DECISION AND ORDER ON APPEAL
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:
Employment Relations Division's July 6, 1992, Order of
Determination identifying option (c), pursuant to §
39-71-1012, MCA, is hereby AFFIRMED.
appellant, Robert F. Kramlich (claimant), also appeals from
an earlier, November 9, 1992 Order on Motion for Continuation
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repealed in 1991 but must be applied, as in this case, to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,
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.
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:
Self-Serve Service Station Attendant, and
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. The panel made the following
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
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
filed a timely appeal, triggering a contested case
proceeding. Section 39-71-1018(2), MCA. A hearing was held on
December 30, 1992.
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.
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
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.
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.
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.
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). Mary Mistal, PT conducted the functional
capacities assessment over a two-day period, July 17 and 18,
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
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.
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
Q As I understand the condition of his knee, it's a
condition called "chondromalacia." Is that correct?
Q And it's a roughening of the back surface of the
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 ...