No. 94-018
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
BRAND E. CAEKAERT,
Petitioner and Appellant,
v.
STATE COMPENSATION MUTUAL
INSURANCE FUND,
~espondent/In~~rer Respondent
and
FRANK WILSON PLUMBING AND HEATING,
"'*' atAfe
'I
MOIYTA~~
Employer.
APPEAL FROM: The Workers' Compensation Court, The
Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick G. Frank, Worden, Thane & Haines,
Missoula, Montana
For Respondent:
William J. Mattix, Crowley, Haughey,
Hanson, Toole & Dietrich, Billings, Montana
Submitted on Briefs: September 1, 1994
Decided: November 22, 1994
Filed:
Justice Terry N. ~rieweilerdelivered the opinion of the Court.
Appellant Brand E. Caekaert filed a petition in the Workerst
Compensation Court for the State of Montana in which he sought
medical and disability benefits from the State Compensation Mutual
Insurance Fund (State Fund). The Workerst Compensation Court
denied Caekaerttspetition. He appeals that decision. We reverse
the judgment of the Workers' Compensation Court.
The following issues are presented on appeal:
1. Did the Workerst Compensation Court err when it denied
Caekaerttsclaim for medical expenses?
2. Did the Workerst Compensation Court err when it denied
Caekaerttsclaim for temporary total disability benefits?
3. Did the Workerst Compensation Court err when it denied
Caekaerttsclaim for reasonable attorney fees and costs?
FACTUAL BACKGROUND
Caekaert is a journeyman plumber residing in Billings. He
also owns an independent poultry business that he began in
approximately 1987. In January 1988, Caekaert began working as a
plumber for Frank Wilson Plumbing and Heating. In early February
1988, Dr. S. Arthur Frankel determined that Caekaert was suffering
from bilateral carpal tunnel syndrome. On February 10, and
March 2, 1988, Dr. Frankel performed median nerve release
procedures on Caekaertts left and right hands respectively. The
State Fund insured Caekaertts employer at the time the carpal
tunnel syndrome was diagnosed. In November 1988, Caekaert filed a
claim for benefits under the Montana Occupational Disease Act. The
State Fund accepted liability, covered the medical expenses, and
paid Caekaert temporary total disability benefits.
As early as May 1988, Caekaert visited other doctors to
complain of recurring symptoms. In June and July 1988, Dr.
Richard P. Lewallen, an orthopedic surgeon in Billings, referred
Caekaert to Dr. Donald H. See, a neurologist, for nerve conduction
tests. Dr. S e e v s tests indicated that the condition of Caekaertvs
right median nerve had worsened. Following these tests, Caekaert
was referred to Dr. Jeffrey Hansen, Dr. Lewallenls partner, who
specializes in carpal tunnel surgery. Dr. Hansen has remained
Caekaertvs treating physician for his symptoms related to carpal
tunnel entrapment since July 7, 1988.
Dr. Hansen formed the opinion that Dr. Frankel1s surgeries
were unsuccessful and concluded that re-exploration surgery on both
hands was necessary. Dr. Hansen also concluded that Caekaertls
symptoms became worse following the surgeries performed by Dr.
Frankel. Dr. Hansen and Dr. Lewallen were additionally concerned
that Caekaertls median nerve was compressed not only at his wrist,
but at his elbow. Despite these opinions, Dr. Hansen adopted a
conservative approach to treatment because Caekaert was uncertain
about further surgery. Dr. Hansen decided to wait and see if
Caekaertls condition would improve.
In November 1992, Caekaert's hands reached the point where he
felt surgery was again necessary. Dr. Hansen explained that the
re-exploration procedures were necessary to alleviate the same
symptoms that existed in June and July of 1988. On December 11,
1992, Dr. Hansen performed surgery for release of the median nerve
at Caekaert's right wrist and just below his right elbow. On
February 12, 1993, Dr. Hansen performed another release procedure
for the median nerve at Caekaert's left wrist and elbow. Dr.
Hansen testified that the 1992 and 1993 surgeries left Caekaert
totally disabled for six to eight weeks following each surgical
procedure.
Between the 1988 procedures and the 1992 and 1993 procedures,
Caekaert worked sporadically. On June 27, 1988, Caekaert briefly
returned to work as a plumber for Star Service. On July 15, 1988,
while working for Star Service at St. Vincent's ~ospital,Caekaert
injured his back. He returned to work for Star Service at a
Reedpoint job site after a couple of weeks. In September, he quit
his job with Star Service, claiming that the commute to Reedpoint
from Billings hurt his back and that his hands still bothered him.
