McAndrews v. Schwartz

• Decision Date: 10 July 1974
• Docket Number: No. 12603,12603
• Citation: 31 St.Rep. 517,523 P.2d 1379,164 Mont. 402
• Parties: Patricia I. McANDREWS, Claimant and Respondent, v. Joseph SCHWARTZ et al., Employer and Appellants, v. GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1379

523 P.2d 1379

164 Mont. 402

Patricia I. McANDREWS, Claimant and Respondent, v. Joseph SCHWARTZ et al., Employer and Appellants, v. GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant.

No. 12603.

Supreme Court of Montana.

Submitted April 25, 1974.

Decided July 10, 1974.

Norman C. Robb argued, Missoula, for appellants.

Scanlon, Brolin & Connors, Jack M. Scanlon argued, Anaconda, for respondent.

CASTLES, Justice.

This is a workmen's compensation action arising out of an accident suffered by claimant Patricia I. McAndrews on June 25, 1970 while employed as a sales clerk or checker by Schwartz Department Store in Anaconda, Montana.

At closing time on June 25, 1970 she was looking for a pair of slippers for a customer. She had to go up a ladder to find the slippers, and was a step or two up the ladder when she slipped and fell, or the ladder slipped from under her. She struck her right ribs on the ladder when she fell and her left shoulder hit the floor.

On the date of the injury claimant was paid $2.02 per hour and she worked 8 hours per day, 5 days a week. She was married but had no dependent children.

As the accident occurred at closing time claimant went home and wrapped a towel around her ribs. She worked all the following day June 26th, but that night her ribs hurt so she called Dr. Donald Good. The doctor saw her at the hospital emergency room on the evening of June 26. Her ribs were X-rayed and she was given a rib corset to wear. At that time her only complaint of injury was her ribs.

Claimant McAndrews filed a claim for compensation with the Workmen's Compensation Division, hereinafter called the Division. Glacier General Assurance Company was the workmen's compensation carrier for Schwartz. Glacier accepted the claim and paid McAndrews temporary total compensation benefits at her lawful rates in the amount of $2,609 for the period from June 26, 1970 through October 7, 1971, a period of 67 weeks. Glacier also paid doctor, hospital and medical expenses for claimant in the sum of $4,934.90.

In the spring of 1971 McAndrews suffered another accident, which was a nonindustrial accident, when she fell in the parking lot at her apartment.

On October 27, 1971, claimant was found to have a condition known as arteriosclerosis obliterans of her right common femoral artery. On December 1, 1971, Dr. J. R. Sims performed a surgical procedure known as an endarterctom and sympathectomy to relieve the arteriosclerosis obliterans in the femoral artery. The operation was performed at St. Peter's Hospital in Helena. The medical expense for Dr. Sims' care and the operation amounted to $4,448.55.

On April 5, 1972, a hearing was held before a Division hearing officer to determine (1) the nature and extent of the injuries sustained by claimant in the June 25, 1970 industrial accident, (2) the date the healing period ended for the injuries she sustained in that accident, (3) the nature and extent of the impairment or disability, if any, suffered by her in that accident, (4) whether claimant was entitled to any further compensation and, if so, the amount and extent thereof, and (5) whether there were any unpaid medical expenses connected with the injuries she sustained on June 25, 1970. McAndrews and Dr Donald Good, her attending physician for the injuries she received in the June 25 accident, testified at the hearing.

The Division's hearing officer made and entered his findings of fact and conclusions of law on September 18, 1972. The Division then entered an order dated September 26, 1972 awarding compensation, and adopting the hearing officer's findings and conclusions which in effect found that: (1) the injuries sustained by McAndrews in the June 25, 1970 accident were a fracture to her right ninth rib and some possible low back injury; (2) the healing period for her industrial accident injuries ended in October 1971; as a result of her low back injury McAndrews had an impairment of 5% to 10% of the body as a whole; (4) in addition to the compensation previously paid to her for and during the period from June 26, 1970 through October 7, 1971, McAndrews was entitled to a further award of 75 weeks of compensation at the rate of $37 per week to be paid as follows: that 50 weeks for the period of October 8, 1971 through September 21, 1972 be paid in a lump sum of $1,850 and McAndrews be retained on compensation for the remaining 25 weeks based on a showing of loss of earning capacity; (5) the condition of arteriosclerosis obliterans was not proximately caused by the June 25, 1970 accident and her right leg problem resulting therefrom was not a proximate result of the accident; and (6) Glacier was not responsible for the doctor, hospital and medical expenses incurred by McAndrews for treatment of the arteriosclerosis obliterans.

