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Allen v. Treasure State Plumbing12/19/1990
Submitted on briefs October 11, 1990.
Employers' Commercial Union appeals from the judgment of the Workers' Compensation Court which held that Employers' Commercial Union must pay permanent partial disability benefits and attorney's fees to claimant, John Allen. We affirm.
The issues we find necessary for review are:
1. Whether the Workers' Compensation Court properly allocated John Allen's benefit payments among insurers;
2. Whether the Workers' Compensation Court properly awarded John Allen attorney's fees.
At time of trial, John Allen (Mr. Allen) was a 48 year old married man who worked for his father as a laborer at Treasure State Plumbing and Heating since the age of 14. Since that time, Mr. Allen has worked as a plumber, laborer and as a backhoe operator.
In July of 1973, he began to experience low back pain. In an effort to alleviate the pain, Mr. Allen sought treatment from Dr. Sterling R. Hayward, a Billings orthopedic surgeon. According to Dr. Hayward, Mr. Allen's back condition had existed for at least five years and was aggravated by his work as a backhoe operator. As a result of this diagnosis, Dr. Hayward recommended that Mr. Allen change jobs and discontinue his work as a backhoe operator.
Apparently, Mr. Allen did not heed this advice and on October 25, 1974 he suffered a second back injury while operating a backhoe. Following this injury, he did not return to work until March 12, 1976. Mr. Allen sought workers' compensation benefits and Employers Commercial Union accepted liability and paid medical benefits as well as temporary total and partial disability benefits.
Following this accident, Mr. Allen again sought treatment from Dr. Hayward. Following several examinations, the doctor determined that Mr. Allen's back condition may have been the result of a herniated nucleus pulposus. This unconfirmed, yet suspected diagnosis, matched his conclusions of a year earlier, when Mr. Allen first sought treatment. Once again, Dr. Hayward recommended that Mr. Allen seek different employment.
In May of 1976, the doctor again examined Mr. Allen and noted that his back condition was "staying about the same." Following this examination, Dr. Hayward rendered his opinion that Mr. Allen had reached a condition of maximum medical improvement.
After returning to work, Mr. Allen decreased his amount of time operating the backhoe. In fact, the only time he did any backhoe work was when there was no light work available. He noticed that even a small amount of time on the backhoe aggravated his back injury.
On September 12, 1977, Mr. Allen, while working for Treasure State Plumbing, again injured his back. Apparently, this injury occurred while he was helping a co-worker lift a ten inch clay sewer pipe, which weighed approximately 230 pounds. The insurer at risk at the time of this accident was Charter Oak Fire Insurance Company (Charter Oak), however Mr. Allen did not pursue any claim against it at this time.
Fearing that Dr. Hayward would recommend he undergo surgery, Mr. Allen decided to seek chiropractic care. Therefore, instead of returning to Dr. Hayward, he sought treatment from Dr. Cromwell, a Billings chiropractor. While in Dr. Cromwell's care, he returned to work where he reinjured his back while lifting some bathtubs. Once again, Mr. Allen did not report this accident, nor did he file a claim.
Following these accidents, Mr. Allen discontinued working in the field and began working in the office. Finally, in 1987, he filed a petition before the Workers' Compensation Court alleging that he had suffered an injury on
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