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No.

90-561

IN THE SUPREME COURT OF THE STATE OF MONTANA

LEO BODILY, Petitioner and Appellant, -vsJOHN JUMP TRUCKING, INC., Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Respondent.

APPEAL FROM:

The Workers1 Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Darrell S. Worm; Ogle For Respondent: Richard E. Bach, State Comp. Mutual Ins. Fund, Helena, Montana
&

Worm, Kalispell, Montana

OCT 2 9 1 9 91

Submitted on Briefs:

May 16, 1991

I

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court. Claimant Leo Bodily filed
a

petition

in

the Workers'

Compensation Court to recover disability and medical benefits as a result of injuries he alleged he sustained during the course of his employment with John Jump Trucking, Inc. Following trial before

the court's hearing examiner, the court concluded as a matter of law that claimant failed to give adequate notice of his injury to his employer, as required by 5 39-71-603, MCA (1985), and that claimant's disability did not result from an injury as defined in
5 39-71-119 (1), MCA (1985)

.

From the judgment entered pursuant to We reverse.

those conclusions, claimant appeals.

The issues which control our decision are the following: 1. Did claimant provide his employer with timely notice of

his injury pursuant to 5 39-71-603, MCA (1985)?
2.

Did claimant sustain an injury within the meaning of

5 39-71-119(1), MCA (1985), during the course of his employment

with John Jump Trucking, Inc.?
FACTUAL BACKGROUND

In 1979, prior to his employment with John Jump Trucking (hereinafter referred to as tlJumplt), claimant sustained severe injuries while operating a logging truck when a log rolled off the truck and landed on him. Robert Schimpff, M.D., a board certified neurologist, who treated him at the hospital for that injury, diagnosed hemorrhaging into claimant's cervical spine, a collapsed right lung, fracture of several ribs, fracture of his scapula,

injury to several intervertebral discs in his lower back, internal injuries, and injuries to his right wrist and foot. However, claimant recovered from those injuries sufficiently to go to work for Jump as a logging truck driver in March 1981. He worked for Jump continuously until taking a leave of absence for medical reasons on July 8, 1986. Claimant testified that the only residual impairment that he was aware of from his 1979 accident was some loss of strength in his right arm. However, in December 1985, he began developing loss of strength in his left arm. Over the course of the next six

months, his left-sided symptoms progressed from weakness to muscle spasms, cramps, and numbness in his lower left extremity, as well as his upper left extremity. Claimant testified that by July 8,

1986, he was experiencing terrible neck pain, loss of strength on his left side, and was so impaired by pain medication that he felt it was unsafe for him to continue operating a logging truck on the state's highways. By July 8, 1986, he determined that he could not continue with his employment, and asked his employer for permission to take leave from his job so that he could seek medical treatment for his condition. Claimant testified that prior to leaving work on July 8, 1986, he met with his employer, John Jump, and explained that he felt it was unsafe for him to continue working, due to his physical condition. He testified that he also recalls explaining to Jump

that although he felt reasonably comfortable upon arriving at work,

within a couple of hours after getting into his truck and being exposed to the bouncing around that occurred from operating that truck on logging roads, he could no longer stand the pain. When

the pain developed he was forced to take Tylenol I11 with codeine. After taking leave from his employment, claimant went to the Veteran's Administration Center at Fort Harrison to be examined in an effort to determine the cause of his complaints. However, the VA Center had no neurology department, and therefore, put him on a waiting list for an examination at the Veteran's Administration Center in Salt Lake City, Utah. He was accepted at the VA Center

in Salt Lake City on about July 21, 1986, and was discharged on August 5, 1986. unable to However, the physicians at the VA Center were the physiological basis for claimant's

explain

complaints, and speculated that they may result from nerve root irritation or multiple sclerosis. Claimant's multiple sclerosis

had been diagnosed in 1969 and periodically through the years he had experienced neurological problems which he attributed to that condition. Claimant testified that shortly after he returned from Salt Lake City he arranged to meet his employer at a restaurant to explain what he had learned about his condition, and to discuss a date for returning to work. He testified that during that meeting

he explained to Jump that he did not know the cause of his symptoms, but had been advised to rest, exercise, and try to rebuild his strength. Claimant testified that he explained to his

employer at that time that in his opinion if he returned to his job his condition would worsen. John Jump testified that he recalled claimant taking time off from work in July 1986, and assumed that he had been given notice by claimant of the fact that he would not be coming to work and the reasons for his absence. However, he testified that he had no

specific recollection of the explanation given to him by claimant for claimant's leave of absence. He also recalled having a

conversation with claimant in a cafe after his return from Salt Lake City, but conversation. could not recall what was said during that

He had no recollection of having been advised by

claimant that he was having physical problems related to the performance of his job. claimant discussed those However, he was unable to deny that problems based on any specific

recollection of his conversations with the claimant. During his absence from employment, claimant testified that he was unable to rebuild the strength in either arm, but that the pain he had been experiencing while working subsided and that he eventually ran out of money. He called his employer and asked to

return to work with a reduced work load. He did return to work on October 22, 1986. For the first month after returning to work, claimant was given easier jobs which did not involve operating a logging truck on logging roads. His routes were limited to highway hauls, which did not involve as much jarring and jostling of his spine.

