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Montana State Fund v. Murray6/8/2004
ORDER DENYING MOTION FOR RECONSIDERATION
The Montana State Fund (State Fund) moves for reconsideration of the Court's Findings of Fact, Conclusions of Law and Judgment issued April 6, 2004. In that decision I found that the claimant is suffering from an occupational disease and that the State Fund, as the last insurer providing coverage during his work exposure, is liable for his condition.
The State Fund specifically objects to paragraph 15 of the Findings of Fact. That paragraph reads:
In December 2000 Dr. Blavatsky told the claimant that standing on concrete while working at MSE contributed to his degenerative knee condition. This is the first time that the claimant was aware that occupational factors might be contributing to his knee condition.
State Fund argues that the finding is unsupported, citing testimony by Dr. Blavatsky to the effect that when he first saw the claimant he did not take "an extensive work history" from the claimant and relied principally on Dr. Rapaport's report for details regarding claimant's work and non-work activities. (Blavatsky Dep. at 23-24, 32-35.)
While the State Fund accurately cites Dr. Blavatsky's testimony, it misses the point made in paragraph 15. The paragraph concerns the claimant's awareness of an occupa-tional disease. The point is that Dr. Blavatsky discussed with the claimant the fact that his job entailed standing on concrete and that such standing contributed to his knee condition. The discussion constituted the first time the claimant was made aware of a possible relationship between his knee problems and his occupation. The claimant testified directly as to the conversation and I credited his testimony. Dr. Blavatsky was not specifically asked about the conversation or his knowledge of the claimant's standing on concrete. His testimony that he did not take an extensive history concerning the claimant's work and duties does not show that he was unaware of the claimant standing on concrete at work for long periods of time. The State Fund's argument is unpersuasive.
The State Fund takes issue with paragraph 22 as well. That paragraph reads:
Dr. Gallagher testified that the claimant's initial knee injuries were the ultimate cause of his knee replacements. After noting that his work and recreational activities over the years "probably had something to do with it," he said:
But I think his major problem was he got dinged - and I don't even know the exact - I wasn't involved when he did get injured, but my understanding is he had some type of injury which kind of - that he never really got over and necessitated those operations.
(Gallagher Dep. at 28.) When asked about the contribution of the claimant's work at MSE, he replied, "I wasn't involved at that point in his treatment at all. That's all been taken care of by my partner, Nick Blavatsky, and I would defer to Nick's judgment on that." (Id. at 29.) He noted that he was not familiar with the claimant's MSE job duties and had no opinion concerning the role his MSE employment may have played in his knee condition. (Id. at 37.) He simply noted that at the time he first saw the claimant his knees were already "worn out" (id. at 40), but despite that fact the claimant continued to function at a very high level until late 2000. (Id. at 38). [FN omitted.]
It urges that the finding disregards a medical record that the claimant got "dinged" immediately prior to seeing Dr. Blavatsky and that Dr. Gallagher's testimony must be read as affirmatively opining that the claimant suffered a non work-related injury to his knee immediately prior to his seeing Dr. Blavatsky.
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