Submitted: October 15, 2013
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
JAMES JEREMIAH SHEA JUDGE
After Respondent denied further benefits for Petitioner's accepted occupational disease claim, Petitioner petitioned the Court, arguing that her ongoing problems with her left elbow are caused by her occupational disease and that Respondent cannot now deny liability. Petitioner further argued that Respondent unreasonably denied her further benefits.
Petitioner did not suffer a new injury which would sever Respondent's liability under § 39-71-407(5), MCA. It was unreasonable for Respondent to refuse to pay further benefits to Petitioner on this theory without any evidence to support its position and Petitioner is therefore entitled to a penalty and her attorney fees. Respondent has not proven that Petitioner's current elbow condition is unrelated to her occupational disease claim and therefore it remains liable for her condition.
¶ 1 The trial in this matter occurred on October 15, 2013, at the Civic Center in Great
Falls. Petitioner Julie Engle was present and represented by J. Kim Schulke. Kelly M. Wills represented Respondent Hartford Underwriters Ins. Co. (Hartford).
¶ 2 Exhibits: I admitted Exhibits 1 through 11, 13, and 14 without objection. Engle withdrew Exhibit 12. Hartford withdrew Exhibit 15. I admitted Exhibits 16 and 17 over Engle's objections.
¶ 3 Witnesses and Depositions: I admitted Engle's deposition and it can be considered part of the record. Engle was sworn and testified.
¶ 4 Engle's counsel stated that on October 14, 2013, she received a copy of Engle's unemployment claims file from Hartford's counsel. Engle objected to the introduction of those records due to the untimely exchange. I reserved ruling on Engle's objection until such time as Hartford would attempt to introduce those records at trial. Ultimately, I allowed Hartford to question Engle regarding her recollection of her application for unemployment benefits, and Hartford did not move to admit the records into evidence.
¶ 5 Issues Presented: The parties present the following issues for resolution:
Issue One: Whether the non-work-related fall Engle experienced on August 11, 2011, was a new injury such that Hartford's liability was terminated in accordance with § 39-71-407(5), MCA (2003);
Issue Two: Whether Hartford has been unreasonable in the adjustment of this claim such that the Court should impose a 20% penalty and award Engle her attorney fees;
Issue Three: Whether Engle suffered a non-work-related injury to her left elbow such that Hartford is not liable for any compensation or medical benefits caused by the subsequent non-work-related injury pursuant to § 39-71-407(5), MCA (2003); and
Issue Four: Whether any ongoing problems Engle has with her left elbow are a consequence of the 2005 occupational disease claim.
FINDINGS OF FACT
¶ 6 Engle testified at trial. I found her to be a credible witness.
¶ 7 In approximately 1973, at about the age of 12, Engle was involved in an accident with a horse. She sustained a fracture of her ulna and the dislocation of her left elbow. The break was set and approximately one year later a plastic head (Silastic prosthesis/implant) was placed on her radius. Petitioner is now 52 years old.
¶ 8 On May 15, 1996, Engle sought treatment for her right elbow with Gregory S. Tierney, M.D. She reported that she had been having right-elbow pain for about four months and that it started while she was performing her job duties as a waitress. On August 21, 1996, she also began to complain of left-wrist pain. On September 9, 1996, Dr. Tierney referred Engle to Charles D. Jennings, M.D., who continued treating her. On February 20, 1997, Engle underwent surgery on both arms, including a shortening of her left ulna. On March 17, 1998, she underwent an additional surgery to remove hardware which had been retained during the previous surgery.
¶ 9 On May 24, 1999, Engle sought further medical treatment, complaining of numbness and tingling in her hands and fingers as well as pain in her left shoulder. Dr. Jennings opined that she had bilateral median and ulnar neuropathy. Engle subsequently underwent conservative treatment including splinting at night, but surgery remained a future possibility.
