Kirk v. Fund

Decision Date06 June 2016
Docket NumberWCC No. 2015-3689
Citation2016 MTWCC 9
CourtMontana Workers Compensation Court

Summary: Respondent moves for summary judgment, arguing that Petitioner does not have sufficient evidence to prove he suffered an industrial injury on May 15, 2015. Petitioner opposes the motion on the grounds that there are material issues of fact.

Held: Respondent's motion for summary judgment is denied because Petitioner presents a genuine issue of material fact as to whether he incurred a work-related lumbar sprain/strain on May 15, 2015.

¶ 1 Respondent Montana Contractors Compensation Fund (MCCF) moves for summary judgment on the grounds that Petitioner Chance Kirk does not have sufficient evidence to prove he suffered an industrial injury. Kirk opposes the motion on the grounds that there are issues of material fact, and that MCCF is not applying the correct legal standard for proving causation.

¶ 2 This Court held a hearing on June 15, 2016. Oliver H. Goe represented Respondent MCCF. Norman L. Newhall represented Petitioner Chance Kirk.


¶ 3 Kirk worked as a concrete finisher for Knife River Concrete in the spring of 2015.

¶ 4 Except for "normal stiffness following a long day of hard work," Kirk had not experienced low back pain before Friday, May 15, 2015. On that day, Kirk experienced a stiff back when driving his truck home after work and sharp lower-back pain when he got out of his truck. He did not go to a doctor that weekend, as he thought he would get better.

¶ 5 On May 18, 2015, Kirk's back began to hurt while raking concrete. He worked until he could not tolerate the pain, and reported the injury to a co-worker and foreman.

¶ 6 Kirk did not return to work after May 18, 2015.

¶ 7 A supervisor took Kirk to see Michael Layman, MD, at Belgrade Urgent Care on May 19, 2015. Dr. Layman set forth the history as follows:

The patient presents with a chief complaint of constant ds /hurt back since Fri[day], May 15, 2015. Context: The patient reports it was the result of an injury. At the end of the work day on Friday his back stiffened up on the ride home and he had right sided lower back pain. No pain during the course of the work day. Symptoms persisted through the weekend[.]1

Dr. Layman noted that Kirk was "walking slowly" and had an "altered gait and posture." In the physical examination portion of his record, Dr. Layman noted "spasm/tenderness" of paraspinal muscles and tenderness of the lumbar spine and muscles. Dr. Layman diagnosed Kirk with a "[s]prain/[s]train [of the] [l]umbar [r]egion." Dr. Layman referred Kirk to physical therapy and imposed work restrictions including no lifting over 20 pounds; no bending, kneeling, or squatting; and no standing or walking a greater duration than four hours per day. Dr. Layman recommended Kirk take ibuprofen for pain and inflammation.

¶ 8 Kirk began a course of physical therapy on May 20, 2015. Kirk reported that he had pain radiating down his right leg and into his right foot. Megan E. Hoover, DPT, noted "significant inflammation through back musculature, nervous system and spine."

¶ 9 Kirk returned for his second physical therapy appointment on May 22, 2015. Following the therapy, Hoover wrote a letter to Dr. Layman stating that Kirk's symptoms were worse. She suggested to discontinue physical therapy "until pain controlled [and patient is] willing to participate."

¶ 10 Kirk returned to Dr. Layman for a follow-up on May 24, 2015. Dr. Layman set forth the history that Kirk injured himself while "raking mud." Kirk reported that his pain was worse, and that he had pain radiating into his left leg. Dr. Layman again noted "spasm/tenderness" in Kirk's paraspinal muscles, and tenderness in Kirk's lumbar spine. Dr. Layman again diagnosed a lumbar sprain/strain. Due to the worsening condition, and per Kirk's request, Dr. Layman prescribed oxycodone and Flexeril. Dr. Layman ordered an MRI "to determine if there is an underlying disc problem."

¶ 11 On May 28, 2015, Kirk returned to physical therapy. However, due to "[p]oor tolerance for any treatment intervention, position or exercise," Hoover put a hold on therapy until Kirk could "manage pain" and would be willing to participate.

¶ 12 MCCF authorized the MRI under a reservation of rights on June 2, 2015.

¶ 13 On June 2, 2015, Kirk returned to Dr. Layman, who maintained his original diagnosis and released Kirk from work until a scheduled re-evaluation on June 8, 2015.

¶ 14 Kirk underwent an MRI on June 3, 2015. The MRI revealed a L4-L5 shallow annular disc bulge and small annular tear, and a L5-S1 shallow annular disc bulge and bilateral foraminal narrowing with encroachment on both exiting nerve roots.

¶ 15 MCCF began paying Kirk benefits on June 12, 2015, under § 39-71-608, MCA.

¶ 16 On August 10, 2015, MCCF sent Kirk to an IME with Scott K. Ross, MD. Dr. Ross was unable to complete his physical examination, as Dr. Ross and Kirk had a disagreement about the examination. However, Dr. Ross opined that Kirk's work on May 15, 2015, did not cause the changes seen on the MRI:

Of note, the June 3, 2015 lumbar spine MRI report documents degenerative disc disease/spondylosis of the lumbar spine (i.e. facet hypertrophy, ligamentum flavum hypertrophy, synovial cysts related to facet degeneration, disc desiccation, annular disc bulges/annular tear). These degenerative, spondylotic changes are pre-existing and not, on a more probable than not basis, attributable to the May 15, 2015 work incident.

