Shepard v. Midland Foods, Inc.
| Decision Date | 19 July 1983 |
| Docket Number | No. 82-395,82-395 |
| Citation | 666 P.2d 758,40 St.Rep. 1177,205 Mont. 146 |
| Parties | Dee SHEPARD, Claimant and Appellant, v. MIDLAND FOODS, INCORPORATED, Employer, and Glacier General Assurance Company, Defendants and Respondents. |
| Court | Montana Supreme Court |
Halverson & Sheehy, William T. Kelly, Billings, for claimant and appellant.
Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendants and respondents.
Claimant Shepard appeals from a decision of the Workers' Compensation Court that he was ineligible for further benefits. We reverse the Workers' Compensation Court, and remand for a determination of compensation due, as well as fees, costs and penalties, if any.
Claimant presents half a dozen issues for review. The following issues are dispositive:
1. Whether there was substantial evidence to support the Workers' Compensation Court's determination that claimant's knees had deteriorated (and eventually collapsed) because of other than work related reasons.
2. Whether there was substantial evidence to support the Workers' Compensation Court's determination that claimant had recovered from his February 14, 1980 industrial accident by February 25, 1980, when he returned to work.
Dee Shepard, the claimant, has been a general laborer all his working life. In September of 1973, he was hired by Midland Foods, Inc. (Midland). His job involved very heavy work cleaning the boning room and beef coolers in a packing plant. For six and one-half years, claimant routinely lifted garbage cans and tubs containing meat scraps and bones which weighed several hundred pounds. He jacked up and hauled away racks of meat weighing half a ton to a ton. He washed the boning rooms and coolers, squatting, kneeling and stooping for hours at a time, while pulling heavy hoses and machinery. He lifted garbage cans full of ice. He jumped on and off a four-foot-high table he had to clean. Mr. Shepard is a stocky man, 5' 4 1/2"' tall, whose weight has fluctuated between 155 and 205 lbs. over the last decade. His favorite hobby, up until he was 50 or 52 years old, was weightlifting. At 50 years of age, he could lift 500 lbs. He stopped weightlifting about 1969.
In 1972, Mr. Shepard began having pain in his knees. His doctor diagnosed the condition as degenerative arthritis and chondrocalcinosis. Doctors testifying in this case described the first condition as a relentlessly progressive disease involving the wearing away of the cartilage lining of a joint, accompanied by pain, bony changes and some bone deformation. The condition generally takes years to develop into an advanced stage and is not reversible. It is aggravated, and the accompanying degeneration of joints and bones is accelerated, by weightbearing, obesity and trauma. The doctors described chondrocalcinosis as the existence of calcium crystal deposits in the joints. The deposits sometimes break free and cause episodes of severe pain and swelling known as "pseudogout." Pseudogout is treatable with anti-inflammatory drugs. Chondrocalcinosis and pseudogout do not cause instability or degenerative changes in the bone. They are neither caused nor aggravated by heavy lifting. In fact, pseudogout may flare up during periods of inactivity, as the record shows it did for Dee Shepard.
The physician attending Mr. Shepard in 1972 (Dr. Flynn) noted that an x-ray of the left knee showed changes in the cartilage and bone consistent with advanced degenerative arthritic change. He noted, "I cannot see any fracture or dislocation in the left knee." During the next eight years, claimant experienced several episodes of pain and swelling and some instability in his knees. Doctors treated him by draining synovial fluid and injecting cortisone into the knee. In 1975, when Mr. Shepard was hospitalized for a heart attack, "minimal varus deformity," or slight bowleggedness, was noted by a Dr. Hull in both of Mr. Shepard's knees. This condition is also consistent with degenerative arthritis. From September of 1973 on, Mr. Shepard performed the extremely heavy work required by his job with Midland. By 1977, he was walking with a limp.
On February 14, 1980, Mr. Shepard slipped on an icy step at work and fell, twisting his left knee and striking it sharply against the edge of the step. His knee was numbed by the blow but gradually became very painful. Mr. Shepard completed his shift, then went to the St. Vincent's Hospital emergency room in Billings, where his knee was x-rayed and his leg put in a strap-on cast. Within a few days, claimant visited Dr. Taylor, who fitted him with a hinged leather lace-up brace and crutches. The brace was required to keep Mr. Shepard's left knee from "popping out," or dislocating. He wore the brace for approximately a year, and used the crutches for two months longer.
Mr. Shepard received temporary total disability benefits until he returned to his job on February 25, 1980, a period of ten days. He testified that working after February 25 was extremely painful for him, and that he began to experience difficulties with his right knee as well:
On April 10, 1980, on the advice of Dr. Taylor, Dee Shepard retired. Dr. Taylor's case notes on Mr. Shepard, dated April 10, 1980, state, "His knees have collapsed." A subsequent letter from Dr. Taylor to claimant's attorney, dated June 15, 1981, states in pertinent part:
"I would say there was aggravation of a knee problem with the accident of Feb. 14, 1980 ... His knee problem is presumed to be quite a long term, very chronic, kind of dysfunction, and I would consider the percent of aggravation ... to be very small as regards the Feb. 14, 1980 incident."
Dr. Griffin examined Mr. Shepard in December of 1981. He noted that x-rays showed significant degenerative changes in Mr. Shepard's knees since 1972, and found "rather remarkable [varus] deformity." (bowleggedness) Dr. Griffin testified that such a deformity Dr. Griffin also stated that while Mr. Shepard's weightlifting hobby could explain the changes evident in 1972, it could not be considered the only possible cause, and that weightbearing, along with obesity and trauma would accelerate the degeneration of the cartilage and the joints.
Dr. Taylor, Mr. Shepard's attending physician after the February 14, 1980 accident, stated that he was "not very impressed with the specific incident as the main problem." He described Mr. Shepard's knees as "disaster knees," which, due to a longstanding condition of degenerative arthritis had deteriorated by 1980 to the point that they would respond to nothing but fusion, or the more preferable total knee replacement. Dr. Taylor noted that the February 1980 x-rays indicated "multiple knee injuries [and] many, many subluxations" or small dislocations in both knees. He stated that, although the industrial accident was an aggravant, he did not consider it the major cause of damage to Mr. Shepard's joints, not the kind of thing which takes the arthritic person to his "crippling end." The weightbearing and activity associated with day-to-day living aggravated the condition. Dr. Taylor stated that Mr. Shepard's knee deterioration would have resulted in his forced retirement within a short period. He also stated:
"The job that you described to me, that was described to me that Mr. Shepard did at Midland Pack, I am sure would be an accelerant."
Upon Mr. Shepard's retirement he sought, and was denied, permanent total disability benefits. He petitioned the Workers' Compensation Court for a hearing, which was held November 18, 1981. The Workers' Compensation Court issued its findings of fact, conclusions of law and judgment on September 14, 1982 denying benefits, costs, fees and penalties. Mr. Shepard appeals.
Mr. Shepard argues that both his work for Midland and the February 14, 1980 accident at work aggravated his underlying condition of degenerative arthritis, accelerating the approach of his eventual breakdown and total disability. He argues that the Workers' Compensation Court erred in its conclusion that the condition of his knees had deteriorated because of other than work-related reasons. We agree.
Uncontested evidence established that Mr. Shepard's degenerative arthritis was a pre-existing condition which had been diagnosed prior to his beginning work at Midland.
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