Submitted: November 21, 2017
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE
Petitioner has had a long history of low-back pain and
sciatica, which, as it worsened, caused him to miss work.
Starting in 2012, Petitioner and his chiropractor discussed
that his work was causing his low-back pain and sciatica. In
April 2015, after sending him for x-rays, Petitioner's
chiropractor diagnosed him with degenerative disc disease at
L5-S1 and L4-5, for which Petitioner continued to treat. In
July 2016, Petitioner suffered acute low-back pain when he
reached down to pick something up at his home; he has been
unable to go back to work since. In August 2016,
Petitioner's medical doctor told him the major cause of
his low-back and radiating pain was likely his work as a
mechanic. Petitioner filed an OD claim several days later,
which Respondent denied. Respondent argues Petitioner does
not have a compensable OD. Alternatively, Respondent argues
Petitioner's claim is untimely because he did not file
his claim for more than a year after his chiropractor
diagnosed him with degenerative disc disease at L5-S1 and
L4-5. Petitioner contends he has a compensable OD because his
job duties were the major contributing cause of his
degenerative disc disease. He further contends his claim is
timely because he could only have known his degenerative disc
disease was caused by his work when his medical doctor told
him, and he filed his claim several days later.
The issue of whether Petitioner has a compensable OD is moot,
because even assuming that he does, Petitioner failed to
timely file his claim pursuant to § 39-71-601(3), MCA.
Petitioner knew his degenerative disc disease was caused by
his work in April 2015 because: Petitioner's chiropractor
told him as early as 2012 that Petitioner's work was
causing his low-back problems; he treated continuously, and
missed or was taken off work, for those problems through 2015
and beyond; and in April 2015, x-rays revealed degenerative
disc disease in his lumbar spine. Notwithstanding, Petitioner
filed his OD claim in August 2016, outside the one-year
statute of limitations.
1 The trial in this matter was held on November 7, 2017, in
Helena, Montana, and concluded on November 21, 2017, by
telephone. Petitioner William Morrish was present and
represented by Patrick T. Fox. Kelly M. Wills and Shea A.B.
Sammons represented Respondent Amtrust Ins. Co. of Kansas
2 Exhibits: The Court admitted Exhibits 1 through 6,
and 8 through 19 without objection. Exhibit 7 was reserved,
but never offered.
3 Witnesses and Depositions: This Court admitted the
depositions of Morrish, Gary J. Litle, DC, and Kathleen R.
Trapp, MD, into evidence. Morrish, Linda Morrish, and David
J. Hewitt, MD, MPH, DABT, were sworn and testified at trial.
4 Issues Presented: This Court rephrases the issues
set forth in the Pretrial Order as follows:
Issue One: Did Morrish suffer a compensable occupational
Issue Two: Did Morrish timely file his occupational disease
claim pursuant to § 39-71-601(3), MCA?
Court's disposition of Issue Two renders Issue One moot
because, even assuming that he suffers from a compensable
occupational disease (OD), Morrish failed to timely file his
claim, pursuant to § 39-71-601(3), MCA.
5 This Court finds the following facts by a preponderance of
6 Morrish was a credible witness, though not an entirely
reliable historian regarding his medical history as he could
not remember the dates on which he and his providers
discussed his diagnosis or the terminology his providers
7 Morrish has worked in a heavy-labor position, as a
mechanic, since the mid-1990s. He has long experienced back
pain and gone to a chiropractor for adjustments.
8 Morrish was not physically active outside of work and spent
most of his free time watching television.
9 He began treating with Dr. Litle in August 2005, shortly
after moving to Montana, for headaches, neck pain, mid-back
pain, lower-back pain, and sciatica.
10 Morrish was hired as a mechanic at what is now Broadwater
Ford around August 2006.
11 In late December 2006, Morrish saw Dr. Trapp, his
family-medicine physician, for "[p]ain all over."
She documented a history of, inter alia, lower-back
pain and chronic back problems, and that Morrish had noted
"physically demanding lifelong work ha[d] left him with
significant pain in many joints."
