Lakey v. Kerrian S , 228 Mont. 139 ( 1987 )

No. 8 6 - 5 9 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
CAROL LAKEY,
Claimant and Respondent,
-VS-
KERRIAN'S d/b/a HERBERGERS, Employer,
and
SAFECO INSURANCE COMPANY,
Defendant and Appellant.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; Lon Holden,
Great Falls, Montana
For Respondent:
Hartelius & Ferguson; Channing Hartelius, Great Falls,
Montana
Utick & Grosfield; Norman H. Grosfield, Helena, Montana
Submitted on Briefs: May 22, 1 9 8 7
Decided: August 18, 1987
Filed: AuG 1 8 1987
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court
Safeco Insurance Company appeals a Workers' Compensation
Court order which awarded temporary total disability benefits
to the claimant, Carol Lakey. The two issues on appeal are
(1) whether substantial evidence supports the lower court's
finding that claimant's knee condition is compensable, and
(2) whether substantial evidence supports the court's finding
that claimant had not reached maximum healing. We affirm.
In July 1983, while working as a shoe salesperson at
Herbergers Department Store in Great Falls, claimant suffered
an injury to her right knee. The injury arose out of and in
the course of claimant's employment at Herbergers. She went
to the Deaconess Hospital Emergency Room where hospital
personnel took X-rays, prescribed an anti-inflammatory drug
and recommended that claimant see an orthopedic surgeon.
In August 1983, orthopedic surgeon Dr. John Avery
examined claimant's knee and diagnosed the injury as a
probable torn medial meniscus. On August 16, 1983, Dr. Avery
performed a diagnostic and operative arthroscopy on
claimant's right knee. At that time, he found a torn medial
meniscus (cartilage) and performed a partial meniscectomy on
the knee. Claimant testified at trial that after surgery the
pain in her knee decreased for four or five months and then
started getting worse. She also testified that during the
six months after surgery, the pain did not disappear
completely. Dr. Avery saw claimant again in October 1983 and
noted that her knee was essentially normal except for mild
medial joint-line pain.
Dr. Avery next saw claimant in January 1985 when she
went to him complaining of increased pain in her right knee.
Dr. Avery again performed a diagnostic arthroscopy of
claimant's knee. He did not find the recurrent tear of the
medial meniscus which he had suspected, but he did make a
diagnosis of chondromalacia (a form of arthritis) of the
right knee. Following the January 1985 arthroscopy, claimant
continued to experience some pain in her right knee. She
returned to work at Herbergers in March 1985 but experienced
difficulty performing the tasks required of her job. Dr.
Avery testified that claimant's work, which involved kneeling
and squatting, aggravated the chondromalacia to some extent.
In March 1985, Dr. Avery calculated that under the American
Medical Association guidelines and due to the meniscectomy on
the right knee, claimant had a 10% partial permanent
impairment of the right lower extremity which converted to a
4% partial permanent impairment of the whole person. In June
1985, apparently for the first time, Dr. Avery diagnosed
chondrocalcinosis in claimant's right knee. He stated that
there is no permanent impairment in relation to either
diagnosis of chondromalacia or chondrocalcinosis. The doctor
also opined that both conditions predated the July 1983
injury. In November 1985, claimant resigned her job with
Herbergers because of the pain in her right knee.
Although the insurer had paid temporary total disability
benefits to claimant at times following her injury, a dispute
developed between the insurer and claimant as to the extent
of the former's liability. The claimant filed a petition
with the Workers' Compensation Court to resolve the dispute
and her case was heard in April 1986. The court found that
claimant was entitled to temporary total disability benefits
and this appeal followed.
The first issue is whether substantial evidence supports
the lower court's finding that claimant's knee condition is
compensable. This Court will not substitute its judgment for
that of the Workers' Compensation Court where there is
substantial evidence to support that court's findings of
fact. Bremer v. Buerkle (Mont. 1986), 727 P.2d 529, 43
St.Rep. 1942. The law in Montana is that,
when claimants have preexisting
conditions, that combined with their
industrial accidents produce their
disability, acceptabie proof of
disability is proof - -it was medical5
that -
possible - r- industrial accident to
f o an
aggravate a preexisting condition.
(Emphasis adzed. )
Tocco v. City of Great Falls (Mont. 1986), 714 p.2d 160, 164,
43 St.Rep. 310, 315; citing Viets v. Sweet Grass County
(1978), 178 Mont. 337, 583 P.2d 1070.
The insurer insists that there is no evidence that
claimant's disabling pain in 1986 resulted from the July 1983
accident. The insurer relies heavily on Dr. Avery's
statement that claimant's pain "apparently" did resolve after
the August 1983 meniscectomy. We find little merit in these
arguments. In this case, Dr. Avery repeatedly stated that it
was possible that claimant's July 1983 accident aggravated
her preexisting conditions of chondromalacia and
chondrocalcinosis. At one point, the doctor even stated that
it was probable that the injury aggravated the two
conditions. He explained that "the tear of the medial
meniscus was torn at that time, which set up an irritative
phenomena within the knee, and irritation set off or flared
up these conditions, particularly the chondromalacia, I
think." Further, there is abundant evidence in the record
that the pain in claimant's knees, which prevents her from
working as a shoe salesperson, is caused by chondromalacia
and/or chondrocalcinosis. Dr. Avery agreed that the pain in
this patient related to those two conditions. Finally,
claimant stated that prior to the injury she had no problems
with her knees and that since the injury, the pain has never
gone away completely. Therefore, we affirm the decision that
the claimant's present knee condition is compensable.
The second issue is whether substantial evidence
supports the lower court's decision that claimant had not
reached maximum healing. The insurer argues that under
S 39-71-116 (19), MCA, claimant cannot have a temporary total
disability because her injury had reached its maximum point
of healing. The lower court disagreed and found that maximum
healing had not been reached. The court correctly pointed
out that Dr. Avery did not testify that maximum healing had
been reached. Moreover, in April 1986, claimant testified
that since August 1983, the pain in her knee has never gone
away and has, in fact, gotten worse. We uphold the court's
determination that claimant had not reached maximum healing.
Af firmed.