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McGuin v. State Compensation Insurance Fund12/16/1999
lton rule. First, there is insufficient evidence to establish that the claimant reached MMI prior to the 1988 dive. While Dr. Youngblood testified that fistulas may heal themselves, he was of the opinion that the 1986 dive did not cause the fistula in the first place, and provided no MMI opinion with respect to the 1986 injury. Second, the evidence is insufficient to establish that the 1988 dive materially and permanently aggravated claimant's conditions. The only physician expressing any opinion on the point was Dr. Von Doersten, however, his testimony was limited. While he testified that the 1988 and 1991 dives likely exacerbated claimant's condition (Von Doersten Dep. at 34-35), he was not asked to explain what he meant by exacerbation
In light of the resolution in this case, it is unnecessary to consider claimant's constitutional challenge.
JUDGMENT
1. Claimant suffered an industrial injury in 1986, specifically a perilymph (sometimes referred to a "purulent") fistula of his ear. The State Fund is liable for both medical and compensation benefits with respect to that injury.
2. The Court has not been asked to determine the amounts due medical providers or to claimant, and expresses no opinion in that regard.
3. The PRETRIAL ORDER does not list costs or attorney fees as issues and the Court therefore does not award either.
4. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
5. Any party to this dispute may have 20 days in which to request a rehearing from these FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT.
DATED in Helena, Montana, this 16 th day of December, 1999.
c: Ms. Sydney E. McKenna Mr. Greg E. Overturf Submitted: July 19, 1999
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