WALTER J. CASAROTTO Petitioner
MONTANA MUNICIPAL INSURANCE AUTHORITY Respondent/Insurer for BUTTE - SILVER BOW GOV'T POLICE DEPARTMENT Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on February 18, 1994 in Butte,
Montana, the Honorable Mike McCarter, Judge of the
Workers' Compensation Court, presiding. Petitioner,
Walter J. Casarotto (claimant), was present and represented
by Mr. Richard J. Pyfer. Respondent, Montana Municipal
Insurance Authority, was represented by Mr. Leo S. Ward.
Claimant was sworn and testified on his own behalf. Gary
Henrich was also sworn and testified. Claimant was granted
leave, over the respondent's objection, to take the
post-trial deposition of Dr. James Murphy. Dr. Murphy's
deposition has been submitted to the Court and was considered
by the Court in reaching its decision. Exhibits 1 and 2 were
admitted into evidence by stipulation of the parties.
issue in this case concerns claimant's entitlement to
permanent partial disability benefits pursuant to section
39-71-703, MCA (1991).
considered the pretrial order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, and the arguments of the parties,
the Court makes the following:
claimant was 46 years old at the time of trial. He has been a
policeman with the Butte-Silver Bow County Police Department
for approximately twenty years.
is a graduate of Butte High School. He attended Northern
Montana College for one year. He then attended Dupage
Horticulture School in West Chicago, Illinois for a year,
where he received a certificate of completion. Claimant then
worked as a horticulturist at Salem Nurseries for seven or
eight months, where he was an assistant manager. This
position involved lifting and moving plants around, and
lifting above the head of up to sixty or seventy pounds.
served in the United States Army for two years, and then
returned to Butte. After his return to Butte he worked as a
stockroom manager in a department store for approximately two
years. The job involved overhead lifting of up to sixty or
seventy pounds, pushing and pulling, and stocking shelves. He
also worked for a short period of time as a construction
joined the Butte-Silver Bow County Police force in 1972 and
has worked as a police officer since that time.
October 6, 1991, claimant suffered a work-related injury to
his right shoulder while subduing a suspect. He reached out
to grab the individual when he felt something pull in his
October 6, 1991, the Butte-Silver Bow Police Department was
enrolled under Compensation Plan I of the Workers'
Compensation Act, and was self-insured through the Montana
Municipal Insurance Authority (MMIA). The MMIA accepted
liability for claimant's industrial injury.
initially sought treatment for his injury on October 10,
1991, from Dr. James Murphy, an orthopedic surgeon in Butte.
Dr. Murphy took claimant off work until November 1, 1991 and
prescribed physical therapy and cortisone medication.
continued to experience difficulty with his shoulder. An MRI
of his right shoulder was performed on December 27, 1991. It
disclosed a partially torn right rotator cuff of the right
shoulder and a tear of the posterior glenoid labrum in the
shoulder. (Ex. 2 at 3, 6, 7.)
Murphy discussed surgery with claimant, but for the time
being claimant has elected conservative treatment with
non-steroidal anti-inflammatories. Dr. Murphy testified that
claimant may need surgery in the future. (Murphy Dep. at 6.)
December 31, 1991, Dr. Murphy provided an impairment rating
for claimant's injury. The rating was 11 percent of the
upper extremity, which translates to 7 percent of the whole
person. Claimant's shoulder is impaired in abduction,
external rotation and forward flexion. (Murphy Dep. at 8-10;
Ex. 2 at 5, 10.)
was highly motivated to return to work and Dr. Murphy did
approve his return, "with no limitations," in a
letter to the insurer dated December 6, 1991. (Ex. 2 at 8.)
He wrote another letter to the insurer on May 5, 1992 which
stated "Mr. Casarotto is able to do his job without
limitations, although he does have pain on occasion and still
has a permanent partial impairment of the whole person."
(Ex. 2 at 2.)
of the physical limitations resulting from his injuries, Dr.
Murphy has restricted him from doing overhead work. The
nature of the restriction is set forth in a letter from Dr.
Murphy dated June 1, 1993 stating in part:
He does have limited motion, particularly on abduction and
external rotation. It is my opinion that he does have
permanent partial physical impairment. If he were to do any
type of work that required overhead work, he would be unable
to do this since he can only abduct to 90 degrees. He also
has limited external rotation. Any work causing external
rotation beyond 20 degrees, this patient would definitely be
impaired. . . .
(Ex. 2 at 1.) Dr. Murphy confirmed the restrictions in his
deposition. (Murphy Dep. at 11-14.) He advised against
claimant working construction. When asked if claimant could
work, as he had 20 years ago, as a stockroom manager who
lifts boxes and objects above his head, Dr. Murphy stated,
"He can't do it. He can only abduct to 90
degrees." (Id. at 13.)
Murphy further testified that claimant is "taking a
chance" by continuing to work as a policeman:
Q Did you have some concerns about the fact that he could
hurt himself in doing that when you released him there?
A Yes, I think that he's going to have some impairment if
he's going to have to wrestle somebody because he
doesn't have the full range of motion with his shoulder.
Q What kind of impairment would that create for him?
A Oh, he's going to have pain.
Q Is there more damage that can be done with that ...