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Leger v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

November 5, 2004

DAVID LEGER Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer.

          Submitted: August 24, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary:

          The claimant suffered a low-back injury at work in June 1995 and experienced some leg pain at the time. However, following physical therapy he returned to full-duty work at UPS after two months and continued working for UPS until 1998, when he was terminated. In 2000 he experienced low-back and leg pain like he had never before experienced; MRI imaging disclosed a herniated disk at the L5-S1 level which was impinging on nerve roots. In his petition to the Court, the claimant claims that his condition in 2000 was attributable to his 1995 industrial accident.

         Held:

         The claimant suffered a subsequent, nonwork-related injury to his low back in early 2000. The nonwork-related injury materially and permanently aggravated his preexisting low-back condition. Pursuant to section 39-71-407(5), MCA (1993), the insurer at risk for the 1995 condition is relieved from further liability for the claimant's low-back condition.

         Topics:

Injury and Accident: Subsequent Injury. Where a claimant suffers a subsequent nonwork-related injury to the same body part and the injury materially and permanently aggravates the preexisting condition involving that body part, the insurer liable for a prior injury to that same part is relieved from further liability for disability and treatment involving the body part. § 39-71-407(5), MCA (1993).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-407(5), MCA (1993). Where a claimant suffers a subsequent nonwork-related injury to the same body part and the injury materially and permanently aggravates the preexisting condition involving that body part, the insurer liable for a prior injury to that same part is relieved from further liability for disability and treatment involving the body part.
Injury and Accident: Subsequent Injury. Where a nonwork-related incident satisfies the injury and accident definitions of section 39-71-119, MCA (1993), the incident constitutes a subsequent nonwork-related injury for purposes of section 39-71-407(5), MCA (1993).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-407(5), MCA (1993). Where a nonwork-related incident satisfies the injury and accident definitions of section 39-71-119, MCA (1993), the incident constitutes a subsequent nonwork-related injury for purposes of section 39-71-407(5), MCA (1993).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-119, MCA (1993). Where a nonwork-related incident satisfies the injury and accident definitions of section 39-71-119, MCA (1993), the incident constitutes a subsequent nonwork-related injury for purposes of section 39-71-407(5), MCA (1993).

         ¶1 The trial in this matter was held in Kalispell, Montana, on August 24, 2004. The petitioner, David Leger, was present and represented by Mr. Darrell S. Worm. The respondent, Liberty Mutual Fire Insurance Company, was represented by Mr. Larry W. Jones.

         ¶2 Exhibits: Exhibits 1 through 12, being all of the exhibits offered, were admitted without objection.

         ¶3 Witnesses and Depositions: The petitioner was the sole witness at trial. However, the parties also submitted the depositions of David Leger, Jennifer Standley, Kathy Lawson, Dr. Bruce R. Belleville, Dr. Steven M. Martini, and Dr. Christopher H. Gill to the Court for its consideration.

         ¶4 Issues Presented: The sole issue presented for decision is whether the petitioner is entitled to additional temporary total disability and medical benefits with respect to a June 14, 1995 industrial injury.

         ¶5 Having considered the Pre Trial Order, the testimony presented at trial, the demeanor and credibility of the witness, 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 David Leger and I will refer to him hereinafter as "claimant."

         ¶7 The claimant was not a credible witness. I found his lack of memory of significant events, as reflected in both his deposition and his trial testimony, especially unconvincing. I was also unconvinced by his testimony that he suffered pain, which increased over time, after he returned to work following his 1995 injury.

         ¶8 On June 14, 1995, the claimant suffered a low-back injury while working for United Parcel Service (UPS). (Ex. 10.) According to the First Report of Injury or Illness, he stepped off the rear bumper of his delivery truck, hit a cart he had loaded, and twisted his lower back. (Id.)

         ¶9 The claimant was seen in the emergency room (ER) of the Kalispell Regional Medical Center on the same day as his injury, where he was diagnosed with "[l]ow back strain." (Ex. 4 at 21.) In the history taken in the ER, the claimant reported no prior back problems - which was not true. (Id.) He denied any radiating pain: "[p]atient denies radiation of pain stating it is right low back only." (Id.)

         ¶10 The claimant saw Dr. Douglas A. Nelson on June 19, 1995, and was thereafter treated by Dr. Loren Vranish, a family practitioner. (See Ex. 2 at 1-12.) Dr. Nelson's June 19th note indicates the claimant had "[p]ain localized to the right paraspinous muscles opposite approximately L3" with equivocal physical examination results for possible L5-S1 radiculopathy. (Id. at 12.) Lumbar x-rays showed mild degenerative changes at the L5-S1 disk. (Id.) Dr. Nelson's impression at that time was, "[a]cute low back strain with possibility of right L5 S1 radiculopathy." (Id.)

         ¶11 Dr. Vranish provided follow-up care over the next five weeks. His office notes indicate that claimant's primary complaint was back pain and spasm with minimal indication of any leg pain or radiculopathy. (Id. at 11.) His pain improved and on July 27, 1995, Dr. Vranish noted that he was back to ...


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