injury was not work related. However, following the claimant's 2002 industrial injury, Pacific asked him to provide an "estimate" of her impairment attributable to her ...


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