¶ 17 Following the MRI and incomplete IME with Dr. Ross, MCCF deemed Kirk's claim to be "fully denied," and terminated all benefits.

¶ 18 On referral from his attorneys, Kirk saw Greg Vanichkachorn, MD, for an IME on February 29, 2016. Dr. Vanichkachorn physically examined Kirk and reviewed his medical records. Dr. Vanichkachorn diagnosed, "Nonspecific low back pain - ongoing, not work injury related." In response to a question as to what objective findings support his diagnosis, Dr. Vanichkachorn stated:

There are no objective findings appreciated on examination that shed insight into the examinee's diagnosis. Objective findings from imaging include multilevel degenerative changes resulting in some foraminal stenosis. However, these changes can be age-related. Moreover, I would not expect such changes to develop following an acute injury. Overall, the relationship of these MRI findings to the examinee's pain is nebulous at best.

Dr. Vanichkachorn also stated, "I am unfortunately unable to relate Mr. Kirk's current symptoms to any work injury occurring on or near May 15, 2015." Dr. Vanichkachorn stated, "At this time, I have no objective indications to state that the examinee would not be able to work full duty."

¶ 19 Kirk continues to suffer "significant low back pain," which radiates into his legs. He avers that the "pain can be so great that [he is] unable to perform even regular daily activities."


¶ 20 This case is governed by the 2013 version of the Montana Workers' Compensation Act since that was the law in effect at the time of Kirk's alleged industrial accident.2

¶ 21 The Montana Supreme Court has explained:

[A]t the summary judgment stage, the court does not make findings of fact, weigh the evidence, choose one disputed fact over another, or assess the credibility of witnesses. Rather, the court examines the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine whether there is a genuine issue as to any material fact relating to the legal issues raised and, if there is not, whether the moving party is entitled to judgment as a matter of law on the undisputed facts.3

When examining the evidence, the court is to draw all reasonable inferences in favor of the party opposing summary judgment.4

¶ 22 The dispute in this case is whether Kirk suffered an industrial injury on May 15, 2015. Relying on Dr. Layman's records and his MRI, Kirk contends that he suffered a lumbar strain/strain and a disc bulge and annular tear at L4-L5, and a disc bulge at L5-S1. MCCF argues that there is insufficient evidence for this Court to find that Kirk suffered any injury on May 15, 2015.

¶ 23 Section 39-71-119(1)(a), MCA, defines "injury" and "injured," in relevant part, as: "internal or external physical harm to the body that is established by objective medical findings . . . ." Subsection (2) of this statute states:

(2) An injury is caused by an accident. An accident is:
(a) an unexpected traumatic incident or unusual strain;(b) identifiable by time and place of occurrence;
(c) identifiable by member or part of the body affected; and
(d) caused by a specific event on a single day or during a single work shift.

¶ 24 Section 39-71-407(3), MCA, provides:

(3) (a) An insurer is liable for an injury, as defined in 39-71-119, only if the injury is established by objective medical findings and if the claimant establishes that it is more probable than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury has occurred and aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury aggravated a preexisting condition is not sufficient to establish liability.

¶ 25 Objective medical findings must be established for an employee to receive benefits. Section 39-71-407(10), MCA, states:

An employee is not eligible for benefits payable under this chapter unless the entitlement to benefits is established by objective medical findings that contain sufficient factual and historical information concerning the relationship of the worker's condition to the original injury.

Further, § 39-71-116(22), MCA, defines "objective medical findings" as "medical evidence, including range of motion, atrophy, muscle strength, muscle spasm, or other diagnostic evidence, substantiated by clinical findings."

¶ 26 The ...

To continue reading

Request your trial
3 cases
  • Lunday v. Northwest
    • United States
    • Montana Workers Compensation Court
    • December 6, 2017
    ...Kjono's credentials with the physician's credentials at trial, this Court cannot do so at this stage.13¶ 30 Liberty also cites Gary v. Montana State Fund,14 and argues that Kjono's opinion is insufficient to create an issue of fact because he did not explain the "mechanism of causation." In......
  • Dargin v. XL Ins. of Am.
    • United States
    • Montana Workers Compensation Court
    • May 26, 2020
    ...and a causal connection between the accident and the injury on the "more probable than not" standard). 19. See, e.g., Kirk v. Mont. Contractor Comp. Fund, 2016 MTWCC 9, ¶ 21 (citation omitted). 20. See EBI/Orion Grp. v. Blythe, 281 Mont. 50, 56-57, 931 P.2d 38, 42 (1997) (citation ...
  • Monroe v. MACO Workers Comp Tr.
    • United States
    • Montana Workers Compensation Court
    • June 19, 2020
    ...Shepard, 219 Mont. at 128-29, 710 P.2d at 1358). 36. Moreau II, 2018 MT 1, ¶¶ 17-19. 37. Supra note 5. 38. See, e.g., Kirk v. Mont. Contractors Comp. Fund, 2016 MTWCC 9, ¶ 21 (citation omitted). 39. Supra note 5. 40. Monroe II, No. 2015-3560 (Workers' Comp. Ct. May 15, 2017) (Order Den. Pet......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT