Mize v. Mont. State Fund
| Decision Date | 06 May 2020 |
| Docket Number | WCC No. 2018-4297 |
| Citation | 2020 MTWCC 7 |
| Parties | MARYSHAUN MIZE Petitioner v. MONTANA STATE FUND Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner seeks death benefits, asserting that her husband's industrial accident six days before his death was the primary cause of his pulmonary embolism. Respondent denied liability, asserting that Petitioner did not meet her burden of proving that her husband suffered an injury by objective medical findings. In the alternative, Respondent argues that decedent's accident was not the primary cause of his pulmonary embolism.
Held: Petitioner is entitled to death benefits. Petitioner proved with objective medical findings and medical causation opinions that her husband's accident was the primary cause of his pulmonary embolism and resulting death, which is, by itself, an injury under the Workers' Compensation Act. However, because Respondent's denial of liability was reasonable, Petitioner is not entitled to attorney fees or a penalty.
¶ 1 The trial in this matter was held on November 7-8, 2018, in Helena. The parties gave closing arguments on December 6, 2018. Petitioner MaryShaun Mize (MaryShaun) was present and represented by Anthony F. Jackson, Monte D. Beck, and Michael G. Black. Respondent Montana State Fund (State Fund) was represented by Thomas E. Martello and Nick Mazanec.
¶ 2 Exhibits: This Court admitted Exhibits 1 through 12, 15, 18, 19, 21 through 24, 30, 31, 34 through 51, and 53 through 55. Nothing was offered as Exhibits 13, 14, 16, 17, 20, and 52. MaryShaun withdrew Exhibits 25, 26, 32, and 33. This Court sustained State Fund's hearsay objections to Exhibits 27, 28, and 29 and did not admit those exhibits.
¶ 3 Witnesses and Depositions: This Court admitted the depositions of R. James Majxner, MD, John S. Patterson, MD, and MaryShaun Mize. Alan F. Barker, MD, Tracy M. Herman, Robert Ryan Clancy, MD, MaryShaun Mize, KM, AM, Dan Noyes, Kevin Emmelkamp, Laurie Emmelkamp, Kyle Demars, Scott B. Anderson, PhD, and Gina Keltz were sworn and testified at trial.
¶ 4 Issues Presented: This Court restates the issues from the Pretrial Order as follows:
¶ 5 The following facts are established by a preponderance of the evidence.
¶ 6 In the winter of 2016, Donald "Rick" Mize (Rick) was in his mid-fifties. He was moderately healthy. He was overweight at over 240 pounds at 5 feet, 9 inches tall. He had high blood pressure, asthma, and occasional migraine headaches. Rick intermittently saw Randall S.C. Lundgren, DC, to treat low-back pain.
¶ 7 Rick was close to his wife, MaryShaun, and their teenage daughters, AM and KM. Due to Rick's and MaryShaun's busy schedules, and incongruent work schedules, they did not have much time to speak during the work week.
¶ 8 Rick worked for the Montana Department of Transportation (MDT). He was based out of MDT's Big Sky shop. He did the work necessary to maintain highways, including snowplowing. His route was on Highways 64 and 191, south of Belgrade. In the winter, his scheduled shift was from 4:00 a.m. to noon, though he often worked overtime due to the weather. Rick started his winter shifts with a two-hour trip in his snowplow to check and plow the highways. He typically sat uninterrupted in his snowplow for an hour to an hour and a half when plowing.
¶ 9 Rick had two appointments at Lundgren Chiropractic during the first week of February 2016 to address "low[-]back pain after sitting too much in the work trucks." He rated his pain as a 5 on a scale from 0-10 at his first appointment but, by the end of his second appointment, on Friday, February 5, 2016, he was "doing much better." He didnot schedule another appointment because he did not make advance appointments; he called the day he needed treatment.
¶ 10 Around 6:00 a.m. on Monday, February 8, 2016, Rick was in an accident on Highway 191 while driving his snowplow. Unbeknownst to him, the hydraulics that controlled the right-wing plow failed, causing the wing to descend. Consequently, while he was driving around 45 miles per hour, the wing collided with the endplate of a guardrail. The collision deformed the guardrail, tore the wing, and bent and broke several supporting rods and brackets on the truck, all of which were made of steel, and built to withstand the forces of highway snowplowing. The collision caused the snowplow to abruptly decelerate and rotate in a clockwise direction. Rick was thrown, and his body slammed into the interior of the cab.1
¶ 11 Rick regained control of his snowplow, stopped, and looked at the damage to the guardrail. He then drove back to MDT's Big Sky shop, which took approximately an hour. He reported the accident to his supervisor, Dan Noyes. After seeing the damage to the snowplow, Noyes "wasn't too happy with him." Thus, when Rick told Noyes the impact "sure woke [me] up," Noyes snapped back, "Well, you should have been awake before that." Rick did not report any injury to Noyes.
¶ 12 Noyes, Rick, and the MDT's office staff filled out a Risk Management and Tort Defense Report of Incident (Report of Incident), a form required by the State of Montana. It describes the accident as follows:
Rick was down plowing off a drift at the 32.5 mile marker on the south side of the road. Used head plow and wing pushing snow. When Rick was done he lifted up headplow and wing and went down to the pullout at 32.4 and turned around and started heading north back towards Big Sky. Didn't use the headplow or wing any more and was in traveling mode. Did noticed [sic] the wing strobe had quit working again . . . . Traveling around 45 mph andnever had any knowledge that the wing was bleeding down. Hit a ET head at the 38 mile marker going north bound causing damage to the wing and guardrail.
¶ 13 Based on the amount of damage to the snowplow, Noyes was surprised that the damage to the guardrail was not more extensive. Nevertheless, Noyes completed the Supervisor's Investigation Report, stating that the damage to the wing and to the guardrail was "severe."
¶ 14 Noyes and Rick took the snowplow to MDT's Bozeman shop for repair. While at the shop, Rick spoke with Kevin Emmelkamp, an MDT mechanic, and other MDT employees, about the accident.
¶ 15 After his shift, Rick picked up his daughter AM from Sacajawea Middle School. He told her he had a bad day because he had been in an accident at work, which he described as "kind of a rodeo." Rick told AM that the wing hit the guardrail, that his truck spun, that he hit the side of the truck's cab, that his back and leg were really hurting, and that he needed to see his chiropractor.
¶ 16 Rick then picked up his daughter KM from Bozeman High School. Rick also told KM about the crash into the guardrail. Rick told her that he "slammed into the side of the plow" and "messed up his back pretty bad." Rick also complained of leg pain. It was not unusual for Rick to complain of back pain, but KM had never heard him complain about leg pain before, which stood out to her. Rick told KM that he "needed" to see his chiropractor.2
¶ 17 MaryShaun got home around 5:30 p.m., and had a chance to talk to Rick before he went to bed, which was around 7:00 p.m., as he had to wake up at 3:15 a.m. Rick told MaryShaun that he had damaged the wing. He was frustrated because he had previously sent the snowplow to the shop to repair the wing hydraulic, but the mechanics did not fix it. Rick did not tell MaryShaun that the wing had crashed into the guardrail and MaryShaun thought that the wing had just fallen to the pavement.
¶ 18 That night, Rick was suffering from low-back pain. Before he went to bed, he used a TENS unit for the first time in many years.
¶ 19 On Tuesday, February 9, 2016, Rick worked an eight-hour shift and several hours of overtime.
¶ 20 On Wednesday, February 10, 2016, Rick worked an eight-hour shift. That evening, Rick met MaryShaun at church, and told her that he had not had a good day, or a good week, because his back was "killing him." He went home before MaryShaun and was sleeping by the time she got home.
¶ 21 Rick's pain had steadily worsened since his accident. Thus, at 3:15 a.m. on Thursday, February 11, 2016, Rick called in sick to work. MaryShaun woke up and asked him what was wrong. Rick told her that he was "not up to it."
¶ 22 Later that morning, Rick called Lundgren Chiropractic in hopes of getting an appointment that day. He spoke with Tracy Herman, who knew Rick from his prior visits. Herman could tell by Rick's demeanor that something was wrong. Rick told her that he had been in an accident at work, that he was suffering from severe pain, and that he needed to see Dr. Lundgren for an adjustment. Nevertheless, because Dr. Lundgren was completely booked, Herman was not able to get Rick an appointment that day.
¶ 23 That afternoon, Rick picked up AM from school and then picked up MaryShaun from work. On their way to pick up KM, MaryShaun proposed that the family go out to dinner. However, Rick said he felt "like crap" and just wanted to go home and go to bed.
¶ 24 On Friday, February 12, 2016, Rick worked an eight-hour shift. He plowed for his entire shift.
¶ 25 On the morning of Saturday, February 13, 2016, Rick and MaryShaun volunteered at KM's speech and debate tournament. On their way to the school, they stopped to pick up doughnuts, bagels, and coffee for the coaches' room. Rick's back was hurting so much that he could not comfortably lift the coffee containers. Thus, to MaryShaun's and KM's surprise, he asked the coffee...
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Swan v. Mont. State Fund
...44-49. 13. Ford, ¶ 42 (citations omitted) (internal quotation marks omitted). 14. 1997 MTWCC 37. 15. 1997 MTWCC 37. See also Mize v. Mont. State Fund, 2020 MTWCC 7, ¶ 100. For the Montana Supreme Court's interpretation of the prior version of § 39-71-119(5), MCA, see Gaumer v. Mont. Dep't o......