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Brown v. Montana Contractor Compensation Fund

Court of Workers Compensation of Montana

November 3, 2004

CURT BROWN Petitioner
v.
MONTANA CONTRACTOR COMPENSATION FUND Respondent/Insurer.

          Submitted: August 24, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: 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 industrial accident.

         Held: 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.

         Topics:

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.

         ¶1 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 J. Luck.

         ¶2 Exhibits: Exhibits 1 through 7, being all of the exhibits offered, were admitted without objection.

         ¶3 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.

         ¶4 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.

         (Pretrial Order at 4.)

         ¶5 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:

         FINDINGS OF FACT

         ¶6 The petitioner in this case is Curt Brown (claimant). He is 47 years old and has worked for twenty-five years as a heavy equipment ...


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