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Casarotto v. Montana Municipal Insurance Authority

Court of Workers Compensation of Montana

July 8, 1994




         The 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.

         The issue in this case concerns claimant's entitlement to permanent partial disability benefits pursuant to section 39-71-703, MCA (1991).

         Having 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:


         1.The 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.

         2.Claimant 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.

         3.Claimant 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 worker.

         4.Claimant joined the Butte-Silver Bow County Police force in 1972 and has worked as a police officer since that time.

         5.On 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 arm.

         6.On 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.

         7.Claimant 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.

         8.Claimant 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.[1] (Ex. 2 at 3, 6, 7.)

         9.Dr. 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.)

         10.On 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.)

         11.Claimant 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.)

         12.Because 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.)

         13.Dr. 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 ...

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