No. 94-018 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

BRAND E. CAEKAERT, 

Petitioner and Appellant, 

v. 

STATE COMPENSATION MUTUAL 

INSURANCE FUND, 

~espondent/In~~rer and Respondent 

"'*' 'I FRANK WILSON PLUMBING AND HEATING, atAfe MOIYTA~~ 

Employer. 

APPEAL FROM: The Workers' Compensation Court, The 

Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick G. Frank, Worden, Thane & Haines, 

Missoula, Montana 

For Respondent: 

William J. Mattix, Crowley, Haughey, 

Hanson, Toole & Dietrich, Billings, Montana 

Filed: 

Submitted on Briefs: September 1, 1994 

Decided: November 22, 1994 
Justice Terry N. ~rieweiler delivered the opinion of the Court. 

Appellant Brand E. Caekaert filed a petition in the Workerst 

Compensation Court for the State of Montana in which he sought 

medical and disability benefits from the State Compensation Mutual 

Insurance Fund (State Fund). The Workerst Compensation Court 

denied Caekaertts petition. He appeals that decision. We reverse 

the judgment of the Workers' Compensation Court. 

The following issues are presented on appeal: 

1. Did the Workerst Compensation Court err when it denied 

Caekaertts claim for medical expenses? 

2. Did the Workerst Compensation Court err when it denied 

Caekaertts claim for temporary total disability benefits? 

3. Did the Workerst Compensation Court err when it denied 

Caekaertts claim for reasonable attorney fees and costs? 

FACTUAL BACKGROUND 

Caekaert is a journeyman plumber residing in Billings. He 

also owns an independent poultry business that he began in 

approximately 1987. In January 1988, Caekaert began working as a 

plumber for Frank Wilson Plumbing and Heating. In early February 

1988, Dr. S. Arthur Frankel determined that Caekaert was suffering 

from bilateral carpal tunnel syndrome. On February 10, and 

March 2, 1988, Dr. Frankel performed median nerve release 

procedures on Caekaertts left and right hands respectively. The 

State Fund insured Caekaertts employer at the time the carpal 

tunnel syndrome was diagnosed. In November 1988, Caekaert filed a 

claim for benefits under the Montana Occupational Disease Act. The 
State Fund accepted liability, covered the medical expenses, and 

paid Caekaert temporary total disability benefits. 

As early as May 1988, Caekaert visited other doctors to 

complain of recurring symptoms. In June and July 1988, Dr. 

Richard P. Lewallen, an orthopedic surgeon in Billings, referred 

Caekaert to Dr. Donald H. See, a neurologist, for nerve conduction 

tests. Dr. Seevs tests indicated that the condition of Caekaertvs 

right median nerve had worsened. Following these tests, Caekaert 

was referred to Dr. Jeffrey Hansen, Dr. Lewallenls partner, who 

specializes in carpal tunnel surgery. Dr. Hansen has remained 

Caekaertvs treating physician for his symptoms related to carpal 

tunnel entrapment since July 7, 1988. 

Dr. Hansen formed the opinion that Dr. Frankel1s surgeries 

were unsuccessful and concluded that re-exploration surgery on both 

hands was necessary. Dr. Hansen also concluded that Caekaertls 

symptoms became worse following the surgeries performed by Dr. 

Frankel. Dr. Hansen and Dr. Lewallen were additionally concerned 

that Caekaertls median nerve was compressed not only at his wrist, 

but at his elbow. Despite these opinions, Dr. Hansen adopted a 

conservative approach to treatment because Caekaert was uncertain 

about further surgery. Dr. Hansen decided to wait and see if 

Caekaertls condition would improve. 

In November 1992, Caekaert's hands reached the point where he 

felt surgery was again necessary. Dr. Hansen explained that the 

re-exploration procedures were necessary to alleviate the same 

symptoms that existed in June and July of 1988. On December 11, 
1992, Dr. Hansen performed surgery for release of the median nerve 

at Caekaert's right wrist and just below his right elbow. On 

February 12, 1993, Dr. Hansen performed another release procedure 

for the median nerve at Caekaert's left wrist and elbow. Dr. 

