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Mosca v. American Home Assurance Co.2/13/2004
nd opined that claimant was still temporarily unable to perform any type of work. (Ex. 26 at 6.)
Dr. Varnavas testified by deposition. Based on claimant's description of his slips and his heavy lifting he attributed claimant's herniated disk to his work on November 8, 2002. (Varnavas Dep. at 15-18, 27, 35-37.) He testified that just claimant's heavy lifting could have caused the herniated disk and commented that lifting and twisting is often the major culprit in such cases. (Id. at 18, 37.)
Dr. Sousa was asked by the Department to evaluate claimant for an occupational disease. Dr. Sousa examined claimant on November 14, 2003, and opined that claimant's herniated disk was an occupational disease. (Ex. 26 at 5.)
American has offered no contrary medical opinions. Thus, the only medical opinions tendered in this case relate claimant's herniated disk to his work.
I find that the claimant's herniated disk was more likely than not the result of on-the-job lifting and twisting over a period of more than one day. While claimant later recalled two slipping incidents on November 8, 2002, neither was associated with immediate pain and were only recalled later. Dr. Sousa, an independent medical examiner, expressly found that claimant's condition met all criteria for an occupational disease. Dr. Varnavas' testimony also supports that conclusion. As noted above, he testified that twisting and lifting is a major culprit in herniated disks. Claimant's testimony, and that of Michael Downey show that claimant's job involved heavy lifting and twisting on a day-by-day basis. No specific incident stands out, therefore it is reasonable to infer and find that the herniated disk resulted from the claimant's work over more than a single day.
I next address whether American's denial of liability was reasonable. As I found at trial, its denial is not reasonable.
After reviewing the briefs, depositions, and exhibits the day before trial, I questioned the basis for denying the claim and therefore conducted a telephone conference with counsel regarding the basis for taking the case for trial. During that conference I noted that the only medical opinions I had been provided were that claimant's condition was work related. I further noted that the notice defense was inconsistent with the insurer's position that claimant did not suffer a work-related injury, pointing out that if it was an occupational disease then the thirty day notice requirement of section 39-71-603, MCA, did not apply. After the conference, the insurer decided to go to trial.
During cross-examination of claimant, I interrupted the trial and conducted a further conference with counsel in which I indicated that the notice defense under the Workers' Compensation Act (WCA) was untenable since claimant provided notice within thirty days of his awareness that the condition might be work related. I summarized my concerns on the record.
Nonetheless, the trial continued with the insurer still denying liability even though its own evidence (Henningsen's testimony) showed she was apprized on November 15, 2002, - a mere seven days after claimant's alleged injury and six days after he became symptomatic - of the claimant's belief that his condition was job related and another witness (Michael Downey) confirmed claimant's occupation involved repetitive heavy lifting, pushing, and pulling.
I find that liability in this case was reasonably clear and should have been accepted:
a Claimant was involved in an occupation requiring heavy labor. He woke up with debilitating back and leg pain the morning after a day of work involving heavy labor and wa
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