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Romero v. Liberty Mutual Fire Insurance Co.1/29/2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary:
Claimant injured her right arm in a 1992 industrial accident, and ultimately developed into thoracic outlet syndrome. Thereafter, she began experiencing left arm and hand pain and numbness which her treating physician attributes to overuse of her left arm due to her inability to fully use her right arm. She developed symptoms prior to her returning to any work and has been diagnosed as suffering from thoracic outlet syndrome affecting her left arm. Claimant's physician testified that any activities requiring use of her arms causes claimant to overuse her left arm and causes her left arm to deteriorate. In November 1997 claimant went to work in the bakery at County Market in Billings. After 15 weeks her physician took her off work because of problems with both arms. Thereafter, she filed an occupational disease claim with respect to her left arm and her work at County Market. When the claim was denied she filed a petition with the Court. The first insurer (for the right arm) was joined. Held: Claimant's left arm condition is a natural progression of her 1992 industrial injury and the insurer for the 1992 injury is responsible for it. The only physician who addressed the proximate cause criteria of the occupational disease act, § 39-72-408, found that the criteria were not met. While claimant's treating physician did not address the criteria, his testimony supports that determination as it establishes that any sort of activity requiring claimant to use her arms causes deterioration of her left arm condition. Topics: Occupational Disease: Last Injurious Exposure. Where condition develops over a period of years as a natural progression and result of an earlier workers' compensation injury, the insurer for the earlier injury is liable even though part of the progression occurred during subsequent employment.Occupational Disease: Disease. Where condition develops over a period of years as a natural progression and result of an earlier workers' compensation injury, it does not constitute an occupational disease even though part of the progression occurred during subsequent employment.Occupational Disease: Proximate Cause. Where condition develops over a period of years as a natural progression and result of an earlier workers' compensation injury, even though part of the progression occurred during subsequent employment it does not constitute an occupational disease and is the responsibility of the insurer for the earlier injury since the progression was not fairly traceable to the subsequent employment and is not a natural incident of the work or business. § 39-72-408, MCA. Causation: Medical Condition. Where condition develops over a period of years as a natural progression and result of an earlier workers' compensation injury, the insurer for the earlier injury is liable even though part of the progression occurred during subsequent employment.
The trial in this matter commenced on February 1, 2000, in Billings, Montana, but recessed after discussion with counsel. Trial thereafter reconvened on July 5, 2000, after the State Fund was joined as an additional party to this action. Petitioner, Tonette Romero (claimant), was present and represented by Mr. James G. Edmiston. Respondent Liberty Mutual Fire Insurance Company (Liberty) was present and represented by Mr. William J. Mattix. Respondent, State Fund was represented by Mr. Michael P. Heringer and Ms. Lisa Rodeghiero Speare.
Exhibits: Exhibits 1 through 4, 8, 9, 22 through 24, 26, 28, and 29 were admitted without objection. Exhibits 5 through 7, and 10 through 20 were admitted subject to relevancy objections; if considered herein, they are deemed relevant. Ex
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