Hansen testified that the 1992 and 1993 surgeries left Caekaert 

totally disabled for six to eight weeks following each surgical 

procedure. 

Between the 1988 procedures and the 1992 and 1993 procedures, 

Caekaert worked sporadically. On June 27, 1988, Caekaert briefly 

returned to work as a plumber for Star Service. On July 15, 1988, 

while working for Star Service at St. Vincent's ~ospital, Caekaert 

injured his back. He returned to work for Star Service at a 

Reedpoint job site after a couple of weeks. In September, he quit 

his job with Star Service, claiming that the commute to Reedpoint 

from Billings hurt his back and that his hands still bothered him. 

Caekaert also worked periodically doing various jobs for his 

poultry business. 

Following the 1992 and 1993 surgeries, Caekaert submitted his 

medical bills to the State Fund. However, the State Fund denied 

liability. Caekaert then petitioned the Workers' Compensation 

Court for an award of medical expenses and disability benefits. 

After trial, the Workers1 Compensation Court concluded that the 

State Fund was not liable. 

In its Finding No. 18, the court found that Caekaert, in 

depositions and interrogatories in a separate claim related to his 

back injury, stated that his carpal tunnel syndrome did not prevent 
him from working and that his symptoms dramatically improved after 

surgery. In its Finding No. 14, the court found that Caekaert, in 

the previous litigation, claimed that he was permanently totally 

disabled from the back injury. In its Finding No. 22, the court 

noted that Dr. Hansen stated that Caekaert had reached "medical 

stabilityv1 on May 18, 1989. The court also pointed out that 

between 1988 and 1992 Caekaert continued to work in his poultry 

business, and in Finding No. 26, expressed skepticism regarding 

Caekaertvs testimony that he did as little strenuous work as 

possible in that business. In ind ding No. 34, the court observed 

that Dr. Hansen stated that Caekaertvs activity between the 

surgeries probably incrementally increased the problem, but 

Dr. Hansen stated that it was a difficult question of causation. 

Finally, in ind ding No. 35, the court found that Dr. Hansenvs 

testimony, and Caekaertls activity in the poultry business, 

established that Caekaertvs activity made his condition permanently 

worse. 

The court's conclusions of law are also important to this 

appeal. In Conclusion No. 2, the court concluded that because 

Caekaertls work in the poultry business aggravated his carpal 

tunnel problem, the State Fund is not responsible for the medical 

expenses or the temporary total disability benefits. In Conclusion 

No. 4, the court stated that Caekaertvs claim for temporary total 

disability is barred by judicial estoppel because in previous 

litigation he claimed that his back injury left him permanently and 

totally disabled. The court concluded that because Caekaert 

5 
claimed the back injury left him permanently disabled, he suffered 

no lost earnings after the 1992 and 1993 surgeries. The court 

noted that Caekaert was not judicially estopped from receiving 

medical benefits because previous testimony established that his 

1988 carpal tunnel surgeries were not 100 percent successful. 

Finally, the court concluded that Caekaert was not entitled to 

recover his attorney fees or costs. Caekaert appeals from these 

findings and conclusions. 

DISCUSSION 

ISSUE 1 

Did the Workers' Compensation Court err when it denied 

Caekaert's claim for medical expenses? 

In reviewing a Workers' Compensation Court decision, this 

Court examines whether the court's findings of fact are supported 

by substantial credible evidence. Buckentin v. State Compensation Ins. Fund 

(Mont. 1994), 878 P.2d 262, 263, 51 St. Rep. 656, 657. If there is 

conflicting evidence, we examine whether substantial evidence 

supports the Workers' Compensation Court, not whether the evidence 

might support contrary findings. Buckentin, 878 P. 2d at 263. We 

review the Workers' Compensation Court's conclusions of law to 

decide whether the court's determination of the law is correct. 

