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Pate v. Montana State Fund

Court of Workers Compensation of Montana

January 18, 2019

EVERETT PATE Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          Submitted: May 15, 2018

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

          DAVID M. SANDLER JUDGE.

         Summary: Petitioner asserts that he injured his shoulder in an industrial accident in which a rung on a ladder broke, causing him to fall down and backwards, partially into a crawlspace. Respondent denied liability, at first because Petitioner's medical providers did not identify any objective medical evidence of a shoulder injury. Respondent then relied on the opinion of its IME physician, who determined that while there is objective medical evidence of a shoulder injury or disease, there is no mechanism of a shoulder injury and that the time between the accident and the onset of Petitioner's shoulder pain is too great to support a causal relationship.

         Held: Petitioner injured his left shoulder in his industrial accident. Respondent's IME physician failed to take an accurate history and, as a result, did not understand that the Petitioner used his arms to arrest his backwards fall. Respondent's IME physician also did not understand that Petitioner reported shoulder pain immediately after his fall and suffered shoulder pain again within two weeks of his fall. Thus, this Court gave more weight to the evidence from the orthopedist treating Petitioner's shoulder, which is sufficient to prove on a more-probable-than-not basis that Petitioner injured his shoulder in the fall.

         ¶ 1 The trial in this matter was held on May 3, 2018, in Great Falls. Petitioner Everett Pate was present and represented by Richard J. Martin. Respondent Montana State Fund (State Fund) was represented by Mark D. Meyer.

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 20. This Court overruled State Fund's objection to a portion of Exhibit 8.

         ¶ 3 Witnesses and Depositions: This Court admitted the depositions of Everett Pate, Margaret Cook-Shimanek, MD, Michael Bryant, DO, and Terrance J. Sweeney, MD, into evidence. Everett Pate, Caleb Sunwall, Brenna Brewer, Daneen Pate, Todd Pate, and Jennifer Papini-Chapla were sworn and testified at trial.

         ¶ 4 Issues Presented: The Pretrial Order sets forth the following issues:

Issue One: Whether Petitioner injured his left shoulder during the accident?
Issue Two: Whether Respondent was unreasonable for not accepting the left shoulder as part of this claim?
Issue Three: If Respondent is found to be unreasonable for not accepting liability for the left shoulder, then whether a penalty and attorney fees should be awarded to the Petitioner in this matter?

         FINDINGS OF FACT

         ¶ 5 The following facts are established by a preponderance of the evidence.

         ¶ 6 Prior to July 9, 2015, Pate did not have any problems with his left shoulder. He worked as an electrician for Liberty Electric, which required him to frequently use his arms to work above his head. He was active outside of work, including hunting, restoring classic cars, four-wheeling, and cutting firewood with a chainsaw. He also worked around his house, including mowing, running the weed eater, and shoveling snow.

         ¶ 7 On the night of July 9, 2015, Pate was working at the medical clinic at Malmstrom Air Force Base. He was in the crawlspace, which was muddy. Thus, he radioed Brenna Brewer, a co-worker, and asked her to bring garbage bags to the crawlspace opening to put on his feet. Brewer and a housekeeper at the medical clinic took garbage bags to the crawlspace opening and waited for Pate.

         ¶ 8 To exit the crawl space, Pate started climbing up a six-foot, fixed welded ladder to the opening, which was approximately 36 inches by 42 inches. Pate reached the top rung, which was a few inches below floor level. After he lifted his right foot off the ladder to step up to the floor, the top rung broke, causing Pate to fall down and slightly backwards. Pate instinctively threw his arms away from his body. The back of Pate's thighs struck the next rung of the ladder, stopping his legs. His torso continued to fall backwards. As Pate fell backwards, his thighs slid back on the rung until his bent knees caught on the rung. His torso continued to fall backwards until he grasped the edge of the crawl space opening, quickly stopping his backwards fall with his head slightly below floor level. Pate scooted his legs forward to get the rung off the back of his knees, as he felt pain in that area. As he got to the area where his thighs initially hit the rung, he felt even more pain. Thus, Pate scooted farther forward and pulled himself into a curled position, holding himself steady with his arms on the floor at the exit of the crawl space.

         ¶ 9 Brewer witnessed Pate's fall and confirmed at trial that he arrested his backwards fall with his arms. Recognizing that Pate was in pain and could not get himself out, Brewer ran to get help. She returned with co-worker Caleb Sunwall, who grabbed Pate's right arm and attempted to lift Pate out of the crawlspace by jerking him. Pate realized that Sunwall's efforts were fruitless and told him to wait until more help arrived. At the same time Brewer ran to get help, the housekeeper did the same, and eventually returned with Airman Mora. Airman Mora and Sunwall lifted Pate out of the crawlspace by grabbing him underneath his arms.

         ¶ 10 After Pate was out of the crawlspace, he leaned against the wall. Mike Petzak, the general contractor's site superintendent and safety officer, brought a chair. Airman Mora retrieved a first aid kit and gave Pate Ibuprofen. Pate had scratches and bruises on his legs and felt pain in his legs, back, knees, and shoulders.

