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Dvorak v. Montana State Fund

Court of Workers Compensation of Montana

July 30, 2013

DIANNE DVORAK, Petitioner and Appellant,
MONTANA STATE FUND, Respondent and Appellee.

Submitted on Briefs: May 1, 2013.

APPEAL FROM: Montana Workers' Compensation Court, WCC No. 2011-2793 Honorable James Jeremiah Shea, Presiding Judge.

For Appellant: William P. Joyce, Joyce, Johnston & MacDonald, Butte, Montana.

For Appellee: William D. Blackaby, Special Assistant Attorney General, Montana State Fund, Helena, Montana.


Patricia O. Cotter, Justice.

¶1 At some point, Dianne Dvorak contracted an occupational disease arising from her employment with Wheat Montana. She first sought medical treatment in 2006 and periodically thereafter until 2011 when her doctor recommended that she leave her employment because it was worsening her condition. In May 2011, Dvorak initiated a workers' compensation claim. Montana State Fund (State Fund) denied her claim as untimely filed. The Workers' Compensation Court granted summary judgment in favor of State Fund. Dvorak appeals. We reverse and remand.


¶2 A restatement of the issue is:

¶3 Did the Workers' Compensation Court err in granting summary judgment to State Fund after concluding that Dvorak's claim for occupational disease benefits was barred by the statute of limitations?


¶4 Dianne Dvorak began working at Wheat Montana in Three Forks, Montana, in 2002. She was 52 years old at the time. Initially, she worked in the deli but within six months was transferred to the kitchen, working primarily as a sandwich maker. She frequently worked 10-hour shifts and was on her feet most of the time. On February 28, 2006, Dvorak went to Dr. Terry Reiff, an osteopathic doctor who had been her primary care physician since 1995. At this visit, she complained of headaches and pain in her right shoulder, neck, upper back and ribs. She told Reiff that she had to look upwards and lift her arms above her head multiple times per day at work in order to reach for the bread to make sandwiches. She said the movement had begun to cause her "quite a bit of back pain." Reiff subsequently prescribed Tylenol 3 for the pain which Dvorak refilled regularly through 2011. He also performed cervical and thoracic manipulation which reduced the restrictions and diminished the pain. Dvorak saw Reiff again in November 2007. This visit was for a routine checkup and not for work-related pain. She stated that she occasionally used the Tylenol 3 for pain but did not report pain at that time.

¶5 On December 10, 2007, Dvorak saw Reiff for back pain after she fell on her back while putting up Christmas lights. Reiff performed manipulation of her upper and lower spine and relieved some of the pain. He prescribed anti-inflammatory medications as well. The following week, Dvorak reported to Reiff that she experienced severe right hip and sciatic pain after a 10-hour work shift. Reiff again performed a manipulation on the affected area and injected medications to alleviate the pain. Dvorak continued taking and refilling the various medications Reiff had prescribed, including Tylenol 3.

¶6 Dvorak saw Reiff again on January 20, 2009. She did not complain of back or shoulder pain at this appointment but did report, when discussing her medications, that in addition to the other unrelated medications she took regularly, she took one Tylenol 3 per day. At an August 4, 2009 appointment, Dvorak told Reiff that the repetitive motion at work was again causing pain in her back and shoulders. She said that taking one Tylenol 3 every day helped her get through her long work shifts. At her physical exam with Reiff on October 19, 2010, Dvorak reported again that she continued to take a daily Tylenol 3 but otherwise did not report any acute problems with her neck and back.

¶7 On December 13, 2010, Dvorak saw Reiff and reported that she was in "severe pain in the upper thoracic area" on her right side. Reiff performed manipulation and was able to identify acute pain trigger points in Dvorak's thoracic spine for the first time. He treated those points with injections which relieved much of the pain. This was the first occasion upon which Reiff concluded that Dvorak had a site-specific pathological condition that was not going to resolve with treatment and that her work was placing stress on her upper spine to the extent that it was incapacitating her.

¶8 Dvorak returned to Reiff in March 2011 with intense pain in her right shoulder blade. Again, Reiff manipulated the area and injected the trigger point, providing almost immediate relief. In April 2011, Dvorak saw Reiff twice with continued pain in her back and shoulder. Again, she received manipulation and injections. Also, in light of Dvorak's recent intense localized symptoms, Reiff took spinal x-rays for the first time. On May 3, 2011, with Reiff's assistance, Dvorak completed a Blue Cross/Blue Shield of Montana form indicating that she had seen Reiff on April 12, 2011, for "a work aggravated injury of T6-T7 facet & rib articulation. First began 2/28/06."

¶9 On May 6, 2011, she reported to Reiff that she was in "severe pain in her back." She stated she was unable to work more than two hours without pain medication. Reiff referred her to Dr. Pyette, an orthopedic specialist, and told her she could not work until after she saw Pyette and Pyette had evaluated Dvorak's condition. On this same day, Dvorak filed a First Report of Injury with Wheat Montana reporting the pain she was experiencing in her spine, shoulder and ribs. Notably, Dvorak did not state a claim for benefits for any conditions suffered or treatment incurred prior to December 2010.

¶10 On May 17, 2011, Dvorak saw Pyette who recommended a cervical spine MRI. His impressions were (1) thoracic strain/over use [sic] secondary to industrial injury, and (2) possible exacerbation of cervical spondylolytic myelopathy secondary to industrial injury. On June 20, 2011, State Fund denied Dvorak's claim asserting that she had not filed it within the time allotted under § ...

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