Stordalen v. Ricci's FoodFam (1993), 261 Mont. 256, 258, 862 P.2d 393, 

394. Where medical testimony is offered by deposition, this Court 

sits in as good a position as the Workers' Compensation Court to 

determine the weight of the medical testimony. McIntyre v. Glen Lake 
Imgation Dkt. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454. 

Nonetheless, the medical testimony must be considered in the 

context of other testimony that the trial court did in fact have an 

opportunity to observe if it is relevant to medical issues. 

Mclntyre, 813 P.2d at 454. 

It is undisputed that the State Fund accepted responsibility 

for the 1988 surgeries. The issue is whether the State Fund, as 

the initial insurer, remains liable for the subsequent surgery. 

Caekaert claims he is entitled to wage benefits and medical 

expenses based on 5 39-72-704, MCA (1987), which provides: 

In addition to the compensation provided by this 

chapter, an employee who becomes either totally or 

partially disabled from an occupational disease is 

entitled to receive for treatment of the occupational 

disease, without limitation as to lensth of time or 

dollar amount. reasonable medical services, 

hos~italization, medicines, and other treatment approved 

by the division. 

(Emphasis added.) 

In response, the State Fund contends it is not responsible for 

the 1992 and 1993 surgeries because Caekaert aggravated his 

condition by working in the poultry business between 1988 and 1992. 

The State Fund asserts that the Workers1 Compensation Court 

correctly concluded that the "last injurious exposure doctrinel1 

applies. SeeBeltonv.CarkonTransport (1983), 202 Mont. 384, 389, 658 

P.2d 405, 408 (holding once a claimant reaches maximum healing or 

a medically stable condition, the initial insurer at risk is not 

responsible for subsequent injuries or conditions) ; EBI/Onon Groupv. 
State Compensation MutualIns. Fund (1991), 249 Mont. 449, 452, 816 P.2d 

1070, 1072. Montana statutorily recognizes a version of the last 

injurious exposure rule in occupational disease cases. Section 39- 

72-303(1), MCA, provides that "[wlhere compensation is payable for 

an occupational disease, the only employer liable is the em~lover ' 

in whose em~lovment the em~lovee was last iniuriously emosed to 

the hazard of the disease." (Emphasis added.) 

We have not construed this statute, but Larson's Workmen's 

Compensation Law treatise states that recurrences of disabilities 

in occupational disease cases should be treated the same as 

accidental injury cases. Larson 5 95.27. Larson also recognizes 

that : 

[Wlhen disability has once resulted from occupational 

disease, a second disability occurring under a different 

carrier will be chargeable to the first carrier if it is 

a recurrence of the first disability. The persistence of 

svm~toms in the meantime, and the failure to demonstrate 

an incident that can independently emlain the second 

onset, are strong grounds for finding a mere recurrence 

However, if the later exposure should increase the 

degree of disability caused by the initial exposure, the 

second carrier might become responsible; but in such a 

case it would be necessary to distinguish carefully 

between the increased disability from natural progress of 

the disease and that resulting from the added exposure. 

Larson 9 95.27 (emphasis added). The State Fund asserts that 

Caekaert's activity between surgeries actually and proximately 

caused the need for additional surgeries. The statutory language 

indicates that the only employer liable is the employer where the 

employee was last injuriously exposed. As the language from Larson 
indicates, the first insurance company is liable for the second 

disability if it is a recurrence. 

To succeed in its last injurious exposure defense, the State 

Fund must show that the subsequent surgeries did not result from 

Caekaert's initial occupational disease. In other words, for the 

last injurious exposure rule to apply, there must be evidence of a 

second injury or injurious exposure that materially or 

substantially contributed to Caekaert's symptoms from carpal tunnel 

syndrome. See Peterson v. Eugene F. Burrill Lumber (Or. 19 8 3 ) , 6 6 0 P .2 d 10 58, 

1061. 