         ¶ 11 Kevin Koehmstedt, who was in charge of Liberty Electric's night crew, arrived at the scene with paperwork to document the accident and injuries. Koehmstedt and Petzak asked Pate the questions and filled out the paperwork.

         ¶ 12 Petzak completed a "Loss/Near Loss Incident Investigation Form." Petzak wrote:

Everett was coming up from the crawlspace by climbing up a fixed welded ladder when the top rung weld broke. Everett fell on the next fixed rung on the back of his legs while catching himself with his outstretched arms at the surface of the opening.

         ¶ 13 Koehmstedt filled out an "Accident Report," which recounts the accident and states that Pate's injured body parts were his "legs, shoulders, back, knee possibly."

         ¶ 14 Koehmstedt also filled out a First Report of Injury or Occupational Disease, on State Fund's standard form. In the box for identifying the parts of the body that were injured, Koehmstedt wrote, "knee/back/shoulder."

         ¶ 15 On the night of the accident, Pate sought treatment at the emergency room. Pate described the areas of acute pain as his thighs, knees, and back. The attending physician prescribed pain medication, took Pate off work two days, and imposed a 15-pound lifting restriction.

         ¶ 16 When he came home from the hospital during the early morning hours of July 10, 2015, Pate told his wife he had significant pain from his neck to his legs. Pate was moving slowly and wincing. He tried to sleep but could not lay on his left side and spent the time tossing and turning.

         ¶ 17 On the afternoon of July 10, 2015, Pate saw Terrance Sweeney, MD, who practices at an urgent care clinic. Pate did not mention shoulder pain. Dr. Sweeney diagnosed leg contusions and a thoracic spine strain. Dr. Sweeney recommended pain medication, ice, and rest.

         ¶ 18 On July 11, 2015, State Fund mailed another First Report of Injury and Occupational Disease to Pate. This version of the First Report of Injury and Occupational Disease does not mention a shoulder injury; rather, it only states that Pate suffered sprain or strain to his legs. Pate signed the First Report of Injury and Occupational Disease and sent it back to State Fund.

         ¶ 19 On July 13, 2015, Pate returned to the urgent care clinic and saw Michael Hall, PA. Pate reported pain in his scapular region, mid back, and legs. Hall's impression was myofascial pain; i.e., muscular and tendon pain. Hall released Pate to return to work with a 20-pound lifting restriction due to his "mid back strain."

         ¶ 20 Pate returned to work on July 14, 2015, but, due to his pain and lifting restriction, was only able to move a ladder for two interns working under his supervision.

         ¶ 21 Pate returned to see Dr. Terrance Sweeney on July 18, 2015. Dr. Sweeney noted, "patient continues to have a significant amount of discomfort in his upper back area with muscle spasm." Dr. Sweeney did not note any complaint of shoulder pain. Dr. Sweeney continued Pate's work restrictions. Dr. Sweeny also prescribed an anti-inflammatory and a pain medication. Dr. Sweeney also recommended massage therapy.

         ¶ 22 During the week of July 23, 2015, Pate felt a stabbing pain in his left shoulder joint when he raised his left arm to point towards specific ceiling tiles while instructing the interns. This was the first time Pate had tried to use his shoulder in this motion since the accident.

         ¶ 23 On July 29, 2015, Pate saw April M. Posey for massage therapy. Pate reported pain in his "upper back, left shoulder, legs, and feet," with his pain in his back and shoulder at nine on the pain scale. Pate saw Posey 13 times over the next five weeks, each time complaining of left shoulder pain, along with back and leg pain.[1] Posey provided massage therapy from Pate's neck to his feet, focusing on his back and legs.

         ¶ 24 In late August 2015, claims examiner Jennifer Papini-Chapla took Pate's statement. Pate explained the accident to Papini-Chapla, including that he used his arms to arrest his fall. Papini-Chapla asked Pate an open-ended question about what body parts were injured. Pate did not mention his left shoulder.

         ¶ 25 On August 29, 2015, Pate returned to the urgent care clinic and saw Dr. Terrance Sweeney, complaining of persistent mid- and low-back pain. Pate did not mention shoulder pain. Dr. Sweeney prescribed a pain medication and a muscle relaxant. Dr. Sweeney continued Pate's lifting restriction of 15-20 pounds. Finally, Dr. Sweeney referred Pate to pain management.

         ¶ 26 On September 28, 2015, Pate returned to the urgent care clinic, complaining of "pain in his left shoulder, mid and upper back." Hall refilled Pate's prescriptions and continued his work restrictions.

         ¶ 27 On September 29, 2015, State Fund accepted Pate's claim for the thoracic spine strain and posterior bilateral thigh contusions. However, State Fund denied liability for Pate's shoulder and knee pain, explaining: "the medical reports available [do] not support injury to these body parts."

         ¶ 28 Pate again saw Dr. Terrance Sweeney on October 3, 2015, complaining of mid-and low-back pain. Dr. Sweeney referred Pate to Craig K. Sweeney, DO, for pain management.

         ¶ 29 On October 9, 2015, Pate filled out a form for the pain management department at the Great Falls Clinic. Pate wrote that his main source of pain ...


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