Laber v. Skaggs Alpha Beta

• Citation: 805 P.2d 1375,247 Mont. 172
• Decision Date: 06 February 1991
• Docket Number: No. 90-461,90-461
• Parties: Cora S. LABER, Petitioner and Appellant, v. SKAGGS ALPHA BETA, d/b/a Buttrey Food and Drug, Employer and Insurer, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1375

805 P.2d 1375

247 Mont. 172

Cora S. LABER, Petitioner and Appellant, v. SKAGGS ALPHA BETA, d/b/a Buttrey Food and Drug, Employer and Insurer, Defendant and Respondent.

No. 90-461.

Supreme Court of Montana.

Submitted on Briefs Dec. 21, 1990.

Decided Feb. 6, 1991.

Denise Ackerman, Billings, for petitioner and appellant.

Chris Mangen and Patricia Karrell, Crowley Law Firm, Billings, for employer and insurer, defendant and respondent.

HARRISON, Judge.

This is an appeal from the Workers' Compensation Court of the State of Montana denying benefits. We affirm.

The following issues are presented by appellant:

1. Whether the Workers' Compensation Court erred in finding that appellant's industrial injury to her left little finger did not result in the aggravation of appellant's carpal tunnel syndrome.

2. Whether the Workers' Compensation Court erred in finding that appellant is not totally disabled as a result of appellant's February 6, 1987 industrial injury to her left little finger.

At the time of the accident, Mrs. Cora Laber, appellant, was 59 years old. Prior to the accident, Mrs. Laber worked in Buttrey's bakery as a sales clerk, hand-wrapper, icer, and cake decorator. On February 6, 1987, while employed at Buttrey Food and Drug in Billings, Montana, Mrs. Laber suffered a compensable injury arising out of, and in the course of, her employment. Mrs. Laber testified that it was about closing time and she was in a hurry and after turning off the bread machine, she did not wait long enough for the motor to stop. As a result, the little finger on her left hand was caught in between moving parts of the machine and the end of her finger was partially crushed. The injury did not involve any other part of her body. On February 9, 1987, the finger was sutured and splinted at a hospital emergency room. The injury was slow healing and her primary treating physician, Dr. Jeffrey Hansen, fused the distal joint on April 15, 1987. Mrs. Laber was to remain off work for four to six weeks and wear a splint at all times. On July 27, 1987, Dr. Hansen reported that Mrs. Laber was experiencing tingling of the extremity; yet, x-rays confirmed a good fusion and he released her to return to work. Dr. Hansen testified that Mrs. Laber had reached maximum healing as of July 27, 1987.

On August 3, 1987 Mrs. Laber returned to full time employment in the Buttrey bakery. Mrs. Laber worked for three weeks until the pain from her hand prevented her from continuing. Her last working day was August 24, 1987. She returned to see Dr. Hansen on August 25, 1987. During the August 25, 1987 examination, Dr. Hansen noted that Mrs. Laber had hand and finger numbness following repetitive use of the extremity and that the extremity had developed sensitivity to cold. Dr. Hansen also noted for the first time that Mrs. Laber had gradually developed carpal tunnel syndrome. Dr. Hansen performed surgery on Mrs. Laber's left wrist on September 9, 1987 to release the carpal tunnel syndrome. The surgical carpal tunnel release improved the numbness in Mrs. Laber's hand, and it decreased her tendency to drop things. However, the surgery did not relieve her sensitivity to cold nor did it improve her grip, and the pain, although temporarily relieved, grew worse. To date, Mrs. Laber has not returned to work.

