Moore v. State Fund ( 1995 )

NO. 95-218
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
PAULA MOORE,
Petitioner and Respondent,
v.
STATE COMPENSATIONINSURANCE FUND,
Respondent and Appellant,
and Insurer
for
DAVIS MAINTENANCE COMPANY,
Employer.
APPEAL FROM: Workers' Compensation Court,
The Honorable Mike McCarter, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Charles G. Adams, Legal Counsel,
State Compensation Insurance Fund,
Helena, Montana
For Respondent:
Thomas A. Budewitz, Attorney at Law,
Helena, Montana
Filed
Justice Terry N. Trieweiler delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Paula Moore filed a petition for hearing in the Workers'
Compensation Court for the State of Montana in which she sought
payment of medical benefits by the State Compensation Insurance
Fund for an injury which she claimed was work related. After a
hearing, the Workers' Compensation Court held that Moore was
entitled to medical benefits for her injury. The State Fund
appeals from this determination. We affirm the findings,
conclusions, and judgment of the Workers' Compensation Court.
The issue on appeal is:
Did the Workers' Compensation Court err when it found that
Moore's back injury is work related and concluded that she is
entitled to continued medical benefits for the treatment of that
injury?
FACTUAL BACKGROUND
On January 8, 1993, Paula Moore injured her lower back and
neck while throwing bags of garbage into a garbage bin at work. At
the time of the accident, Moore was employed as a janitor with
Lonnie Davis Maintenance Company (Davis). Davis was insured by the
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State Fund, which accepted liability and paid wage loss benefits to
Moore from February 3, 1993 through July 20, 1993.
Moore was initially treated for her injuries by Dr. William
Batey, who diagnosed her condition as lumbar strain and cervical
strain. Dr. Batey prescribed Relafen (an anti-inflammatory drug),
physical therapy, and no work for one week. When her condition did
not improve by February 1993, however, Dr. Batey referred Moore to
Dr. Allen Weinert, a physiatrist, for a further evaluation.
Dr. Weinert first examined Moore on April 9, 1993. He
recommended continued physical therapy, and prescribed Naprosyn (an
anti-inflammatory drug) and Flexeril (a muscle relaxant). He also
approved her return to work in a "modified janitorial position."
Moore arranged a modified position with Davis in which she
could slowly increase her time at work to five hours per day.
Before she could return to work, however, Moore experienced a
flare-up of her condition. On April 13, 1993, Dr. Weinert
determined that Moore's return to work should be postponed for one
week. He also concluded that a job as bartender, which Moore had
performed as a second job before her injury, was within her
capabilities.
Dr. Weinert examined Moore again on May 11, 1993, and noted
that her symptoms were essentially unchanged. Dr. Weinert renewed
Moore's prescriptions and encouraged her to participate in physical
therapy. Dr. Weinert noted that Davis had "decided not to take
[Moore] back," and released her to work as a waitress for four
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hours per day. As of May 13, 1993, Dr Weinert did not feel that
Moore had reached maximum medical improvement.
In May, Moore returned to her job as a waitress, where she
worked four to six hours per week. At trial, she reported that she
continued to suffer back pain during that time. Moore was
terminated from her employment in May or June 1993. She has not
been employed since.
Moore next saw Dr. Weinert on July 26, 1993. She reported at
that time that her back pain was much improved, although she still
experienced some occasional low back pain. Dr. Weinert concluded
that Moore had reached maximum medical improvement and that there
was no basis for a permanent impairment rating. He released Moore
to return to her former jobs as janitor and bartender.
On August 26, 1993, Moore returned to Dr. Weinert with
complaints of increased low back pain, and pain and stiffness in
the neck region. Dr. Weinert renewed her prescription for Relafen,
and recommended physical therapy and lumbar stabilization
exercises.
Moore returned to Dr. Weinert on September 20, 1993, for a
follow-up appointment. She reported an acute flare-up in her
condition following a day spent cleaning a trailer home before she
moved into it. Dr. Weinert diagnosed "chronic musculoligamentous
low back pain." He refilled her Relafen prescription and
emphasized the importance of completing her physical therapy.
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Dr. Weinert wrote to the State Fund on September 20, 1993.
Responding to questions raised by the State Fund, he said:
Ms. Moore re-exacerbated her musculoligamentous low back
pain in early August. . . . I do feel that her condition
is temporary, however, she has not received the treatment
that was recommended at this time and has re-aggravated
her back one week ago when moving into her trailer.
Prognostically I feel Ms. Moore's condition should
resolve with appropriate treatment, although she will be
predisposed to recurrent injury.
The State Fund refused to pay further benefits to Moore for
treatment on and after August 26, 1993. The State Fund maintained
that Moore's condition in August 1993 was related to a subsequent
nonwork-related injury.
At trial, Moore testified that she was never completely free
of pain between July 26 and August 26. She stated that there had
been occasional flare-ups throughout that time. Moore testified
that such activities as doing the dishes, taking long car rides,
and going on walks worsened her condition. On the day that her
symptoms reoccurred while cleaning her trailer, she was "just
trying to clean the cupboards, vacuum, dust."
In his deposition, Dr. Weinert testified that Moore's
condition on August 26, 1993, was "consistent with a flare-up of
her condition" and acknowledged that it was related to her original
injury which occurred at work.
The Workers' Compensation Court concluded that Moore's pain
did not arise from any new trauma, specific event, or injury. The
court held that the State Fund had failed to prove that Moore
suffered a nonwork-related injury after reaching maximum healing,
as provided in 5 39-71-407(5), MCA. It further held that Moore is
entitled to continued medical benefits for her back condition.
