McIntyre v. Glen Lake Irrigation District

813 P.2d 451, 249 Mont. 63, 48 State Rptr. 579, 1991 Mont. LEXIS 153
CourtMontana Supreme Court
DecidedJune 13, 1991
Docket90-559
StatusPublished
Cited by20 cases

This text of 813 P.2d 451 (McIntyre v. Glen Lake Irrigation District) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIntyre v. Glen Lake Irrigation District, 813 P.2d 451, 249 Mont. 63, 48 State Rptr. 579, 1991 Mont. LEXIS 153 (Mo. 1991).

Opinions

JUSTICE GRAY

delivered the Opinion of the Court.

The claimant and appellant, Randy L. McIntyre, appeals the judgment of the Montana Workers’ Compensation Court that his disability resulting from thoracic outlet syndrome had not been proven by a preponderance of the evidence to result from his 1987 injury. We affirm.

The following issues are on appeal:

1. Did the Workers’ Compensation Court err in concluding that the claimant’s thoracic outlet syndrome did not result from his 1987 injury?

2. Is the claimant entitled to temporary total disability benefits as a result of his 1987 injury?

3. Is the claimant entitled to permanent partial disability benefits as a result of his 1987 injury?

4. Is the claimant entitled to costs, attorney’s fees, and a penalty award?

McIntyre was injured in an industrial accident in the course of his employment with Glen Lake Irrigation District on May 9,1987, near Eureka, Montana. He was attempting to change a flat tire on a heavy equipment trailer when the jack he was using began to tip. While [65]*65reaching under the trailer to try and release the jack, the jack slipped and the trailer came down; the trailer tire struck McIntyre’s chest and pinned him to the ground.

McIntyre’s wife discovered him under the trailer and, after jacking up the trailer to remove the claimant from under the tire, sought help in taking him to Dr. Andrew Ivy, a physician in Eureka. Dr. Ivy diagnosed the claimant as having suffered a fractured left clavicle and chest contusions. He prescribed medication for the pain and put McIntyre’s arm in a sling. Two days later he set the fractured clavicle in a cast and x-rayed it. He saw the claimant several more times to check the claimant’s progress, the last time being June 15; on that occasion, he advised the claimant to return in one month for another x-ray. Dr. Ivy’s records indicate that McIntyre did not return one month later. Dr. Ivy never did remove the claimant’s cast and it was not until McIntyre suffered a second work-related injury in 1988 that Dr. Ivy saw him again.

As a result of the 1987 injury, McIntyre missed approximately three months of work. He and his wife agreed with the employer that McIntyre’s wife would perform his regular job duties during this time, in return for which the employer would pay McIntyre his usual wage.

On May 15, 1988, McIntyre was injured in a second industrial accident arising out of his employment with Glen Lake Irrigation District. While standing in waist-deep water attempting to clear a beaver dam from a ditch, he pulled a small log out of the ditch and turned to throw it over his right shoulder when he felt a “pop” in his back. He immediately felt a pain in his neck and right shoulder area, and noticed numbness and tingling in his right arm. The claimant finished the work day and returned to work the next day.

The soreness continued, however, so he reported the injury to his employer and went to see Dr. Clay McDonald, a chiropractor in Eureka. Dr. McDonald referred McIntyre to Dr. Ivy. Upon examining the claimant on May 23, 1988, Dr. Ivy found him to have pain in the right shoulder area when he turned his head to the right. Dr. Ivy also found that the right rotation of McIntyre head caused a sensation going down McIntyre’s right arm into the fingers. Dr. Ivy made the following diagnosis:

“I thought he had done something in his neck by that sudden motion, that pinched one of his cervical nerves, and therefore I gave him a collar to wear and I gave him some cortisone, a good dose to take. And at that date he brought Doctor McDonald’s X-rays which showed a slight degeneration of the disc between cervical 5 and 6 with [66]*66some spurring, and I assumed that was probably the source of his problem.”

Dr. Ivy saw McIntyre again on May 27, 1988. The claimant returned to work on June 1, 1988. He ceased working June 12,1988, because of pains in his neck, right shoulder and right arm, including tingling and numbness.

Dr. McDonald, the chiropractor in Eureka, referred McIntyre to Dr. Stephen Martini in Kalispell. Dr. Martini has no board certification but limits his practice to “spine rehabilitation.” During his first visit with the claimant on July 12, 1988, Dr. Martini obtained a history from McIntyre which included a description of the 1988 injury, but not the 1987 injury; that history reflected that McIntyre noticed pain in the low thoracic area toward the end of the day on which the May, 1988 injury occurred. Dr. Martini assessed the claimant’s problems as right thoracic outlet syndrome (TOS), cervical spondylosis and a possible bulging cervical disc. On August 17, 1988, his assessment continued to include cervical spondylosis and a bulging cervical disc, but made no mention of TOS. Dr. Martini was not advised of the 1987 injury until April 20,1989. Occupational therapist Tim Tracy also obtained a history from McIntyre in July, 1988; again McIntyre made no mention of the 1987 injury when indicating problems with his right arm and shoulder.

For reasons not entirely clear on the record, McIntyre went to see Dr. Richard Nelson, a neurologist in Billings, Montana, in November, 1988. Dr. Nelson obtained a history of both the 1987 and 1988 injuries and diagnosed cervical, lumbosacral sprain syndrome, a bulging disc and right TOS. Later, in a June 1, 1989 letter to the claimant’s attorney, Dr. Nelson stated:

“Since the thoracic outlet syndrome is placed in that same exact anterior cervical spine taht [sic] the fracture took place, it is more likely than not that this was, indeed, the origin of his thoracic outlet syndrome. With regard to his neck syndrome he has osteoarthritic spurring and bulged disc which is causing some thecal indentation in the neck and no one would be able to tell when that occurred, in either the first or the second accident.”

In November, 1989, Dr. Martini stated by letter to the claimant’s attorney that, due to the trauma involved in the first accident, it was his opinion that the TOS was “most consistent with the mechanism of injury surrounding the first incident.” He further recommended that the claimant enroll in the Spinal Rehabilitation Program.

McIntyre entered the Kalispell Regional Hospital Spinal [67]*67Rehabilitation Program on January 15, 1990. In the admission history, Dr. Martini recorded that McIntyre had suffered a fractured right clavicle in 1987 and had, at the time of that occurrence, experienced “right upper extremity numbness and discomfort.”

Trial was held in the Workers’ Compensation Court on May 23, 1990. The medical evidence and testimony of Dr. Ivy and Dr. Martini were entered by depositions. The Workers’ Compensation Court entered its Findings of Fact and Conclusions of Law and Judgment on October 18, 1990, ruling that the claimant had failed to causally relate the TOS to his 1987 injury by a preponderance of the evidence. The Workers’ Compensation Court recognized that it was without jurisdiction to consider the 1988 injury at that time; therefore, it could not establish any disability entitlements.

The first issue is whether the Workers’ Compensation Court erred in concluding that the claimant’s TOS did not result from his 1987 injury. We note that the question before this Court is not whether a 1987 injury occurred; nor is it whether the claimant’s TOS was proved by a preponderance of the medical evidence.

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McIntyre v. Glen Lake Irrigation District
813 P.2d 451 (Montana Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
813 P.2d 451, 249 Mont. 63, 48 State Rptr. 579, 1991 Mont. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintyre-v-glen-lake-irrigation-district-mont-1991.