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Harmon v. Harmon7/30/1991
Submitted on briefs May 24, 1991.
The claimant, Mr. David Harmon (Mr. Harmon), filed a petition in the Workers' Compensation Court under § 39-71-2905, MCA, to resolve a dispute with the insurer, State Compensation Mutual Insurance Fund (State Fund). Following a hearing before hearing examiner Robert J. Campbell, the Workers' Compensation Court found that claimant had not proved by a preponderance of the evidence that he was permanently totally disabled as defined in § 39-71-702, MCA, as a result of a September 18, 1979 injury in an industrial accident. Mr. Harmon appeals. We reverse and remand for further proceedings consistent with this opinion.
The dispositive issues as restated are:
1. Is there substantial credible evidence to support the conclusion that Mr. Harmon's current condition is not the result of the 1979 accident?
2. Did the Workers' Compensation Court err when it found that Mr. Harmon had failed to prove that he is permanently totally disabled?
At the time of trial, Mr. Harmon was a 47 year old married man with three children, two of whom still live at home. Mr. Harmon worked as a ranch hand for his father, Vern Harmon, near Lavina, Montana. He also worked a small ranch of his own. On September 18, 1979, Mr. Harmon was baling hay on his father's ranch. The baler was not tying knots properly and when Mr. Harmon attempted to correct the problem the baling twine wrapped around the end of his right index finger. To prevent his arm from being pulled into the baler, Mr. Harmon jerked back and stripped the soft tissue off the end of his index finger. The jerking action also injured his elbow and shoulder. That evening a portion of his right index finger was amputated midway between the first and second joints. Approximately four months after the accident Mr. Harmon went to see Dr. Huard and Dr. Daniels about the continuing pain in his shoulder. Mr. Harmon's shoulder was diagnosed as a rotater cuff tear. Over the next five months Dr. Huard and Dr. Daniels treated Mr. Harmon with Cortisone shots for his shoulder injury. On April 9, 1982, Mr. Harmon received a "Holton" award of $5,370.00 based on a 14 percent whole man impairment rating. While the shots gave temporary relief, the pain became progressively worse with time.
On December 6, 1984, Mr. Harmon suffered another injury while doctoring a 900 pound bull for his father. The bull charged him, hitting him in the mid-section. The rope was wrapped around his right hand and the bull jerked him violently along for approximately 8 feet. Mr. Harmon's back and neck were severely injured in this accident which ultimately resulted in the determination that Mr. Harmon was permanently totally disabled as a ranch hand. Mr. Harmon's shoulder also became more painful for a period of time after the accident. The treating physician, Dr. Lovitt, testified that it was normal to have pain in the shoulders in back injuries such as that experienced by Mr. Harmon and thus his main concern was the back and not the shoulders. He agreed with the diagnosis by Dr. Huard and Dr. Daniels that Mr. Harmon was suffering from a rotator cuff tear and that the back injury caused the pain in the shoulders to be more acute for a period of time following the accident.
Following counseling with Mr. Chet Dever, vocational rehabilitation counselor for Crawford Rehabilitation Services, Mr. Harmon was retrained as a taxidermist in 1987. Mr. Harmon's shoulder continued to cause discomfort and on May 15, 1988, Dr. Lovitt performed a manipulation procedure under anesthesia to loosen Mr. Harmon's shoulder joint. Dr. Lovitt testified that this procedure along with physical therapy exercises was ex
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