Caekaert also worked periodically doing various jobs for his
poultry business.
Following the 1992 and 1993 surgeries, Caekaert submitted his
medical bills to the State Fund. However, the State Fund denied
liability. Caekaert then petitioned the Workers' Compensation
Court for an award of medical expenses and disability benefits.
After trial, the Workers1 Compensation Court concluded that the
State Fund was not liable.
In its Finding No. 18, the court found that Caekaert, in
depositions and interrogatories in a separate claim related to his
back injury, stated that his carpal tunnel syndrome did not prevent
him from working and that his symptoms dramatically improved after
surgery. In its Finding No. 14, the court found that Caekaert, in
the previous litigation, claimed that he was permanently totally
disabled from the back injury. In its Finding No. 22, the court
noted that Dr. Hansen stated that Caekaert had reached "medical
stabilityv1on May 18, 1989. The court also pointed out that
between 1988 and 1992 Caekaert continued to work in his poultry
business, and in Finding No. 26, expressed skepticism regarding
Caekaertvs testimony that he did as little strenuous work as
possible in that business. In ind ding No. 34, the court observed
that Dr. Hansen stated that Caekaertvs activity between the
surgeries probably incrementally increased the problem, but
Dr. Hansen stated that it was a difficult question of causation.
Finally, in ind ding No. 35, the court found that Dr. Hansenvs
testimony, and Caekaertls activity in the poultry business,
established that Caekaertvsactivity made his condition permanently
worse.
The court's conclusions of law are also important to this
appeal. In Conclusion No. 2, the court concluded that because
Caekaertls work in the poultry business aggravated his carpal
tunnel problem, the State Fund is not responsible for the medical
expenses or the temporary total disability benefits. In Conclusion
No. 4, the court stated that Caekaertvsclaim for temporary total
disability is barred by judicial estoppel because in previous
litigation he claimed that his back injury left him permanently and
totally disabled. The court concluded that because Caekaert
5
claimed the back injury left him permanently disabled, he suffered
no lost earnings after the 1992 and 1993 surgeries. The court
noted that Caekaert was not judicially estopped from receiving
medical benefits because previous testimony established that his
1988 carpal tunnel surgeries were not 100 percent successful.
Finally, the court concluded that Caekaert was not entitled to
recover his attorney fees or costs. Caekaert appeals from these
findings and conclusions.
DISCUSSION
ISSUE 1
Did the Workers' Compensation Court err when it denied
Caekaert's claim for medical expenses?
In reviewing a Workers' Compensation Court decision, this
Court examines whether the court's findings of fact are supported
by substantial credible evidence. Buckentin v. S a e Compensation Ins. Fund
tt
(Mont. 1994), 878 P.2d 262, 263, 51 St. Rep. 656, 657. If there is
conflicting evidence, we examine whether substantial evidence
supports the Workers' Compensation Court, not whether the evidence
might support contrary findings. Buckentin, 878 P. 2d at 263. We
review the Workers' Compensation Court's conclusions of law to
decide whether the court's determination of the law is correct.
Stordalen v. R c i s FoodFam (1993), 261 Mont. 256, 258, 862 P.2d 393,
ic'
394. Where medical testimony is offered by deposition, this Court
sits in as good a position as the Workers' Compensation Court to
determine the weight of the medical testimony. McIntyre v. Glen Lake
Imgation Dkt. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454.
Nonetheless, the medical testimony must be considered in the
context of other testimony that the trial court did in fact have an
opportunity to observe if it is relevant to medical issues.
Mclntyre, 813 P.2d at 454.
It is undisputed that the State Fund accepted responsibility
for the 1988 surgeries. The issue is whether the State Fund, as
the initial insurer, remains liable for the subsequent surgery.
Caekaert claims he is entitled to wage benefits and medical
expenses based on 5 39-72-704, MCA (1987), which provides:
In addition to the compensation provided by this
chapter, an employee who becomes either totally or
partially disabled from an occupational disease is
entitled to receive for treatment of the occupational
disease, without limitation as to lensth of time or
dollar amount. reasonable medical services,
hos~italization, medicines, and other treatment approved
by the division.
(Emphasis added.)
In response, the State Fund contends it is not responsible for
the 1992 and 1993 surgeries because Caekaert aggravated his
condition by working in the poultry business between 1988 and 1992.
The State Fund asserts that the Workers1 Compensation Court
correctly concluded that the "last injurious exposure doctrinel1
applies. SeeBeltonv.CarkonTransport (1983), 202 Mont. 384, 389, 658
P.2d 405, 408 (holding once a claimant reaches maximum healing or
a medically stable condition, the initial insurer at risk is not
responsible for subsequent injuries or conditions); EBI/Onon Groupv.
