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Mattingly v. Transwest Trucks, Inc., W. C. Nos. 4-404-249 4-442-133 (2001)

Industrial Claim Appeals Office

Final Order
 
Diana Mattingly hired Mr. Simon to ensure that she received the workers’ compensation medical benefits that she want entitled. Mr. Simon assured that Ms. Mattingly received the benefits, regardless of which workers’ compensation carrier was responsible.  
 
Ms. Mattingly worked as a “counter person” for Transwest Trucks Incorporated (Transwest). Her her primary duty was to “pull parts,” which involved lifting up to 60 pounds. In the summer of 1996, Ms. Mattingly started to experience pain in her upper extremities, and in January 1997 she was diagnosed with thoracic outlet syndrome (TOS). However, before her TOS diagnosis, but after the onset of her symptoms, Ms. Mattingly was transferred to the “phone room” where she was required to reach above her head to lift up to five pounds.
 
In early 1997, Dr. Sanders performed surgery on Ms. Mattingly to relieve her TOS symptoms. After initial relief, her symptoms returned and a second surgery was performed in November 1998. After the second surgery, Ms. Mattingly was released with restrictions which prohibited overhead reaching and lifting more than ten pounds, and required her to wear a headset while answering the phone. Unfortunately, the second surgery did not cure all of Ms. Mattingly’s symptoms, and a third surgery was performed in August 1999.
 
The claim was overly complicated due to the host of workers’ compensation insurers contracted by Transwest during Ms. Mattingly’s surgery schedule. Liberty Mutual (Liberty) insured Transwest from 1999 through March 31, 1998. Hartford Casualty Company insured Transwest from April 1, 1998, through March 31. 1999. Finally, Wausua Insurance Companies (Wausua) insured Transwest thereafter.    
 
Liberty mutual argued that Ms. Mattingly sustained a last injurious exposure and substantial permanent aggravation of her occupational TOS after it no longer insured Transwest. The administrative law judge (ALJ) rejected Liberty’s argument, and found that the second and third surgeries were performed because of damage done before the first surgery (when Liberty insured Transwest) and because the second surgery was unsuccessful. Further, the ALJ found the strenuous activities performed, while Liberty was liable, as a “part puller” caused Ms. Mattingly’s occupational disease. The ALJ ordered Liberty to pay temporary disability benefits, medical benefits, and permanent partial disability benefits based on a twenty percent whole person impairment rating.
 
On appeal, Liberty contended that the ALJ erred by not considering whether Ms. Mattingly sustained a last injurious exposure and substantial permanent aggravation after Liberty was no longer liable between the first and second surgeries. Primarily, Liberty argued that during the time when Hartford was liable, Ms. Mattingly experienced symptoms while reaching overhead in the phone room and after the second surgery, Dr. Sanders placed heavier restrictions.
 
The Industrial Claim Appeals Office (the Panel) found ample support in the record to affirm the ALJ’s conclusion that Ms. Mattingly did not sustain a last injurious exposure to TOS at anytime after Liberty’s termination as Transwest’s insurer. The Panel stated that Ms. Mattingly was not exposed to any of the type of pushing or pulling which caused her TOS after the first surgery. Therefore, regardless of the duration of work inside the phone room, the ALJ’s refusal to impose liability on Hartford was supported by the record.
 
Further, the Panel upheld the ALJ’s findings that the second and third surgeries were necessary because of the degree of damage done before the first surgery. More importantly, the Panel found sufficient evidence, primarily from medical reports, to support the ALJ’s finding that neither surgery was the result of a substantial permanent aggravation suffered during Hartford's coverage period.
 
Liberty also argued that the ALJ erred in ordering payment of partial disability benefits. Liberty asserted that the error was incurred because the issue of liability was “hotly contested,” and an ALJ order would require all respondents to apply for a Division-sponsored independent medical exam or risk being locked into a rating.
 
The Panel found at hearing, Liberty did not object to the issue of permanent partial disability benefits as premature and the issue was the basis of the hearing. So, the Panel concluded the ALJ properly ruled on permanent partial disability benefits at hearing, and the issue could not be raised for the first time on appeal.
 
Though the case was more complicated than a typical workers’ compensation claim, Mr. Simon’s knowledge and experience in the area lead to a positive result for his client.