A later injury is compensable by the original carrier if it is 

a direct and natural result of a compensable primary injury, and 

not the result of an independent intervening cause attributable to 

the claimant. Rightnourv.Kare-MocInc. (1987), 225 Mont. 187, 189, 732 

P.2d 829, 830-31. If the original injury or occupational disease 

was the cause of the current condition, the State Fund is liable. 

Applying the rules for review set forth previously, and the 

above law, we then consider the medical evidence pertaining to this 

issue. 

The only medical testimony offered at the trial of this case 

was that of Dr. Hansen, which was offered by deposition. He 

testified that although excellent relief was observed by 

Dr. Frankel a week or two after the 1988 surgery on Caekaert's 

wrists, most of the symptoms had returned by several months after 

those surgical procedures. Based on that development, both he and 
Dr. Lewallen shared the opinion that the nerve had either been 

overgrown by scar tissue, was again entrapped by a ligament, or had 

actually been compressed at more than the level at which it was 

released. 

Dr. Hansen unequivocally testified that Caekaert's carpal 

tunnel syndrome had not improved following the original surgery, 

and, based on nerve conduction studies, his opinion was that the 

condition had worsened. As a result, as early as July 1988 both he 

and Dr. Lewallen were of the opinion that re-exploration surgery 

would be necessary--long before Caekaert did the work on his 

poultry farm to which the Workers1 Compensation Court attributed 

his 1992 and 1993 surgical procedures. 

Dr. Hansen testified that in November 1992, when Caekaert 

finally consented to undergo further surgical treatment, he was 

basically suffering from the same condition for which Dr. Frankel 

had treated him in 1988. He gave the following unequivocal opinion 

when asked whether the surgical procedures he performed in 1992 and 

1993 were necessary due to the condition for which he originally 

saw Caekaert in 1988: 

Q. Dr. Hansen, is it your opinion that the releases 

that you are referring to here in Exhibits 9 and 10 

were done to alleviate the condition that existed 

for as long as you treated Mr. Caekaert? 

A. Yes, I feel that quite strongly. 

Q. And is that opinion based on a reasonable medical 

probability? 

A. Yes, I believe it is. 
After describing what he observed during the surgeries that he 

performed, Dr. Hansen gave the following additional opinion 

testimony: 

Q. In January of '89, now that you have done the 

operations, do you believe that you would have 

found the conditions that you found upon operating 

back in January l89? 

Q. Do you understand my question? 

A. Yes. I think the findings would have been 

identical if we would have done the operation, you 

know, a month after we first saw him. 

The only testimony that Dr. Hansen gave which related 

Caekaertls condition for which the 1992 and 1993 surgeries were 

performed to a particular event, related it to the condition in 

which Caekaert found himself following his 1988 surgical procedures 

for which the State Fund has accepted liability. In answer to 

questions posed on cross-examination, Dr. Hansen did concede that 

Caekaertls conditions worsened periodically in relation to the 

extent of his activities, but explained that worsened 

symptomatology and worsened condition are not the same thing. He 

also pointed out that every time Caekaert discontinued working on 

his poultry farm, his condition basically went back to the baseline 

state that Dr. Hansen observed when he originally examined him. He 

testified that while continued activity may worsen the type of 

condition for which he treated Caekaert, the amount was not 

quantifiable and, while he did acknowledge that the type of 

activity Caekaert engaged in on the poultry farm can lead to a 
progression of symptoms, at no time did he express an opinion that 

the surgery he performed in 1992 and 1993 was necessary because of 

a progression of Caekaertls symptoms. His testimony was clearly 

that whether Caekaertls symptoms worsened over time or not, the 

additional surgical procedures that he performed were necessary due 

to the condition that he believed existed when he first saw 

Caekaert in July 1988. 

Toward the end of the State Fund's cross-examination of Dr. 

Hansen, he made the following concluding remark: 

A. Basically he [had] about the same indications all 

along, maybe a little bit worse now, but really not 

a lot different than he did very early on in his 

care . . . . 