State Compensation MutualIns. Fund (1991), 249 Mont. 449, 452, 816 P.2d
1070, 1072. Montana statutorily recognizes a version of the last
injurious exposure rule in occupational disease cases. Section 39-
72-303(1), MCA, provides that "[wlhere compensation is payable for
'
an occupational disease, the only employer liable is the em~lover
in whose em~lovmentthe em~loveewas last iniuriously emosed to
the hazard of the disease." (Emphasis added.)
We have not construed this statute, but Larson's Workmen's
Compensation Law treatise states that recurrences of disabilities
in occupational disease cases should be treated the same as
accidental injury cases. Larson 5 95.27. Larson also recognizes
that :
[Wlhen disability has once resulted from occupational
disease, a second disability occurring under a different
carrier will be chargeable to the first carrier if it is
a recurrence of the first disability. The persistence of
svm~tomsin the meantime, and the failure to demonstrate
an incident that can independently emlain the second
onset, are strong grounds for finding a mere recurrence
However, if the later exposure should increase the
degree of disability caused by the initial exposure, the
second carrier might become responsible; but in such a
case it would be necessary to distinguish carefully
between the increased disability from natural progress of
the disease and that resulting from the added exposure.
Larson 9 95.27 (emphasis added). The State Fund asserts that
Caekaert's activity between surgeries actually and proximately
caused the need for additional surgeries. The statutory language
indicates that the only employer liable is the employer where the
employee was last injuriously exposed. As the language from Larson
indicates, the first insurance company is liable for the second
disability if it is a recurrence.
To succeed in its last injurious exposure defense, the State
Fund must show that the subsequent surgeries did not result from
Caekaert's initial occupational disease. In other words, for the
last injurious exposure rule to apply, there must be evidence of a
second injury or injurious exposure that materially or
substantially contributed to Caekaert's symptoms from carpal tunnel
syndrome. See Peterson v. Eugene F. Burrill Lumber (Or. 1983 ) , 660 P.2d 1058,
1061.
A later injury is compensable by the original carrier if it is
a direct and natural result of a compensable primary injury, and
not the result of an independent intervening cause attributable to
the claimant. Rightnourv.Kare-MocInc. (1987), 225 Mont. 187, 189, 732
P.2d 829, 830-31. If the original injury or occupational disease
was the cause of the current condition, the State Fund is liable.
Applying the rules for review set forth previously, and the
above law, we then consider the medical evidence pertaining to this
issue.
The only medical testimony offered at the trial of this case
was that of Dr. Hansen, which was offered by deposition. He
testified that although excellent relief was observed by
Dr. Frankel a week or two after the 1988 surgery on Caekaert's
wrists, most of the symptoms had returned by several months after
those surgical procedures. Based on that development, both he and
Dr. Lewallen shared the opinion that the nerve had either been
overgrown by scar tissue, was again entrapped by a ligament, or had
actually been compressed at more than the level at which it was
released.
Dr. Hansen unequivocally testified that Caekaert's carpal
tunnel syndrome had not improved following the original surgery,
and, based on nerve conduction studies, his opinion was that the
condition had worsened. As a result, as early as July 1988 both he
and Dr. Lewallen were of the opinion that re-exploration surgery
would be necessary--long before Caekaert did the work on his
poultry farm to which the Workers1 Compensation Court attributed
his 1992 and 1993 surgical procedures.
Dr. Hansen testified that in November 1992, when Caekaert
finally consented to undergo further surgical treatment, he was
basically suffering from the same condition for which Dr. Frankel
had treated him in 1988. He gave the following unequivocal opinion
when asked whether the surgical procedures he performed in 1992 and
1993 were necessary due to the condition for which he originally
saw Caekaert in 1988:
Q. Dr. Hansen, is it your opinion that the releases
that you are referring to here in Exhibits 9 and 10
were done to alleviate the condition that existed
for as long as you treated Mr. Caekaert?
A. Yes, I feel that quite strongly.
Q. And is that opinion based on a reasonable medical
probability?
A. Yes, I believe it is.
After describing what he observed during the surgeries that he
performed, Dr. Hansen gave the following additional opinion
testimony:
Q. In January of '89, now that you have done the
operations, do you believe that you would have
found the conditions that you found upon operating
back in January l89?
Q. Do you understand my question?
A. Yes. I think the findings would have been
identical if we would have done the operation, you
know, a month after we first saw him.