McAndrews requested a rehearing before the Division and was denied. She then appealed to the district court where a hearing or trial was held on March 16, 1973. McAndrews and Dr. J. R. Sims testified. On June 19, 1973, the district court entered findings of fact and conclusions of law which reversed the findings, conclusions and order of the Division. It concluded: (1) that the condition of arteriosclerosis obliterans and claimant's right leg problems resulting therefrom were proximately caused by the June 25, 1970 accident; (2) that her healing period ended on March 21, 1972, rather than in October 1971; (3) awarded her compensation in the amount of $888 for the period of October 7, 1971 through March 21, 1972; (4) that claimant had a 20% impairment rather than a 5% to 10% impairment as found by the Division; (5) awarded McAndrews a further award of 100 weeks of compensation at $37 per week, payable in a lump sum of $37 per and (6) ordered Glacier to pay the medical bills and expenses incurred by McAndrews because of the arteriosclerosis obliterans. Judgment was entered accordingly on June 21, 1973.

Glacier and Schwartz filed motions requesting the court to amend its findings of fact and conclusions or in the alternative to grant them a new trial. The court denied both motions by order dated July 11, 1973. Schwartz and Glacier appeal from the judgment and order denying their motions.

Glacier has paid McAndrews the $1,850 lump sum compensation award ordered by the Division in its September 26, 1972 order awarding compensation.

Other more detailed facts pertinent to the case also appear:

Dr. Good continued to care for and treat McAndrews. In addition to the June 26, 1970 examination at the hospital emergency room, he saw, examined and treated her on June 29, July 3, 7, 27, 30 and 31 of 1970. At all of these visits and examinations McAndrews' only complaints and symptoms were that she had pain in the right rib cage and the doctor treated her for that. Dr. Good testified he took a medical history from McAndrews on June 29, 1970 and he took notes and kept records of her complaints and symptoms on each time he subsequently saw her. He testified that during the period from June 26, 1970 through August 27, 1970 McAndrews did not complain to him of any injury to, pain in, or difficulty with her right leg or low back. He testified her symptoms and complaints of pain were those which people with a fractured rib usually have.

He further testified that at an office visit on August 28, 1970, McAndrews for the first time complained of pain and weakness in her right leg and low back. On that date he examined her right leg and back and found her complaints symptomatic of a sacroiliac strain or a possible herniated disc. On August 28, 1970, Dr. Good also checked for and found a normal pulse in her right leg. He thought at that time that a myelogram should perhaps be performed to check out the possibility of a herniated disc, but he first wanted to treat her back and right leg complaints conservatively with traction, drugs, physical therapy, etc. He put her in the Community Hospital in Anaconda for the period of September 3 to September 24, 1970 for a course of traction on her right leg. The traction was beneficial but due to an allergy McAndrews had difficulty with the traction.

Dr. Good continued to see her and on September 29, 1970 she was still complaining of pain in her right leg and back so he put her in a lumbo-sacral belt. On October 15, 1970 Dr. Good put McAndrews back in the hospital for pneumonia and pleurisy which were not related to or caused by the June 25, 1970 accident. She remained in the hospital until October 22, 1970 and while there she had periodic complaints of low back and leg pain so Dr. Good treated these complaints by giving her benemide and physiotherapy.

McAndrews continued to complain of low back and right leg pain so on November 18, 1970 Dr. Good again put her in the hospital for 10 days for a course of pelvic traction to treat the sacroiliac strain.

On January 29, 1971 Dr. Good again examined McAndrews' leg and back and at that time decided she should have a myelogram to check out the possibility of a herniated disc. Dr. Good sent her to Dr. John Davidson, an orthopedic specialist in Butte, for the myelogram. Dr. Davidson put claimant in a Butte hospital for 8 days from February 2 to February 10, 1971, during which time a myelogram was performed and she had a course of physical therapy. The myelogram was negative in that it showed she had an entirely normal spinal canal. She improved a great deal with the physical therapy.

Although the myelogram was negative, Dr. Good made arrangements for McAndrews to be examined by Dr. Alexander Johnson, a neurosurgeon in Great Falls, to double check on the possibility of a herniated disc and to determine whether his diagnosis of a sacroiliac strain as the cause of her low back and right leg complaints was correct. Dr. Johnson examined McAndrews on April 15, 1971 and concluded that she had: (1) a sacroiliac joint disease, possibly of a rheumatoid nature, and (2) atypical radicular symptoms, which he felt...