We have recognized that, in cases where a claimant is 

reinjured before the first injury reaches a medically stable 

condition, and the first insurer disclaims coverage, the burden of 

proof falls on the insurance company at risk at the time of the 

accident the claimant alleges causes his injury. Belton, 658 P.2d 

at 409-10; OmBrien v. Central Feeds (1990), 241 Mont. 267, 272, 786 P. 2d 

1169, 1172. In EBIIOrion, we noted that to avoid liability, the 

initial insurer must show that (1) the claimant reached maximum 

healing; and (2) that he or she sustained an injury after reaching 

maximum healing. EBIlOrion, 816 P.2d at 1072. 

In O@Brien, the claimant received numerous injuries under 

different insurers. Doctors testified that although it was 

possible that a number of events could have aggravated conditions 
after claimant's original injury, the original injuries were more 

likely than not related to his present condition. O@Brien, 786 P.2d 

at 1171. We reasoned that there was no conclusive evidence that 

the claimant reached maximum healing before the subsequent injury. 

Although a doctor testified that it was possible that other events 

could have aggravated the claimant's condition, we concluded that 

medical possibility, absent more persuasive evidence, is not enough 

to prove a claimant reached maximum healing before subsequent 

employment. O@Brien, 786 P.2d at 1172. We also stated that a 

medical release to return to work is not sufficient to establish 

maximum healing. O~Brien, 786 P.2d at 1172-73. 

In this case, the State Fund had the burden of proving that 

Caekaert reached maximum healing. It had to sufficiently explain 

the second onset, proving it was not a recurrence of symptoms from 

the 1988 surgeries for which it accepted liability. However, it 

did not introduce sufficient evidence to establish that Caekaert 

reached maximum healing, or that he reinjured himself. 

Dr. Hansen supplied medical testimony, by deposition, 

regarding the 1992 and 1993 surgeries. He testified that almost 

immediately following the 1988 surgeries Caekaert required 

additional surgery. He also testified, consistent with Dr. 

Lewallenls opinion, that the later surgeries required releases of 

the median nerves at both elbows. Any suggestions in Dr. Hansenls 

testimony that Caekaertls activity subsequent to 1988 contributed 

to his current condition was equivocal at best and does not change 
the fact that surgery was necessary before any npossiblen 

aggravation occurred. Moreover, medical possibility, absent more 

persuasive evidence, is not sufficient to establish that Caekaertts 

activity caused a subsequent injurious exposure which would relieve 

the State Fund of liability. See OmBrien, 786 P. 2d at 1172. Because 

9 e State Fund did not offer substantial evidence that a second 

event or exposure caused Caekaert to undergo surgical procedures in 

1992 and 1993, the Workerst Compensation Court incorrectly 

concluded that the last injurious exposure rule barred Caekaertls 

claim. 

For these reasons, we conclude that the Workerst Compensation 

Court erred by not holding the State Fund liable for Caekaertts 

medical expenses following the second set of surgical procedures. 

ISSUE 2 

Did the Workers' Compensation Court err when it denied 

Caekaertts claim for temporary total disability benefits? 

Although the above analysis also supports awarding Caekaert 

temporary total disability benefits following the 1992 and 1993 

surgeries, the Workers1 Compensation Court concluded that Caekaert 

was judicially estopped from asserting this claim. 

The Workerst Compensation Court concluded that because 

Caekaert, in depositions and affidavits in litigation following his 

1988 back injury, claimed that the back injury left him permanently 

and totally disabled, he is now estopped from claiming temporary 

total disability. In other words, because he claimed his back 
injury rendered him unable to earn income, he suffered no lost 

wages following the 1992 and 1993 hand surgeries. 