Mrs. Laber received temporary total disability benefits from February 6, 1987, the date of her injury, until she resumed full time employment on August 3, 1987. When Mrs. Laber ceased working on August 24, 1987, she was returned to temporary total disability benefits until they were terminated on two weeks notice in January of 1988. The record shows that Mrs. Laber has received $8,602.03 in biweekly benefits and the insurer has paid $5,941.90 in medical expenses, of which $1,450.57 were for medical expenses related to her carpal tunnel treatment. Following the termination of benefits, Mrs. Laber contended that the industrial injury to her little finger aggravated her carpal tunnel syndrome which rendered her totally disabled. Mrs. Laber contended that the temporary total benefits were improperly terminated and she petitioned the Workers' Compensation Court to resolve this dispute between herself and her employer, Buttrey Food and Drug of Billings. Following the trial of this matter on May 17, 1989, the hearing examiner determined that Mrs. Laber's carpal tunnel syndrome was not aggravated by her industrial injury and that Mrs. Laber would not be entitled to either temporary total or permanent total disability benefits as a result of her injury to her little finger. On June 7, 1989 the Workers' Compensation Court adopted the decision of the hearing examiner and entered its own Order and Judgment. Mrs. Laber now appeals this judgment.

Mrs. Laber's first assignment of error is with the Workers' Compensation Court's finding of fact that her industrial injury to her left little finger did not aggravate her carpal tunnel syndrome. Mrs. Laber contends that this finding is not supported by substantial credible evidence of the record.

The standard of review is clear. This Court will not substitute its judgment for that of the Workers' Compensation Court where there is substantial credible evidence to support the court's findings of fact. Lakey v. Kerrian's (1987), 228 Mont. 139, 741 P.2d 416. As an additional safeguard, Rule 52(a), M.R.Civ.P., requires that findings of fact shall not be set aside unless clearly erroneous.

Both sides offered expert testimony to prove the extent of the industrial injury. The defendant offered deposition testimony of three physicians; Dr. William Shaw, who specializes in occupational medicine; Dr. Patrick Cahill, a neurologist; and Dr. James Schwarten, an orthopedic surgeon who has a particular interest in hand problems. Dr. William Shaw testified on behalf of the Yellowstone Valley Medical Evaluation Panel. The panel is comprised of Dr. James Schwarten; Dr. Williams, a neurologist; Dr. William Bredehoff, a psychologist; Dan Geiger, a vocational rehabilitation specialist; and Dr. Shaw, himself. Each panel member separately evaluated Mrs. Laber's hand problems. By deposition, Dr. Shaw testified as follows:

We were aware that Dr. Hansen had stated quite explicitly that he felt that the carpal tunnel syndrome was indeed a consequence of the injury to the little finger, and that in his opinion this was a common occurrence. The panel members discussed among themselves whether any of us were aware of such correlation, and none of us were.... We could not say that it had never been reported.... But amongst the three doctors who deal with such things--namely, Dr. Schwarten, Dr. Williams, and myself, none of us had ever heard of such reports.

Dr. Hansen testified by deposition for Mrs. Laber as follows:

Q. Okay. So that in your opinion, the carpal tunnel syndrome was nothing out of the ordinary for this type of injury?

A. [By Dr. Hansen] My feeling is that I would not necessarily expect someone who smashed their small finger to get carpal tunnel syndrome; that is, if I had 10 patients with that injury, I wouldn't expect them all to get carpal tunnel syndrome. But that kind of injury does cause swelling and edema of the hand. The patient is unable to make a fist, which is the only way you can pump the fluid out of the hand. And since they can't make a fist and there is a consequent edema in the hand, it could cause carpal tunnel syndrome. And, if the patient developed carpal tunnel syndrome or they had an exacerbation of a pre-existing carpal tunnel syndrome, that needed medical or surgical treatment, I would clearly attribute it to the injury to the small finger.

During cross, Dr. Hansen testified as follows:

Q. When you released her to return to work on August 3rd, 1987, had she reached maximum medical rehabilitation, in your opinion?

A. [By Dr. Hansen] Yes ... I suppose she'd probably reached as much healing as she would reach, yes.

Q. Okay. At that point there wasn't really any swelling left in the left hand, was there?

A. Not visibly, no.

Q. And it was after a return to work and the repetitive use of her left hand that work involved that she reported to you carpal tunnel which was now at a level that was bothering her, correct?

A. That's correct.

Q. Well, isn't that repetitive use of the hand at least as likely a cause...