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Mosca v. American Home Assurance Co.2/13/2004
nt began to suspect that his condition might be work related. On Friday, November 15, 2002, claimant's wife went to Spherion's offices and talked to Henningsen. She presented Henningsen with a First Report of Injury and indicated that claimant desired to file a claim although he was not sure how he had been hurt. Henningsen refused to complete or file the form. She was unsure if claimant had suffered a work-related injury. She testified she was confused and did not know what to do and whether to file a claim. She wanted to talk to claimant further and tried to contact him but was not able to get a hold of him. She did not fill out the first report and did not contact Spherion's insurer. However, she acknowledged in her testimony that she knew as of November 15, 2002, that the claimant was probably going to pursue a workers' compensation claim.
On November 8, 2002, American insured Spherion.
On November 21, 2002, claimant filled out and signed a First Report of Injury and sent it to the Montana Department of Labor an Industry (Department). (Ex. 1.) In that report, in response to a question asking for a description of his accident, he wrote:
Went to work Friday 11-8-02. Saturday 11-9-02 could not stand was not sure what was wrong. Went to dc 11-11-02.
(Id.) In response to a question regarding the cause of his injury, he wrote "not sure." (Id.) The report was received by the Department on November 25, 2002.
At the time the claimant's wife talked to Henningsen on November 15, 2002, and at the time the claimant sent in his first report on November 25, 2002, no physician had related his herniated disk to his work. However, claimant surmised that possibility and pursued it as diligently as he could have. He did not at that time recall any specific incident precipitating an onset of pain. Indeed, even though subsequent thought about the matter brought forth a memory of two slips on his last day of work, those slips were not associated with specific pain or injury. Thus, the information imparted by claimant's wife to Henningsen on November 15th, was all the information claimant had. Had claimant been clairvoyant, perhaps he could have told Henningsen that his doctors would ultimately find a causal relationship between his herniated disk and his job . However, the workers' compensation provisions requiring notice to the employer do not require clairvoyance.
Ultimately the claimant did recall that on November 8th, he had slipped on ice and caught himself a couple of times. In retrospect, he thought the slips might have caused his herniated disk but he testified in his deposition that he had also slipped at work on previous occasions.
The claim filed by claimant ultimately found its way to American's Montana adjuster. Henningsen's testimony showed that the adjuster had the claim at least as early as mid-December 2002.
American denied the claim and has persisted in its denial.
On December 2, 2002, claimant saw Dr. Gus G. Varnavas, a neurosurgeon.
(Ex. 8.) Dr. Varnavas reported that claimant's back and leg pain "has been progressive and unremitting. He has been unable to work." (Ex. 8 at 1.) The doctor recommended surgery.
On December 4, 2002, claimant underwent a discectomy. (Ex. 5.) The surgery found a "large free fragment" from a "massive disc herniation" at the L5-S1 level. (Id. at 1.)
Claimant's surgery did not provide full pain relief and he continued to be treated for pain. (Ex. 12-1). As of November 14, 2003, Dr. Michael Sousa, an orthopedic surgeon, performed an occupational disease evaluation of claimant at the request of the Department, a
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