We previously recognized the doctrine of judicial estoppel in 

Rowland v. Hies (1986), 223 Mont. 360, 726 P.2d 310. Under this 

doctrine, we do not permit litigants to assert inconsistent and 

contradictory positions in separate litigation. The clearest 

reason for the rule is to prevent parties from playing 

"fast-and-loose with the court^.'^ Rowland, 726 P.2d at 315. To 

give rise to judicial estoppel, the first representation must have 

been made knowingly and free from the other party's inducement; it 

applies particularly to admissions or positions asserted under oath 

or in previous litigation. Rowland, 726 P.2d at 315. In Rowland, 

we also cited a Texas case for the proposition that judicial 

estoppel does not apply when the previous position is uncertain or 

based on facts not yet determined. Rowland, 726 P. 2d at 316 (citing 

LaChance v. McKown (Tex. Ct. App. 1983) , 649 S.W. 2d 658, 660) . 

Although we agree with the above stated principles of judicial 

estoppel, that doctrine does not apply here. Caekaert did not 

offer inconsistent testimony in a previous case. He previously 

claimed that his back pain was so severe that it forced him to quit 

working for Star Service and left him with no earning capacity. 

However, Caekaert had injured his back and was merely describing 

his physical condition following that injury. Caekaert did not, 

and because he is not a medical professional, could not, anticipate 

the duration of his disability from that injury. 
The State Fund contends on appeal that the real basis for 

applying judicial estoppel is testimony given by Caekaert in 1991 

that the condition of his hands at that time did not preclude him 

from returning to work. However, the State Fund's argument, as 

well as the trial court's conclusion, confuses the concepts of 

npermanent total disability," "permanent partial disability,I1 and 

"temporary total disability." 

Permanent total disability, according to the terms in effect 

at the time that Caekaert's condition occurred, referred to a 

worker who had reached maximum healing and was unable to return to 

work in his job pool. Section 39-71-116 (15) , MCA (1987). 

Permanent partial disability referred to a worker who had reached 

maximum healing but was left with physical restrictions which 

affected his wages. Section 39-71-116(14), MCA (1987). 

The only disability benefits sought in this case are temporary 

total disability benefits. Those are awarded to a worker who 

sustains a total loss of wages because he has not yet reached 

maximum healing. Section 39-71-116(21), MCA (1987). It was 

Dr. Hansen's undisputed testimony that Caekaert would be 

temporarily totally disabled for six to eight weeks following each 

of the procedures that he performed in 1992 and 1993. Whether he 

was able to work prior to those surgical procedures in spite of 

median nerve symptomatology, and whether at some time several years 

earlier he was totally unable to work because of back complaints, 

is irrelevant. The record established that although Caekaert was 

unable to return to work as a plumber because of his back injury, 
he did return to some form of gainful employment prior to the 

surgeries performed by Dr. Hansen and was subsequently removed from 

any form of occupation for a short period of time due to further 

surgery. 

We conclude that Caekaertts prior testimony regarding the 

impact of his back injury on his ability to work as a plumber, and 

his prior statements regarding his ability to work in spite of 

ongoing symptoms from carpal tunnel syndrome, are not inconsistent 

with his claim for temporary total disability benefits while he 

recovers from the surgical procedures that were performed in 1992 

and 1993. Therefore, we conclude that he is not judicially 

estopped from claiming and receiving temporary total disability 

benefits in this case. 

ISSUE 3 

Did the Workers1 compensation Court err when it denied 

Caekaertts claim for reasonable attorney fees and costs? 

Caekaert requested the Workers1 Compensation Court to award 

attorney fees and a statutory penalty under 55 39-71-611 and -2907, 

MCA (1987). Section 39-71-611, MCA, provides for attorney fees if 

the insurer was unreasonable. Likewise, 5 39-71-2907, MCA, 

provides for statutory penalties where the insurer unreasonably 

delays or refuses to pay compensation. The issue of reasonableness 

is one for the Workers1 Compensation Court to decide, based on all 

of the evidence. Therefore, this case is remanded to the Workers1 

Compensation Court for reconsideration of the attorney fee and 
penalty issues, after taking into consideration this decision, and 

all of the evidence. 

The judgment of the Workers1 Compensation Court is reversed 

and this case is remanded for the limited purpose of considering 

Caekaertls claim for attorney fees, costs, and the statutory 

penalty, and the duration of any temporary total disability 

benefits to which Caekaert is entitled. 

We concur: