Submitted: August 24, 2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant injured his low back at work on September 5,
2000. On January 1, 2001, he reported to his treating
physician that he felt "pretty much normal," was
declared at maximum medical improvement, and was released to
his time-of-injury job as a heavy equipment operator. He
looked for but could not find work during the spring and
summer of 2001. Then, in early August 2001, he experienced a
popping sensation in his back while working on construction
of a pavilion for his church. Thereafter, he had continued
back problems but seeks to attribute those problems to his
The claimant suffered a subsequent, nonwork-related injury or
aggravation which relieves the insurer of further liability
with respect to the claimant's September 5, 2000 injury.
Injury and Accident: Subsequent Injury.
Where a claimant suffered a work-related low-back injury but
thereafter reached maximum medical improvement and suffered a
new, material injury or aggravation, the insurer for the
first injury is relieved from further liability for the
claimant's back condition.
The trial in this matter was held in Kalispell, Montana, on
August 24, 2004. Petitioner, Curt Brown, was present and
represented by Mr. Kenneth S. Thomas. Respondent, Montana
Contractor Compensation Fund, was represented by Mr. Bradley
Exhibits: Exhibits 1 through 7, being all of the
exhibits offered, were admitted without objection.
Witnesses and Depositions: The petitioner, his wife,
Cindy L. Brown, and his son, Josh Brown, testified. In
addition, the parties submitted the depositions of the
petitioner and of Drs. J. Mark McGlothlin and Lawrence J.
Iwersen for the Court's consideration.
Issues Presented: As framed by the parties in the
Pretrial Order, the issues in this case are:
¶4a Whether Petitioner's current medical condition
and disability are caused by his industrial injury of
September 5, 2000, and Respondent remains liable for payment
of disability and medical benefits or whether his current
condition was caused by a non-work related event to the same
part of the body subsequent to September 5, 2000, and
Respondent is not liable for such payments pursuant to
§39-71-407(5) MCA, or other Montana law.
¶4b Whether Petitioner is temporarily and totally
disabled and entitled to retroactive and ongoing temporary
total disability benefits until he reaches maximum healing
pursuant to §39-71-701, MCA.
Order at 4.)
Having considered the Pretrial Order, the testimony presented
at trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, and the arguments of the parties,
the Court makes the following:
The petitioner in this case is Curt Brown (claimant). He is
47 years old and has worked for twenty-five years as a heavy