 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mosca v. American Home Assurance Co.2/13/2004
mony, a job analysis prepared by a vocational consultant hired by the insurer, which indicates that claimant was required to lift only up to 50 pounds occasionally, is entitled to no weight.
Claimant worked a full shift on Friday, November 8, 2002, on two different wells in Jefferson County, Montana. There was snow and ice on the ground. He recalled the work that day as physically strenuous.
On Saturday morning, November 9, 2002, claimant had trouble getting out of bed due to low back and right buttocks, and leg pain. The pain continued throughout the weekend.
Claimant did not initially attribute his back and leg pain to his work. Indeed, he thought it was attributable to a pre-existing bone spur or bump on the heel of his right foot. Claimant later recalled slipping on ice on a couple of occasions on November 8, 2002, and catching himself before actually falling. He thought that those slips may have been responsible for his subsequent back condition. However, it is clear that his recollection of the slips was the result of retrospective reflection in trying to find an explanation for his condition after learning his back and leg pain were not attributable to a bone spur on the heel of his foot.
Claimant's condition did not improve over the weekend. On Monday morning, he called Downey and told him he was going to a doctor and would not be at work that day. He told Downey he had leg and back pain which he thought was caused by a bump on his heel.
At 10:00 a.m., Monday, November 11, 2002, claimant was seen by Todd Mohr (Mohr), a physician's assistant at Express Care in Butte. Mohr's office note records the following history:
This is a 40 y.o. gentleman who comes in today complaining of right low back pain for the past few months, no specific trauma. He works hard labor drilling and lifting lots of steel all day long. He does have numbness and tingling down the posterior of his thigh all the way down to his foot. He thinks this was brought on by a bump on the back of his foot that has been there for 5-6 months. It is nontender, it was hurting 5-6 months ago and does not hurt now. . . .
(Ex. 3.) After physically examining the claimant, and despite claimant's belief that his pain was related to a heel problem, Mohr suspected sciatica and ordered an MRI.
After seeing Mohr, claimant spoke with Sandra Messer (Messer), a personnel supervisor for Spherion. He told her he was going to have an MRI due to a suspected back condition. According to Messer he told her not to worry because he did not hurt himself at work, rather he had been helping someone over the weekend and hurt himself. I found her testimony incredible. Claimant denies telling her he hurt himself off the job . More significantly, Kathy Henningsen (Henningsen), who owns Spherion and is Messer's supervisor, testified that based on her conversations with Messer she understood that claimant woke up in pain on Saturday morning. Henningsen also testified that Messer told her that claimant had related his belief that his pain was caused by a bone spur. I have not the slightest doubt that claimant indicated he woke up in pain on Saturday morning and reported that fact to Messer, and that he reported, as he believed at that time, that he believed it was caused by a bone spur and not his work. I do not believe he told Messer he hurt himself on Saturday. Moreover, there is no evidence of any activity or injury on Saturday.
On Tuesday, November 12, 2002, claimant underwent an MRI. The MRI disclosed a large disk herniation at L5-S1 impinging on the right S1 nerve root. (Ex. 4.)
After learning that he had a herniated disk, claima
Page 1 2 3 4 5 6 7 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|