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In re Abfalder5/30/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held in Billings, Montana on November 27, 2001. Michael Abfalder (claimant), was present and represented by Mr. Victor R. Halverson. Travelers Indemnity Company of Illinois (Travelers) was represented by Ms. Sara R. Sexe. Nationwide Mutual Fire Insurance Company (Nationwide) was represented by Mr. Kelly M. Wills.
Exhibits: Exhibits 1 through 4 were admitted without objection.
Witnesses and Depositions: Claimant testified at trial. Gary David Wattles also testified. In addition the deposition of claimant, Susan Elaine Abfalder (claimant's wife) and Steven Rizzolo, M.D. were submitted for the Court's consideration. The Court was also present by phone for the telephonic testimony of Dr. Thomas Lee Schumann. That testimony was in two parts, the first part (Schumann Dep. I) on May 11, 2001, the second (Schumann Dep. II) on May 25, 2001. Transcripts for both days were prepared and submitted to the Court.
Issues Presented: The sole issue in this case is: Which insurer is liable for claimant's compensation and medical benefits after December 1999?
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
From September 1978 until December 1999, the claimant was employed by Cereal Foods Processors (Cereal Foods) and its predecessor company at its Billings, Montana plant.
Claimant was initially employed as a sweeper for Cereal Foods. His primary duties were to sweep the floors and scavenge flour from the floor, putting it into 100-pound bags. (Abfalder Dep. at 14-15.) He held that job for three to four years. (Id. at 15.) Thereafter he held a number of different jobs, most of them involving significant lifting of bags of flour.
In early February 1994, claimant was working as a table man or trucker. His job required him to continuously lift 50-pound bags from a conveyer belt, carry them about 3 feet and put them on pallets. (Ex. 2 at 223; Trial Test.) Claimant was working 10-hour days and lifting between 2,000 and 2,500 bags. (Ex. 2 at 223.)
On the night of February 7, 1994, claimant woke up with acute low-back pain. (Id.) On February 8, 1994, he went to see Dr. David Drill, an internist. (Ex. 1, Drill at 1.) Dr. Drill diagnosed acute back strain. (Id.)
On February 11, 1994, claimant filed a workers' compensation claim. (Ex. 2 at 223.) The claim was made on a form published by the State Compensation Mutual Insurance Fund. (Id.) However, Cereal Foods' insurer was Nationwide, not the State Fund. (Pretrial Order, Uncontested Fact 2.) The claim found its way to Nationwide, which accepted liability for the claim as an occupational disease. (Id.) The parties agree that Nationwide paid appropriate compensation and medical benefits due him at the time. (Id.)
On March 10, 1994, Dr. Drill limited claimant to a 40 hour work week. (Ex. 1, Drill at 4.) His office note of that date sets out the following warning he gave the claimant's supervisor:
f he [the supervisor] works this man 7 days a week, 12 hours a day doing this type of work, he is going to end up with an Industrial Accident that is going to cost the company a large amount of money. (Id.)
Notwithstanding the warning, Cereal Foods continued to work claimant seven days a week albeit only for eight hours a day. (Id.) As a result, claimant suffered further pain and back spasm and on March 28, 1994, Dr. Drill took claim
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