Submitted: May 15, 2018
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
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.
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?
5 The following facts are established by a preponderance of
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
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
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
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
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
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
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. 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
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 ...