The only testimony that Dr. Hansen gave which related
Caekaertls condition for which the 1992 and 1993 surgeries were
performed to a particular event, related it to the condition in
which Caekaert found himself following his 1988 surgical procedures
for which the State Fund has accepted liability. In answer to
questions posed on cross-examination, Dr. Hansen did concede that
Caekaertls conditions worsened periodically in relation to the
extent of his activities, but explained that worsened
symptomatology and worsened condition are not the same thing. He
also pointed out that every time Caekaert discontinued working on
his poultry farm, his condition basically went back to the baseline
state that Dr. Hansen observed when he originally examined him. He
testified that while continued activity may worsen the type of
condition for which he treated Caekaert, the amount was not
quantifiable and, while he did acknowledge that the type of
activity Caekaert engaged in on the poultry farm can lead to a
progression of symptoms, at no time did he express an opinion that
the surgery he performed in 1992 and 1993 was necessary because of
a progression of Caekaertls symptoms. His testimony was clearly
that whether Caekaertls symptoms worsened over time or not, the
additional surgical procedures that he performed were necessary due
to the condition that he believed existed when he first saw
Caekaert in July 1988.
Toward the end of the State Fund's cross-examination of Dr.
Hansen, he made the following concluding remark:
A. Basically he [had] about the same indications all
along, maybe a little bit worse now, but really not
a lot different than he did very early on in his
care ....
We have recognized that, in cases where a claimant is
reinjured before the first injury reaches a medically stable
condition, and the first insurer disclaims coverage, the burden of
proof falls on the insurance company at risk at the time of the
accident the claimant alleges causes his injury. Belton, 658 P.2d
at 409-10; OmBrien v. C n r l Feeds (1990), 241 Mont. 267, 272, 786 P.2d
eta
1169, 1172. In EBIIOrion, we noted that to avoid liability, the
initial insurer must show that (1) the claimant reached maximum
healing; and (2) that he or she sustained an injury after reaching
maximum healing. EBIlOrion, 816 P.2d at 1072.
In O@Brien, the claimant received numerous injuries under
different insurers. Doctors testified that although it was
possible that a number of events could have aggravated conditions
after claimant's original injury, the original injuries were more
likely than not related to his present condition. O@Brien, 786 P.2d
at 1171. We reasoned that there was no conclusive evidence that
the claimant reached maximum healing before the subsequent injury.
Although a doctor testified that it was possible that other events
could have aggravated the claimant's condition, we concluded that
medical possibility, absent more persuasive evidence, is not enough
to prove a claimant reached maximum healing before subsequent
employment. O@Brien, 786 P.2d at 1172. We also stated that a
medical release to return to work is not sufficient to establish
maximum healing. O~Brien,786 P.2d at 1172-73.
In this case, the State Fund had the burden of proving that
Caekaert reached maximum healing. It had to sufficiently explain
the second onset, proving it was not a recurrence of symptoms from
the 1988 surgeries for which it accepted liability. However, it
did not introduce sufficient evidence to establish that Caekaert
reached maximum healing, or that he reinjured himself.
Dr. Hansen supplied medical testimony, by deposition,
regarding the 1992 and 1993 surgeries. He testified that almost
immediately following the 1988 surgeries Caekaert required
additional surgery. He also testified, consistent with Dr.
Lewallenls opinion, that the later surgeries required releases of
the median nerves at both elbows. Any suggestions in Dr. Hansenls
testimony that Caekaertls activity subsequent to 1988 contributed
to his current condition was equivocal at best and does not change
the fact that surgery was necessary before any npossiblen
aggravation occurred. Moreover, medical possibility, absent more
persuasive evidence, is not sufficient to establish that Caekaertts
activity caused a subsequent injurious exposure which would relieve
the State Fund of liability. See OmBrien, 786 P. 2d at 1172. Because
e State Fund did not offer substantial evidence that a second
9
event or exposure caused Caekaert to undergo surgical procedures in
1992 and 1993, the Workerst Compensation Court incorrectly
concluded that the last injurious exposure rule barred Caekaertls
claim.
For these reasons, we conclude that the Workerst Compensation
Court erred by not holding the State Fund liable for Caekaertts
medical expenses following the second set of surgical procedures.
ISSUE 2
Did the Workers' Compensation Court err when it denied
Caekaertts claim for temporary total disability benefits?
Although the above analysis also supports awarding Caekaert
temporary total disability benefits following the 1992 and 1993
surgeries, the Workers1 Compensation Court concluded that Caekaert
was judicially estopped from asserting this claim.
