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Cooper v. Chevron Corp.3/5/2003
n House sat for both cash and in-kind remuneration.
o Operates a small photography business, taking, and selling nature photographs.
Claimant has kept no records of his income over the years, so it is impossible to verify how much work he has actually done. I note that some of his purchases seem too good to be true in light of the limited income he says he has had. He testified that in 1993 he and his brother bought land with a cabin for $30,000 with no money down. The cabin subsequently burned down and in 1996 he and his brother received $108,000 in an insurance settlement. Either the property appreciated at an extraordinary rate, or they purchased the property at an extraordinary discount, or they improved the property. Then claimant says he and a partner were able to purchase a motel for no money down. Then I note the entries in the medical records indicating he was engaged in construction. I am not persuaded that claimant has fully disclosed his work over the years.
I am persuaded that claimant's back pain between 1991 and 1998 was insignificant. I am unable to determine how significant it was from July 1998 to April 2000 or what events may have aggravated or exacerbated his pain. I am absolutely convinced that he exaggerated his back pain between 1998 and April 2000 to obtain narcotics. I am also persuaded that despite the claimant's denials, his renewed pain in 1998 was triggered by some sort of event. I am therefore unpersuaded that claimant's medical care between July 1998 and April 2000, was due to his industrial injury.
CONCLUSIONS OF LAW
This case is governed by the 1987 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
Claimant settled his entitlement to compensation benefits, therefore, the only issue is his entitlement to payment for his medical care since 1998.
If the claimant's medical care in 1998 and thereafter was the result of a natural progression of his 1988 injury, then it is compensable. Burglund v. Liberty Mut. Fire Ins. Co., 286 Mont. 134, 950 P.2d 1371 (1997).
If not a natural progression, the issue is more complicated by the fact that the claimant's injury was in 1988. In 1989 the legislature amended section 39-71-407, MCA, to specifically provide that an insurer is not liable for a "subsequent nonwork-related injury to the same part of the body." (§ 39-71-407(5), MCA (1989); enacted by 1989 Laws of Montana ch. 184, § 1.) The 1989 amendment appears to modify the rule laid out in Rightnour v. Kare-More, Inc., 225 Mont. 187, 732 P.2d 829 (1987), in which the Supreme Court held that "subsequent injury is compensable [under the original workers' compensation injury] if it is the direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant's own intentional conduct." Id. at 189, 732 P.2d at 831. Therefore, I must analyze this case under Rightnour since it interpreted the law in effect at the time of the claimant's 1988 injury, and it is that law that applies here. Moreover, his moving the washing machine constituted "intentional conduct" under Rightnour.
Dr. Dietrich's testimony, which I have found persuasive, establishes th
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