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Hand v. Royal Insurance Company of America12/19/2002
Q: But you note in paragraph 4 that her increased neck and arm pain, as well as her intractable headaches and bilateral arm numbness had increased before she was injury on July 2 of 2001.
A: Correct.
Q: So can you say, to any reasonable degree of medical certainty, what effect, if any, the Lewistown incident had on that condition?
A: I would concur with my opinion that those symptoms had escalated prior to the injury . I can say that she as at risk for -- a greater risk for increasing her symptoms because she had that condition with the fall, where she fell a foot, but I can't say definitively whether any damage actually occurred or any permanent change in her symptoms occurred with that fall.
Q: And it is your opinion, I take it from your letter to Sandy Scholl and what you said previously here today, that she would have required this surgery even in the absence of any incident that occurred on July 2, 2001?
A: Yes. The decision had already been made to further diagnostic testingbecause of her increase in symptoms, so we were already pursuing down the diagnostic and potential therapeutic intervention course prior to her injury .
Q: Is it your opinion that it was a temporary aggravation of the pre-existing condition.
A: It was an aggravation of the pre-existing condition. I can't tell you whether -- I mean, the bottom line is she underwent a surgical intervention that eliminated the stenosis.
So to say whether it was temporary or not, I guess I don't know, because she quite rapidly underwent a surgical intervention that eliminated the problem, so to know whether she would have gotten back to her baseline -- Although her baseline was not a level baseline prior to her injury , it was an escalating baseline. In other words, her pain levels were getting worse, her symptoms were getting worse. She had this aggravation, or this fall, whatever you want to call it, step off the curve or something, and her symptoms continued to escalate.
I can't tell you whether the slope of that symptom curve really changed, as it was already escalating prior to her work injury .
Q: Okay. As you've said earlier, she would have required the surgery even in the absence of any event that occurred in Lewistown?
A: Correct. We had already gone down on a diagnostic path to work up her stenosis prior to her injury . (Weinert Dep. at 27-28, 32-33.)
Dr. Weinert did take claimant off work following the July 2nd incident. He did so on account of her spinal stenosis. (Weinert Dep. at 30.) He was asked if the July 2nd incident "changed her fibromyalgia condition in any way?" He replied that it did not. (Id. at 29.)
Claimant presented no medical evidence showing that her July 2nd incident materially aggravated her underlying neck condition or caused or materially accelerated her need for surgery. She presented no medical evidence that she was taken off work, or needed to be taken off work, following the July 2nd incident for any reason other than her spinal stenosis.
CONCLUSIONS OF LAW
This case is governed by the 2001 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 she is entitled to the benefits she 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 must show
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