Submitted: November 7, 2013
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
JAMES JEREMIAH SHEA JUDGE
Petitioner suffered an industrial injury in November 2007. He then worked as a janitor from February to May of 2010. In 2011, he worked part-time for the employer with whom he suffered the November 2007 industrial injury. In January 2012, he suffered a non-work-related fall for which he sought chiropractic treatment. In July 2012, he filed an occupational disease claim, alleging that the janitorial work permanently aggravated his pre-existing condition. Respondent denied the claim, arguing that Petitioner's claim was untimely, that he was last injuriously exposed to the conditions which gave rise to his occupational disease at a subsequent employer, and that the non-work-related fall severed liability.
Petitioner has not met his burden of proving that the janitorial work he performed in 2010 is the major contributing cause of his condition. The Court did not reach the issue of the timeliness of his claim.
¶ 1 The trial in this matter occurred on November 7, 2013, at the Civic Center in Great Falls. Petitioner Larry Boland appeared and was represented by William O. Bronson. Kevin Braun represented Respondent Montana State Fund (State Fund).
¶ 2 Exhibits: I admitted Exhibits 1 through 6 and 8 through 14 without objection. I overruled Boland's objections to Exhibit 7 and admitted it into evidence.
¶ 3 Witnesses and Depositions: I admitted Boland's deposition into evidence. Boland was sworn and testified at trial.
¶ 4 Issues Presented: The parties present the following issues for resolution:
Issue One: Does Petitioner suffer from an occupational disease arising out of his employment with the employer?
Issue Two: Was the claim for occupational disease timely filed?
FINDINGS OF FACT
¶ 5 On or about July 25, 2012, Boland filed a First Report of Injury or Occupational Disease (FROI) with the Employment Relations Division of the Montana Department of Labor & Industry. Boland alleged an occupational disease arising out of his employment with St. Luke's Parish (St. Luke's) in Great Falls.
¶ 6 Boland testified at trial. I found Boland's testimony to be somewhat inconsistent. While I do not find Boland wholly incredible, in observing and evaluating his testimony it appeared to me that in many instances he answered questions in a manner designed more to put his claim in the most favorable light rather than being forthright. After comparing his testimony to the documentary evidence, I find that he minimized the work he performed for his cousin in 2011 as well as the effects of the January 2012 fall, and I question whether he disclosed certain pertinent information to his medical providers.
¶ 7 Prior to working for St. Luke's, Boland worked for his cousin Paul Boland performing water-well labor for approximately 15 years. Boland suffered an industrial injury in 2007 and was taken off work. Boland injured himself while lifting a roll of wire onto a trailer, causing pain in his back and neck.
¶ 8 After the November 26, 2007, injury, Boland treated with Richard A. Reynolds, D.C., for about a year. On November 20, 2008, Patrick E. Galvas, D.O., Ph.D., saw Boland for an initial evaluation including diagnosis, maximum medical improvement (MMI) assessment, impairment rating, and work restrictions. Dr. Galvas diagnosed Boland with a cervicothoracic strain, cervicogenetic headaches resolving, and thoraco-lumbar strain. Dr. Galvas opined that Boland was not at MMI and that he had not been appropriately imaged and diagnosed. Boland continued to treat with Dr. Galvas and Dr. Galvas' associates after this consultation.
¶ 9 On March 3, 2009, Dr. Galvas' associate noted that x-rays revealed a bridging osteophyte at L2-3 and an MRI revealed a wedging fracture at T12. On March 25, 2009, additional x-rays revealed a loss of height at either T9 or T10 with an intravertebral disk herniation. After additional treatment including steroid injections and prescription medication, Boland was prescribed a series of physical therapy sessions.
¶ 10 On July 14, 2009, Dr. Galvas found Boland to be at MMI and calculated an 8% whole person impairment rating for his thoracic, lumbar, and cervical injuries. On August 19, 2009, Dr. Galvas reviewed job analyses and approved pizza delivery driver and parking booth cashier, but disapproved pump installer/landscaper (presumably Boland's time-of-injury position) and cable assembler.
¶ 11 On August 24, 2009, an associate of Dr. Galvas saw Boland for a follow-up appointment. Boland had been treated and released for severe back pain at an emergency room a few days earlier. Boland reported that he had pain radiating into his buttocks, which was a new symptom. Boland was prescribed a series of physical therapy sessions.
¶ 12 On October 14, 2009, Boland reported that physical therapy had significantly reduced his pain, but he had used up his authorized sessions and now had decreased cervical range of motion. Dr. Galvas' ...