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Cooper v. Chevron Corp.3/5/2003
nt. Code Ann. Section 39-71-2907? (Pretrial Order at 2.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
On September 19, 1988, the claimant injured his low back in a fall at work at the Stillwater Mine in Nye, Montana. At the time he was working as a miner.
At the time of his industrial accident, the Stillwater Mine was owned or operated by Chevron which was self insured under Plan I of the Montana Workers' Compensation Act, Title 39, ch. 71, part 21, MCA. Chevron accepted liability for the claimant's September 19, 1988 injury.
On September 27, 1988, the claimant underwent back surgery, specifically a percutaneous lumbar diskectomy. (Ex. 4 at 7-8.) The level of the surgery is not clear from the operative report (id.) but later reports indicate the L5-S1 level was involved. Following the surgery, at his request, claimant was released to return to work.
Claimant thereafter experienced renewed low-back and right leg pain, as well as numbness in his right foot. (Exs. 4 at 14, 26 at 11.) His pain worsened and on June 1, 1990, he again underwent back surgery. This time, a large protruded disk compressing the right L5 nerve root was discovered and excised. (Ex. 4 at 32.)
Following claimant's second surgery, his foot numbness and leg pain resolved, but he continued to have some back pain, (Exs. 23 at 18-19, 26 at 11.) On December 6, 1990, Dr. William Shaw, who had been treating claimant in follow-up to his surgeries, declared claimant at maximum medical improvement (MMI) and rated his impairment at 16% of the whole person. (Ex. 23 at 19-20.) With respect to his condition, Dr. Shaw noted: "He is doing well without leg pain or sharp back pain. There is still the dull aching in the low back particularly with exercise and activity." (Id. at 19.)
On March 7, 1991, claimant entered into a Compromise and Release Settlement with respect to his September 19, 1988 industrial accident. The settlement agreement closed his future entitlement to compensation benefits in return for payment of $33,500. (Ex. 40 at 1.) The agreement reserved future medical benefits. (Id.)
Claimant testified that between 1991 and 1992 he continued to have back pain. He cites treatment on January 3, 1991, by Dr. Don Thomas in Lewistown. Dr. Thomas' records indicate claimant was suffering from back pain but he suspected kidney problems. (Exs. 8 at 1, 30 at 1.) Claimant testified that Dr. Thomas suspected that he had a kidney stone but ultimately concluded that his bad back was causing his pain. However, there is no indication in the records furnished the Court that that was the case.
He also cites treatment by a chiropractor and massage therapist in Lewistown. Claimant testified he "did not try" to obtain the records of the massage therapist. With respect to the chiropractor, he could not recall the chiropractor's name, the dates he saw the chiropractor, or even whether the chiropractor was in Lewistown, where he was living at the time. Thus, there are no chiropractic records which would support his testimony.
Claimant further testified that for several years after 1990 he did not seek further care from an orthopedic surgeon because he did not want to have additional surgery. I did not find that testimony credible.
Between 1991 and 1996 claimant says he treated his back pain with over-the-counter pain relievers.
Sometime in the early 1990s the claimant moved to Alaska permanently an
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