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Morrish v. Amtrust Ins. Co. of Kansas

Court of Workers Compensation of Montana

May 23, 2018

AMTRUST INS. CO. OF KANSAS Respondent/Insurer.

          Submitted: November 21, 2017



         Summary: 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.

         Held: 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 (Amtrust).

         ¶ 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 disease?
Issue Two: Did Morrish timely file his occupational disease claim pursuant to § 39-71-601(3), MCA?

         This 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 the evidence.[1]

         Medical History

         ¶ 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 used.

         ¶ 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 pain complaints.

         ¶ 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."[2] 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 manipulative treatment.

         ¶ 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 ...

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