¶ 10 On June 26, 2001, Engle underwent a carpal tunnel release surgery on her left hand. Engle testified that to the best of her recollection, she was subsequently released to return to work without permanent restrictions.
¶ 11 From August 2001 through July 2005, Engle worked as a waitress and also worked as a tax advisor and instructor for H&R Block. Near the end of April 2004, Engle also began to work part-time as a dog groomer for Mike Norton, D.V.M., at Best Friends Animal Hospital (Best Friends). Engle worked six to eight hours per day, two days per week, bathing, drying, and brushing dogs.
¶ 12 On July 14, 2005, Engle returned to see Dr. Jennings. She complained of increased pain in her left elbow and wrist. Dr. Jennings noted that Engle reported that it hurt to hold a plate with her left hand, and that she had also been working part-time as a groomer. Engle stated that her grooming job duties significantly aggravated her symptoms and that she had resigned from the dog-grooming job the previous month. Dr. Jennings examined Engle and reviewed x-rays of her forearm. He did not see any significant progression of the proximal migration of her radius, but opined that her symptoms were probably due to progressive degenerative changes in the radiocapitellar articulation. Dr. Jennings did not believe surgery would be beneficial at that time.
¶ 13 On July 14, 2005, Engle filled out a First Report of Injury and Occupational Disease in which she alleged that she had a strain or injury to her elbow on May 26, 2005, while working part-time at Best Friends.
¶ 14 On July 26, 2005, Dr. Jennings again saw Engle for her left-elbow condition. He took new radiographs and found that the Silastic head of Engle's radial head prosthesis had become displaced. However, he opined that this was not the source of her symptoms. He expressed concern that Engle had lost some grip strength. He fitted her with a tennis elbow brace and noted that he would consider surgical exploration and removal of the Silastic implant, but he did not believe aggressive treatment was warranted.
¶ 15 On August 30, 2005, Engle reported to Dr. Jennings that she had continuing pain and weakness in her forearm and that she was unable to lift or grip much with the left hand. Dr. Jennings noted:
[S]he emphatically states that she was doing very well until approximately March of this year when she began to notice pain in the elbow during the period of time that she was dog grooming. She felt that the dog grooming put a lot of excessive strain on the elbow and that this is a significant factor in causing the deterioration.
¶ 16 On October 11, 2005, Dr. Jennings wrote a letter to Linda Slavik, Hartford's claims adjuster, in which he summarized Engle's history of elbow problems and opined, "It is my feeling that her current status is a consequence of a preexisting condition which significantly deteriorated as a result of her dog grooming activities." Dr. Jennings recommended that Engle undergo surgery to remove the Silastic implant, noting that while he was not positive that it would alleviate her symptoms, he found that Engle was very motivated to return to work and that the surgery could help her to do so.
¶ 17 On January 18, 2006, Robert J. Seim, M.D., evaluated Engle for an independent medical examination (IME). He reviewed her medical history and x-rays and opined that Engle had suffered a failure of her Silastic prosthesis secondary to wear over a long time, but accelerated by repetitive motion of pronation and supination as required for scrubbing dogs. Dr. Seim opined that Engle could return to work in a light-duty capacity or could perform medium-duty tasks that did not require stress or continuous use of her left arm. He further found documentary evidence to establish a causal relationship between her activities and the problem with her elbow. He opined that while Engle had a preexisting condition, a significant material change in her condition occurred as a result of her occupational duties. He noted that although Engle worked both as a waitress and a dog groomer, the job duties she performed as a waitress did not cause her problems in the years prior to her accepting the dog-grooming position. He further noted that the motions which she performed as a dog groomer were the motions which would aggravate and cause deterioration of the radial head area. Dr. Seim noted that while Engle's condition was to some degree a natural progression of her underlying condition, it was accelerated by the dog grooming.
¶ 18 On February 6, 2006, Slavik wrote to Engle and reported that Dr. Seim had found a causal connection between Engle's current complaints and Engle's ...