The Workerst Compensation Court concluded that because
Caekaert, in depositions and affidavits in litigation following his
1988 back injury, claimed that the back injury left him permanently
and totally disabled, he is now estopped from claiming temporary
total disability. In other words, because he claimed his back
injury rendered him unable to earn income, he suffered no lost
wages following the 1992 and 1993 hand surgeries.
We previously recognized the doctrine of judicial estoppel in
Rowland v Hies (1986), 223 Mont. 360, 726 P.2d 310.
. Under this
doctrine, we do not permit litigants to assert inconsistent and
contradictory positions in separate litigation. The clearest
reason for the rule is to prevent parties from playing
"fast-and-loose with the court^.'^ Rowland, 726 P.2d at 315. To
give rise to judicial estoppel, the first representation must have
been made knowingly and free from the other party's inducement; it
applies particularly to admissions or positions asserted under oath
or in previous litigation. Rowland, 726 P.2d at 315. In Rowland,
we also cited a Texas case for the proposition that judicial
estoppel does not apply when the previous position is uncertain or
based on facts not yet determined. Rowland, 726 P.2d at 316 (citing
LaChance v. McKown (Tex. Ct. App. 1983), 649 S.W. 2d 658, 660) .
Although we agree with the above stated principles of judicial
estoppel, that doctrine does not apply here. Caekaert did not
offer inconsistent testimony in a previous case. He previously
claimed that his back pain was so severe that it forced him to quit
working for Star Service and left him with no earning capacity.
However, Caekaert had injured his back and was merely describing
his physical condition following that injury. Caekaert did not,
and because he is not a medical professional, could not, anticipate
the duration of his disability from that injury.
The State Fund contends on appeal that the real basis for
applying judicial estoppel is testimony given by Caekaert in 1991
that the condition of his hands at that time did not preclude him
from returning to work. However, the State Fund's argument, as
well as the trial court's conclusion, confuses the concepts of
npermanent total disability," "permanent partial disability,I1 and
"temporary total disability."
Permanent total disability, according to the terms in effect
at the time that Caekaert's condition occurred, referred to a
worker who had reached maximum healing and was unable to return to
work in his job pool. Section 39-71-116(15), MCA (1987).
Permanent partial disability referred to a worker who had reached
maximum healing but was left with physical restrictions which
affected his wages. Section 39-71-116(14), MCA (1987).
The only disability benefits sought in this case are temporary
total disability benefits. Those are awarded to a worker who
sustains a total loss of wages because he has not yet reached
maximum healing. Section 39-71-116(21), MCA (1987). It was
Dr. Hansen's undisputed testimony that Caekaert would be
temporarily totally disabled for six to eight weeks following each
of the procedures that he performed in 1992 and 1993. Whether he
was able to work prior to those surgical procedures in spite of
median nerve symptomatology, and whether at some time several years
earlier he was totally unable to work because of back complaints,
is irrelevant. The record established that although Caekaert was
unable to return to work as a plumber because of his back injury,
he did return to some form of gainful employment prior to the
surgeries performed by Dr. Hansen and was subsequently removed from
any form of occupation for a short period of time due to further
surgery.
We conclude that Caekaertts prior testimony regarding the
impact of his back injury on his ability to work as a plumber, and
his prior statements regarding his ability to work in spite of
ongoing symptoms from carpal tunnel syndrome, are not inconsistent
with his claim for temporary total disability benefits while he
recovers from the surgical procedures that were performed in 1992
and 1993. Therefore, we conclude that he is not judicially
estopped from claiming and receiving temporary total disability
benefits in this case.
ISSUE 3
Did the Workers1 compensation Court err when it denied
Caekaerttsclaim for reasonable attorney fees and costs?
Caekaert requested the Workers1 Compensation Court to award
attorney fees and a statutory penalty under 5 5 39-71-611 and -2907,
MCA (1987). Section 39-71-611, MCA, provides for attorney fees if
the insurer was unreasonable. Likewise, 5 39-71-2907, MCA,
provides for statutory penalties where the insurer unreasonably
delays or refuses to pay compensation. The issue of reasonableness
is one for the Workers1 Compensation Court to decide, based on all
of the evidence. Therefore, this case is remanded to the Workers1
Compensation Court for reconsideration of the attorney fee and
penalty issues, after taking into consideration this decision, and
all of the evidence.
The judgment of the Workers1 Compensation Court is reversed
and this case is remanded for the limited purpose of considering
Caekaertls claim for attorney fees, costs, and the statutory
penalty, and the duration of any temporary total disability
benefits to which Caekaert is entitled.
We concur: