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Kramlich v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 10, 1994

ROBERT KRAMLICH Appellant
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          DECISION AND ORDER ON APPEAL

          Mike McCarter, Judge

         This is an appeal from the Findings of Fact, Conclusions of Law, and Order entered by the Montana Department of Labor and Industry (DLI) on April 19, 1993 following a contested case hearing. The Order provides:

         The Employment Relations Division's July 6, 1992, Order of Determination identifying option (c), pursuant to § 39-71-1012, MCA, is hereby AFFIRMED.

         The appellant, Robert F. Kramlich (claimant), also appeals from an earlier, November 9, 1992 Order on Motion for Continuation of Benefits.

         Procedural Background

         This case arises under the 1987 provisions regulating determinations of permanent disability and referral of disabled workers for vocational rehabilitation. Sections 39-71-1011 to 1019, MCA (1987). The provisions set forth in sections 39-71-1012 and 39-71-1015 through 39-71-1019 were repealed in 1991 but must be applied, as in this case, to injuries occurring between July 1, 1987 and June 30, 1989.[1]

         Appellant, Robert Kramlich, was working as a crusher/oiler for Konitz Contractor Inc. when he fell from a ladder injuring his right knee and ankle on April 25, 1989. The insurer, State Compensation Insurance Fund (State Fund), accepted liability and has paid various medical and compensation benefits. Claimant's last day of work was October 20, 1989.

         After his treating physician disapproved of his returning to his time-of-injury job, Crawford Rehabilitation Services (Crawford) was designated to perform a vocational analysis, pursuant to section 39-71-1014, MCA. Crawford confirmed claimant's inability to return to his former job or to a modified position, but identified two related occupations which, in the opinion of Crawford's vocational consultant, Tim Snyder, the claimant was capable of performing. Those jobs were:

         1. Auto Self-Serve Service Station Attendant, and

         2. Cashier II.

         Section 39-71-1015, MCA (1987), provides for referral of an injured worker who has not returned to work to a rehabilitation panel. The three members of the rehabilitation panel in this case met by telephone on June 16, 1992. The Rehabilitation Panel's report, signed only by Panel Chair Karen Doig, was issued on July 1, 1992.[2] The panel made the following recommendation:

The Rehabilitation Panel is recommending option (c), return to a related occupation suited to the claimant's education and marketable skills, as the first appropriate rehabilitation option with the position of Auto Self Serve Station Attendant. The Panel also recommends placement assistance be offered to this claimant. [Underlining in the original; bolded emphasis added.]

         On July 6, 1992, the Employment Relations Division of the DLI issued an initial order of determination as provided by section 39-71-1018, MCA. The order adopted the Panel's recommendation.

         Claimant filed a timely appeal, triggering a contested case proceeding. Section 39-71-1018(2), MCA. A hearing was held on December 30, 1992.

         Meanwhile on August 28, 1992, the State Fund notified claimant that it was terminating his temporary total disability benefits retroactive to June 1, 1992. The notice acknowledged claimant's entitlement to wage supplement benefits at the weekly rate of $149.50, but informed the claimant that he would be paid only $1.00 biweekly (50 cents a week) until the State Fund recouped an overpayment of $1, 900.15. The overpayment was based on the temporary total benefits paid claimant between June 1, 1992 and August 28, 1992.

         Claimant's Request for Order Requiring That Defendant Reinstate Benefits with supporting memorandum was served on September 30, 1992. On November 9, 1992, the hearing examiner determined:

1. Respondent is hereby ordered to reinstate total rehabilitation benefits from the date of termination (reduction) pending a decision following hearing before the department.
2. Respondent is entitled to reimbursement of any total rehabilitation benefits paid pursuant to this order in the event of Claimant's failure to prevail on the substantive issue now before the department.

         On December 30, 1992, the administrative hearing was conducted with attorneys Andrew J. Utick and Laurence A. Hubbard and the claimant Robert F. Kramlich present. The testimony of Tim Snyder was taken telephonically. The depositions of Sandy Besel, Mary Mistal, P.T. and Stephen R. Davenport, M.D. were submitted. The hearing examiner issued his decision affirming the Order of Determination on April 19, 1993. The Notice of Appeal to the Workers' Compensation Court was filed on April 26, 1993. Briefs have been submitted and this matter is ready for decision.

         Factual Background

         Claimant was born on August 9, 1950. He graduated from high school and has had no further formal education. Claimant's employment history consists of working for Cenex from 1972 to 1979. While employed at Cenex, his work experience consisted of all kinds of maintenance on automobiles, including changing tires, oil, mufflers and so forth. He drove a fuel truck and in the summer worked in the fertilizer plant, unloading and delivering fertilizer. Occasionally he worked in the full-service gasoline station run by Cenex, writing up tickets and making change from a cash box. The claimant testified he had no experience operating a cash register. Beginning in 1979, he was employed as an oiler/crusher for Konitz Contractor, Inc., a position which he held until October 20, 1989, when he quit his job as a result of the injury to his right knee and ankle.

         Medical

         Claimant's treating physician since November 29, 1989, has been Stephen Davenport, M.D., a board certified orthopedic surgeon. As a result of his injury, claimant has had two surgeries on his right knee and right ankle. Dr. Davenport indicated that the claimant would reach maximum medical improvement four months after his January 1991 surgery and sometime in May of 1991 he referred Mr. Kramlich for a functional capacities evaluation (FCE)[3]. Mary Mistal, PT conducted the functional capacities assessment over a two-day period, July 17 and 18, 1991.

         The doctor was specific in stating that the claimant could not return to his time-of-injury work and on several occasions has recommended retraining. However, Dr. Davenport's review of the Estimated Functional Capacity form (EFC) and job analyses prepared by Tim Snyder resulted in his approval of two return-to-work options for claimant, one as an auto self-serve service station attendant and the other as a cashier II. Dr. Davenport discussed the EFC report with the claimant, but did not discuss working conditions and/or requirements for the gas attendant position with Ms. Mistal, Tim Snyder or any person familiar with that position prior to his approval. Mary Mistal also approved the job description for the auto self-serve service station attendant.

         The Rehabilitation Panel relied in part on the information provided by the EFC and Dr. Davenport's approval of the job analysis for the auto self-serve service station attendant. Upon appeal from DLI's Initial Order of Determination, and in preparation for a hearing, the depositions of Mistal, Davenport and Sandy Besel, an employer of persons working in a self-service gas station, were taken.

         Dr. Davenport described the claimant's condition during his deposition by stating, "The simplest thing to say is that he's got osteoarthritis of his right knee and his right ankle." Discussing Kramlich's condition the doctor testified.

Q As I understand the condition of his knee, it's a condition called "chondromalacia." Is that correct?
A Right.
Q And it's a roughening of the back surface of the kneecap?
A Yes.
Q What's the prognosis for a condition like that over a long period of time?
A I suppose poor.
Q And what do you mean by that? Is he going to have recurrence of the condition or what?
A I mean, it's a condition that's never going to get better. It's going to deteriorate and get worse, and he's probably going to need ...

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