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DeWitt v. Continental Insurance Co.2/19/2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held in Helena, Montana on February 17, 2004. Petitioner, Denise DeWitt, (claimant ) was present and represented by Mr. Bernard J. Everett. Respondent insurers were represented by Mr. William O. Bronson.
Exhibits: Exhibits 1 through 6 were admitted without objection.
Witness: Claimant testified. No depositions were submitted.
Issues Presented: As restated by the Court, the issues presented for decision are:
a Is the claim in this case time-barred?
b If the claim is not time-barred, is the claimant entitled to attorney fees and a penalty?
(Pre-Trial Order at 2.)
Having considered the Pre-Trial Order, the testimony presented at trial, the demeanor and credibility of the witness, exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant has worked for many years as a home mortgage consultant for Norwest Mortgage, which was acquired by Wells Fargo at least by April 2000, perhaps the year before.
Between 1996 and 2002 the respondents insured claimant's employer. The Court does not determine the periods of each respondent's coverage.
Claimant's job involves handwriting and extensive use of computers. Over the years, her handwritten entries have diminished and her entry of information utilizing a computer has increased. Most of the information she is required to enter has been by computer.
In 1996 the claimant was experiencing tingling sensations in both of her hands.
On November 7, 1996, the claimant was evaluated by Dr. P.A. Baggenstos, a neurosurgeon. (Ex. 1-4.) Dr. Baggenstos described her complaints at that time as "tingling sensation and numbness of her hands, right side more than left side." (Ex. 1-5.) He suspected bilateral carpel tunnel syndrome and referred her to Dr. Carlos P. Sullivan, Jr., a neurologist for nerve conduction studies. (Ex. 2-1.) On November 18, 1996, Dr. Sullivan did the studies and summarized the results as follows: "Nerve conduction studies reveal marked abnormalities consistent with carpal tunnel syndrome bilaterally which correlates well with this patients history and clinical findings." (Ex. 2-2.) He recommended surgery. (Id.)
Claimant discussed her condition with her doctors in 1996 and understood that the repetitive use of her hands in her work contributed to her condition and that her continued work would likely worsen her condition.
Claimant chose not to undergo surgery and continued working. She did not file an occupational disease claim and she did not notify her employer of her occupational disease.
In 1998 the claimant was provided by her employer with a laptop computer and her computer use increased even more.
On December 1999 she obtained further nerve conduction studies from Dr. Sullivan. The studies were for her right hand, which is her dominant hand, and showed a worsening of her carpel tunnel syndrome in her right hand. (Ex. 2-6.) At that time, the claimant notified her supervisor of her condition and the fact that it had worsened. Her supervisor suggested she purchase an ergonomically appropriate desk. The supervisor did not suggest to the claimant that she file a claim and in fact she did not do so at that time.
Thereafter, claimant's carpal tunnel symptoms continued to worsen. By 2002 she was having difficulty typing on her computer keyboard and at times lost all feeling in her right hand.
As a result of the continued worsening of her
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