12 Between 2005 and 2016, Morrish treated with Dr. Litle
between 5 and 12 times per year. Morrish attributed his back
pain to the awkward positions he had to get into while
working, and heavy lifting. He typically responded well with
one or two chiropractic visits, and Dr. Litle released him
from care to return on an as-needed basis.
13 In January 2007, Dr. Trapp referred Morrish for a
rheumatologic evaluation with Carolyn Coyle, MD.
14 Morrish saw Dr. Coyle on August 1, 2007. Dr. Coyle ordered
additional testing, including a pelvic x-ray, which showed
moderate degenerative changes in L5-S1, which Dr. Coyle
characterized as "[p]rimary generalized osteoarthritis
with some premature degenerative dis[c] disease [in the]
lower lumbosacral spine." Dr. Coyle reviewed the results
with Morrish that September.
15 In October 2007, Morrish began treatment with Dr. Trapp
for Type II Diabetes. Morrish continued seeing Dr. Trapp for
diabetes and general medical issues, and Dr. Litle for his
16 Over time, Morrish's low-back problems and sciatica
gradually worsened, and he had to miss several days of work
because of back pain. Starting in 2012, Dr. Litle and Morrish
began having discussions about Morrish's ability to
continue working as a mechanic due to the problems he was
having with his back. They discussed that working on cement
and getting into awkward positions were contributing factors
to his back problems. Dr. Litle told Morrish that his work as
a mechanic was causing him to suffer degenerative changes in
his low back.
17 Observing that "Morrish's lower back and sciatic
episodes [were becoming] more acute and problematic, "
prompting him to "miss several days of work as a result,
" Dr. Litle assessed him, on April 9, 2015, as possibly
having degenerative joint disease or degenerative disc
disease and ordered lumber spine x-rays to determine which.
18 Morrish had the x-rays taken on April 16, 2015. The
radiologist noted, inter alia, "severe
narrowing of the L5-S1 interspace, " "moderate
narrowing of the L4-5 interspace, " and "facet
arthropathy at L4-5 and L5-S1." The radiologist
diagnosed "[l]ower lumbar spondylosis"; i.e.,
"degenerative disc disease resulting in compression of
the nerve roots." Dr. Litle explained that the x-rays
"did reveal advanced degenerative disc disease at
L5/sacral level and mild changes at L4/5 level, either of
which may be responsible for his sciatic complaints."
19 Although Morrish could not remember the
"terminology" that Dr. Litle used when they
discussed his back condition and could not recall if Dr.
Litle used the term "spondylosis, " at
Morrish's next visit on April 20, 2015, Dr. Litle
discussed the x-ray results with him, indicating that he had
degenerative disc disease of the lumbar spine and documenting
that "DDD L5 is noted" on the x-ray report.
20 Morrish continued to treat with Dr. Litle. As was his
custom, Dr. Litle told Morrish, after each of his next ten
visits, to follow-up as needed.
21 On Sunday, July 31, 2016, Morrish was using a chop saw to
cut pieces of old wood in his home workshop. When he bent
over to pick up some kindling, he experienced immediate,
acute, and debilitating pain in his right-low back. The pain
was more severe than he had ever experienced before.
22 On Monday, August 1, 2016, Morrish went to see Dr. Litle,
presenting with acute lower-back pain and spasm, pain into
his buttocks, pain with sitting, and difficulty standing
erect. Dr. Litle told him the incident with the kindling was
probably just the proverbial "straw that broke the
camel's back" - meaning that, in Dr. Litle's
judgment, the main cause of Morrish's back condition,
regardless of the immediate precursor to his disability, was
his long history of work as a mechanic. Dr. Litle did some
physiotherapy modalities, and some massage and ice packs, but
he deemed Morrish's condition too acute for any
23 Morrish did not go to work that day, and indeed, never
returned to his job at Broadwater Ford.
24 Morrish returned to see Dr. Litle on August 4, 2016. He
continued to have lower-back pain, though not as much spasm.
Dr. Litle referred Morrish to Dr. Trapp for medication to
help manage his back ...