However, after returning to his normal duties, his physical condition became progressively worse and the pain which he had experienced prior to July 8, 1986, returned. Claimant testified that during spring break-up in 1987 he again explained to his employer that a few hours after getting into and operating his truck, his pain would become intolerable. He

testified that at that point he and Jump agreed that he could begin seeing a chiropractor for his neck pain. However, in spite of his

efforts to obtain further treatment, claimant testified that by June 30, 1987, his left leg started to go numb while at work, and by the time he returned home his body had gone numb from the waist down. He remained in that condition until he terminated his

employment with Jump in August 1987. Claimant testified that when his symptoms would worsen they would do so quickly. For example, when he lost strength in his When he lost

left arm, that development occurred overnight.

sensation in his left leg and lower body, that development occurred in the course of 24 hours. When pain would develop during the

course of his employment, it would develop within hours after getting into and operating his logging truck. On August 4, 1987, claimant returned to Dr. Schimpff who felt that, because of the earlier hemorrhaging in the area of claimant's spinal cord, further neurological evaluation was warranted.

Eventually, diagnostic studies illustrated arthritic development and stenosis in the area of claimant's cervical spine which was

compressing or displacing his spinal cord.

It was Dr. Schimpffts

opinion that the condition for which he examined claimant in August
1987 was the same condition from which claimant was suffering when

he left work and sought treatment on July 8, 1986.

Dr. Schimpff

testified that in his opinion the original injury that had occurred in 1979 predisposed claimant to degenerative changes in his cervical spine which were accelerated by the repeated trauma to the spine associated with his activities driving a logging truck. was also Dr. Schimpff's It

opinion that without the traumas caused

during the course of claimant's occupation, the cervical stenosis which was responsible for his neurological symptoms may never have occurred, or would probably have occurred years later than it did develop. Dr. Schimpff described the impact caused by claimantt s

occupation as repetitive trauma which accelerated the degenerative changes in claimant's spine. He described the jolting and jarring that claimant experienced as a logging truck driver as small injuries which cumulatively became a substantial injury. Dr. Schimpff also testified that, while the further

degeneration of claimant's spine occurred over the entire period that he worked for his employer, the onset of disabling symptoms from that physical condition could have occurred relatively

suddenly.

As a result of his diagnosis, Dr. Schimpff referred claimant to Albert Joern, M. D., a neurosurgeon. Dr. Joern first examined

claimant on September 14, 1987, and on September 18 of the same year, admitted claimant to the hospital where he performed a cervical discectomy and claimant's cervical spine. Based upon what he found when he performed that surgery, and based upon his review of claimant's diagnostic studies, it was also Dr. Joern's opinion that the condition for which he operated on interbody fusion at three levels of

claimant was related to his employment as a logging truck driver. Dr. Joern explained that during his operation he observed severe degeneration at three levels of the cervical spine, but that films which were taken of claimant's neck in 1979 showed no such disc damage. From that he was able to conclude that between 1981 and

1987 these discs herniated. Dr. Joern explained that, in his opinion, claimant had an injury to his neck in 1979 which did not produce a herniation, but which produced weakness or some internal disruption; and that due to claimant's subsequent employment which involved bouncing around in a logging truck day after day, his neck was subjected to repeated stresses. He testified that through a cumulative

traumatic process over a period of three to four years those discs were caused to bulge, scar down, calcify, and stabilize. In his

opinion, the primary occupational factor that ultimately made

surgery necessary for claimant was the bouncing associated with operating a logging truck over logging roads. It was Dr. Joernfs opinion, however, that the symptoms associated with claimantfsworsened neurological condition appeared to have developed from late 1985 through mid-1986 when claimant presented at the VA Hospital with neurological impairment. By the time Dr. Joern saw claimant in 1987, he considered his condition a medical emergency. On November 17, 1987, claimant filed his claim for

compensation, alleging that he had been injured during the course of his employment and setting forth July 6, 1986, as the date of his injury. The Workersr Compensation Court's specific, but not significantly findings of fact were less from those facts

different

previously set forth in this opinion.

However, that court

concluded that as a matter of law the information given by claimant to his employer was not sufficient to satisfy the notice

requirement of 5 39-71-603, MCA (1985). The Workersf Compensation Court concluded that there was not a statement by claimant to his employer of an injury related to his job which was sufficient to notify a reasonably prudent employer that there may be a potential compensation claim. The Workersr Compensation Court further concluded that

claimant did not suffer an injury as defined in 5 39-71-119(1),
MCA, because the period of time over which the injury occurred

lacked sufficient time definiteness to qualify as an injury according to the previous decisions of this Court.

Did claimant provide his employer with timely notice of his injury pursuant to 5 39-71-603, MCA (1985)? The notice requirement in effect at the time of claimant's injury was

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