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McGuin v. State Compensation Insurance Fund12/16/1999
aimant has been offered "very radical surgery" to address his continuing vertigo but the surgery has serious risks. (Ex. 2 at 95.) He has declined the surgery in light of the risks.
Following his first surgery, on August 11, 1997, claimant notified his employer regarding the fistula and his belief it was related to his diving. (Uncontested Fact 3.) On his doctor's advice (ex. 2 at 95), he retired on December 31, 1997. (Uncontested Fact 5.)
In this proceeding, claimant contends that his June 20, 1986 river float caused the fistula. At the time of his float the Lincoln County Sheriff's Department was insured by the State Fund.
The State Fund has denied liability for the fistula on several grounds. It denies that the fistula was caused by the 1986 river float. It further alleges that his claim is barred by his failure to report the injury within the 60 days provided in section 39-71-603, MCA (1985), and to file a claim for compensation within the one year provided by section 39-71- 601, MCA (1985). Finally, it contends that if the fistula was caused by the 1986 dive then it was materially and substantially aggravated by later dives in 1988 and 1991, thus relieving the State Fund of liability under the subsequent injury rule.
The parties have presented deposition testimony of three physicians with regard to the causation issue. Claimant's treating physicians, Dr. Oehrtman and Dr. Von Doersten, provided testimony which supports his claim that the fistula was caused by the 1986 river float. Dr. David Youngblood examined the medical records and history on behalf of the State Fund and testified that the fistula was not caused by the 1986 river float.
Dr. Oehrtman is an otolaryngologist, meaning he specializes in the diagnosis and treatment of diseases and injuries of the ears, nose, and throat. (Oehrtman Dep. at 6.) His practice includes diagnosis and treatment of fistulas, including fistulas arising from diving. (Id. at 7-8.) He testified that while perilymph fistulas in the oval window of the ear may arise as a result of pressures exerted during diving, diving is not the exclusive cause. (Id. at 17-18.) He testified that the condition may also be associated with sky diving, which involve changes of pressure affecting the ear, or trauma, such as a blow to the head. (Id. at 35-37.) Sometimes no specific event can be associated with the condition and he agreed that there are "a multitude of other things" other than diving that can cause a fistula. (Id. at 41.)
Dr. Oehrtman testified initially that "it is possible that through diving Mr. McGuin could have developed a perilymph fistula" and that it could have possibly occurred "even in a fairly shallow diving situation." (Id. at 38, 40.)
When asked if he had a medical "opinion to a reasonable degree of medical certainty," he replied:
A. That's hard to say. He consulted with my partner in 1992, and in that note I don't see really an onset of the symptoms outlined, so at some time preceding '92. (Id. at 39.)
When further queried whether, based on claimant's history of the fistula was caused by the 1986 dive, he testified:
A. His history to me initially [regarding dizziness] was 1991. As I read the deposition, I see dizziness mentioned, if I haven't missed it, for the first time in 1986. I think it's plausible to say without any doubt that this is when it occurred. I can't say that, but it's definitely a plausible explanation for his symptoms. (Id. at 42.)
Ultimately, however, Dr. Oehrtman concluded on a "more probable than not" basis that the 1986 river float caused the fistula.
Asked if he thought it w
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