DISCUSSION
The sole issue on appeal is whether the Workers' Compensation
Court erred when it found that Moore's continuing symptoms are due
to a work-related injury and concluded that Moore is entitled to
continued medical benefits for the treatment of that injury.
We employ two standards of review for workers' compensation
court decisions: We review the findings of fact to determine if
they are supported by substantial, credible evidence, and we review
conclusions of law to determine if they are correct. Turjan Y. Valley
ViewEstates (Mont. 1995), 901 P.2d 76, 79, 52 St. Rep. 740, 741-42
( citing Caekaert Y. State Compensation Mutual Ins. Fund ( 19 94 ) , 2 6 8 Mont . 10 5 ,
111, 885 P.2d 495, 498).
The State Fund maintains that Moore suffered a new "injury"
while cleaning her trailer and that it is thereby relieved of
liability pursuant to 5 39-71-407(5), MCA, which provides:
If a claimant who has reached maximum healing
suffers a subsequent nonwork-related iniurv to the same
part of the body, the workers' compensation insurer is
not liable for any compensation or medical benefits
caused by the subsequent nonwork-related injury.
(Emphasis added.)
Section 39-71-119, MCA (1993), provides:
(1)"Injury" or "injured" means:
(a) internal or external physical harm to the body;
(b) damage to prosthetic devices or appliances,
except for damage to eyeglasses, contact lenses,
dentures, or hearing aids; or
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Cc)death.
(2) An injury is caused by an accident. An
accident is:
(a) an unexpected traumatic incident or unusual
strain;
(b) identifiable by time and place of occurrence;
Cc) identifiable by member or part of the body
affected; and
(d) caused by a specific event on a single day or
during a single work shift.
Moore initially has the burden of proving that her prior
work-related injury was the cause of her later disability. Lee v.
Group WCableTCIofMontann (1990), 245 Mont. 292, 295, 800 P.2d 702,
705. Once she has established a causal connection between her
current condition and her January 1993 accident, the burden shifts
to the State Fund. Lee, 800 P.2d at 705. The State Fund must then
demonstrate that a subsequent accident caused Moore's current
condition.
The Workers' Compensation Court found that the medical
evidence supported Moore's contention that her current condition
was causally related to the January 1993 injury. We conclude that
this finding was supported by substantial evidence. Dr. Weinert
testified with a reasonable degree of medical certainty that
Moore's condition was a "flare-up" of her preexisting condition.
He described her condition in August 1993 as "nearly synonymous"
with her earlier compensable work-related injury. When asked if he
considered Moore's condition to be a new injury, he testified that
it was not.
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The State Fund contends that the events which occurred while
Moore cleaned her trailer satisfy the requirement that there be an
"accident" which causes an "injury," as defined in 5 39-71-119,
MCA. The State Fund asserts that although Moore was not involved
in one isolated, discrete event while cleaning her trailer, it is
sufficient that all activities which produced additional symptoms
occurred on one day and that the physical result was unexpected.
According to the State Fund, because the events occurred on one day
at a single location, and because Moore suffered "harm to the
body," as required by 5 39-71-119(l) (a), MCA, Moore's condition was
most likely the result of a new "injury." The State Fund relies on
Welch v.AmericanMineServices, Inc. (1992), 253 Mont. 76, 831 P.2d 580, to
support its position. We hold that Welch is inapposite.
An injury must meet all three requirements of § 39-71-119,
MCA: there must be an "injury" and an "accident," and the injury
must be caused by the accident. Welch, 831 P.2d at 584. The 1987
amendments to the Workers' Compensation Act specifically require
that an accident be "identifiable by time and place of occurrence"
and be "caused by a specific event on a single day or during a
single work shift." Section 39-71-119(2) (b) and (d), MCA (emphasis
added). In Welch, we held that an infection caused by the
claimant's new boots rubbing sores on his feet during a single day
of work constituted a "specific event . . . during a single work
shift," and thus met the accidental injury requirement of
5 39-71-119, MCA. Welch, 831 P.2d at 584-85. Our holding was based
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on the fact that there was a single, identifiable event--the
rubbing of the boots--which caused the claimant's injury.
In this case, the State Fund has failed to identify a specific
incident during Moore's day of cleaning (i.e., vacuuming or lifting
a box) that caused Moore's back pain. Moore testified that she had
been performing normal household cleaning duties when her symptoms
reoccurred. Unlike the claimant in Welch, who could point to his
tight boots as the cause of his pain, Moore could not identify a
specific cause of her back pain. While Moore's condition may have
arisen as a consequence of a single day of cleaning, her pain was
not attributable to a "specific event" at an identifiable time, as
required by § 39-71-119(2) (a), MCA.
The State Fund further contends that although Moore did not
suffer an "unexpected traumatic incident," she did suffer an
"unusual strain," as required by § 39-71-119(2) (a), MCA, because
the symptoms she experienced following her activity on that date
were unexpected. However, according to the testimony of her
treating physician, it was not unexpected that following her
original injury she would experience flare-ups of her symptoms
based on normal activities. In fact, Dr. Weinert testified that
based on her original injury, a flare-up could occur from something
as trivial as rolling over in bed.
We conclude that the Workers' Compensation Court's finding
that Moore did not sustain a new injury while cleaning her trailer
is supported by substantial evidence, and therefore, that the
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Workers' Compensation Court correctly concluded that the State Fund
is not relieved of liability for her continued medical expenses
pursuant to § 39-71-407(5), MCA.
We affirm the judgment of the Workers' Compensation Court.
We concur:
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