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Nelson v. Semitool3/26/1992
49 St.Rep. 253
Submitted on Briefs February 13, 1992.
Henry E. Nelson (Nelson) appeals from an order of the Workers' Compensation Court attributing fifty percent of his disability to an occupational disease resulting from his employment with the respondent, Semitool Inc., and fifty percent to a pre-existing disability. Nelson asserts that the occupational disease from which he suffers is fully compensable by Semitool and was inappropriately apportioned by the Department of Labor. We affirm.
The single issue for our review is whether the Workers' Compensation Court erred by apportioning fifty percent of Nelson's current disability to a pre-existing disability.
From 1964 until 1969, Nelson was an employee of the United States Postal Service. While employed by the postal service Nelson injured his back necessitating a lumbar spinal fusion. His back condition prevented him from performing his postal service duties and he began receiving federal workers' compensation benefits. Nelson received full disability benefits until 1978 and appears to continue to receive partial benefits at present.
From 1978 until 1982, with the exception of approximately seven months, Nelson worked as a hardware store clerk. There is conflicting evidence regarding what, if any, back problems Nelson experienced while employed as a clerk. There is evidence that Nelson consulted with a local orthopedist and reported low back pain that radiated into his legs during this period.
In 1982, Nelson began working for Semitool, Inc. Because of his prior back condition, Semitool required a physical. Nelson was cleared to lift 100 pounds on a regular basis. From 1982 until 1988 Nelson held several jobs with Semitool, each of which presented severe physical demands including heavy lifting. In 1988, Nelson began experiencing back problems which grew progressively worse culminating in Nelson's inability to continue work.
The Department of Labor directed that Nelson be examined by a member of the Occupational Disease Panel to determine if he suffered from an occupational disease. Nelson was examined by Dr. W.J. McKinstry who concluded that Nelson's back problems were related to his employment at Semitool. A second examination was conducted by Dr. McDonald who concluded that Nelson's back pain was not attributable to his work at Semitool but to his prior injury and the lumbar fusion. Because of the differing opinions, a third doctor, Dr. Jacobson, was appointed to review the case and act as referee. Dr. Jacobson concurred with Dr. McDonald and on this basis the Department of Labor denied Nelson benefits under the Occupational Disease Act.
Nelson appealed the Department of Labor decision and a hearing examiner was appointed. The hearing examiner determined that Nelson did suffer from an occupational disease as a result of the work at Semitool but that under ยง 39-72-706, MCA, Semitool was only fifty percent responsible for the current condition. Both parties appealed to the Workers' Compensation Court and the hearing examiner's conclusion was affirmed.
In addition to the reports and depositions of the above mentioned examining doctors, the record includes the opinions of Nelson's treating physicians, Drs. Ingham and Stephens. All of the doctors appear to agree that Nelson is suffering from a condition called spinal stenosis. Spinal stenosis is the narrowing of the area through which the nerves pass in the spinal column. The stenosis in Nelson's case is a result of increased bony growth or hypertrophic bone growth that has developed at the site of the 1968 bone fusion. There is conflicting evidence regarding whether or not the
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