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Wilson v. Ace American Insurance Group6/7/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on January 22, 2002, in Helena, Montana. Petitioner, Kathy D. Wilson (claimant), was present and represented by Mr. Norman H. Grosfield. Ace American Insurance Group (Ace) was represented by Mr. Leo S. Ward.
Exhibits: Exhibits 1 through 38 were admitted without objection.
Witnesses and Depositions: The claimant, claimant's mother (Diane Wilson), and Mamie Nyswonger testified at trial. In addition, the parties submitted depositions of claimant, Diane Wilson, Dr. John Vallin, Dr. John Campbell, Dr. Bruce T. Hayward, and Dr. Peter M. Sorini for the Court's consideration.
Issues Presented: The issues as set forth in the Pretrial Order are:
1. Whether Petitioner is temporarily totally or permanently totally disabled as a result of her industrial injury and entitled to retroactive total disability benefits.
2. Whether Petitioner's low back and knee conditions are related to Petitioner's industrial injury of March 9, 1999, and whether Respondent has to assume liability for the back surgery as recommended by Dr. Peter Sorini.
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant is presently 44 years of age and a native of the Ennis, Montana area. She is a high school graduate and attended college for two years, concentrating in accounting. (K. Wilson Dep. at 6.)
Over the years, claimant has worked as data entry clerk for a state agency, helped out on the family ranch, assisted her ex-husband in an outfitting business, worked entering data for her mother's bookkeeping business, and worked for Town Pump in various capacities. Her work in the outfitting business ended in approximately 1994. She worked for her mother's accounting business from 1984 to 1999. She is half-owner of the family ranch but presently does little if any work for the ranch.
Claimant worked for Town Pump from April 12, 1995 through August 2000, with interruptions due to injuries and health problems. During that time she worked as a deli manager, a day shift clerk, bookkeeper, and manager.
Claimant has multiple health problems antedating the industrial accident at issue in this case. As pertains to her back, neck, and shoulder conditions:
A Claimant tripped and fell when she was 18 and hurt her back. The exact nature of her injury is not elucidated, although there is a suggestion she broke something in her back.
B In 1990 claimant had pain in her upper and lower back. (Ex. 11-1.) She saw a doctor on a single occasion - October 8, 1990 -- for her complaints. (Id.) The pain resolved without significant treatment; the next mention of back problems is two years later.
C In September 1992 claimant experienced cervical and low-back pain and spasm and had a positive straight leg raising test. (Ex. 11-4, 11-5.) X-rays taken at that time indicated that she had degenerative changes of the spine from the L3 to L5 levels with disk space narrowing at the L4-5 level. (Ex. 11-5; Ex. 24.) She was examined by Dr. Lashman Soriya, a neurologist, on October 15, 1992, and he noted low-back pain radiating into claimant's right leg, however, claimant's neurological exam was normal. (Ex. 30.)
D In 1993 the exact date which is not discernable from the medical record supplied to the Court, claimant was experiencing low-back pain and spasm, however, straight leg raising t
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