MARY L. PEDERSEN Appellant/Cross-Respondent
STATE COMPENSATION INSURANCE FUND Respondent/Cross-Appellant/Insurer for PETE'S PLACE Employer.
DECISION AND ORDER ON APPEAL
appeal is from the Findings of Fact; Conclusions of Law;
Order entered by Stephen L. Wallace, hearing examiner for the
Montana Department of Labor and Industry (DLI), on December
28, 1993. The order affirmed a Rehabilitation Panel
determination that the first appropriate rehabilitation
option for Mary L. Pedersen (Pedersen) is option
"c". Additionally Pedersen was ordered to repay the
difference between wage supplement benefits and the total
rehabilitation benefits which she had received as a result of
DLI's June 30, 1993 Interim Order Provisionally
Reinstating Total Rehabilitation Benefits. On January 7,
1994, Pedersen appealed. On January 12, 1994, the State
Compensation Insurance Fund (State Fund) cross-appealed from
that portion of the hearing examiner's order which
affirmed the Interim Order.
on the record, which consists of the DLI file transmitted to
the Court, Pedersen suffered an industrial injury on October
5, 1990. The law in effect at the time of the injury, now
repealed,  provided a specific procedure for
determining rehabilitation options for injured workers. The
procedure initially requires the insurer to designate a
rehabilitation provider. § 39-71-1014(a), MCA (1989).
The designated provider determines the first appropriate
rehabilitation option for the injured worker. §
39-71-1015(a), MCA (1989). Where the worker in fact does not
return to work, the DLI is then required to designate a
rehabilitation panel to evaluate the worker and recommend a
first appropriate rehabilitation option. § 39-71-1017,
MCA (1989). Following the issuance of the panel's report,
the DLI must consider the report and issue its own
"initial order of determination" specifying the
first appropriate option for the worker. §
39-71-1018(1), MCA (1989). The initial order triggers the
right to a hearing before the DLI. § 39-71-1018(2), MCA
(1989). After a hearing the DLI is required to issue a
"final order," which in turn triggers the right of
appeal to this Court. Section 39-71-1018(3) and (4), MCA
The procedures prescribed by statute were followed.
Additionally, in June of 1993, Pedersen, relying on this
Court's decision in Montana Health Network v.
Nelson, WCC 9212-6649, issued on April 9,
1993, filed a Motion for Reinstatement of Total
Rehabilitation Benefits. Over the State Fund's objection
the hearing examiner issued an Interim Order Provisionally
Reinstating Total Rehabilitation Benefits, providing in
Therefore, IT IS HEREBY ORDERED, the Insurer, upon written
application through the claimant's attorney, will
reinstate total disability benefits pending a Final
Order of the Department. The Claimant shall be
obligated to repay the differential if option "c"
is found to be correct. [Emphasis added.]
filing her appeal in this Court, Pedersen filed a motion
seeking leave to present additional evidence to the Court.
The motion was accompanied by an affidavit of Pedersen
stating that she has recently attempted to work as a keno
caller but was unable to perform the job. The motion is
denied. ARM 24.5.350 provides that
additional evidence may be presented to the Court if it is
shown that the additional evidence is material and that there
were good reasons for failure to present it in the proceeding
before the department. Pedersen testified regarding her
abilities at the time of the hearing before the department
and had ample opportunity to present evidence and facts
regarding her limitations and ability to work. The events
described in the affidavit occurred after the hearing and may
raise issues concerning Pedersen's credibility since her
claim that she could not continue working as a keno caller is
based only on her assertion. In the proceeding below she made
a similar claim of inability to work. This Court will not
conduct a de novo review of that claim.
Pedersen is 38 years old. She has a GED and attended college
for one year. Her work history includes teacher assistant,
cook, child care worker, cashier, waitress, cement finisher
and sawmill worker. She raises and shows "Akita"
dogs. Ms. Pedersen was injured in a prior industrial accident
on October 8, 1984, which resulted in an emergency
laminectomy and excision of the L5-S1 disc. Also, on January
3, 1985, she was in an automobile accident which resulted in
a hemilaminotomy and a foramenotomy at the C5-6 and C6-7
injury at issue in this proceeding happened on October 5,
1990, when Pedersen was working for Pete's Place, a day
care center. The injury occurred when Pedersen was leaning
over a dishwasher "trying to unload it, and I
couldn't even get up." (Pedersen Dep. at 36.)
Pedersen went to Dr. Carpenter, who took her off work for six
weeks. She returned to work and the same thing happened
again, resulting in her being off work for a "couple of
months." She tried to return to work for a third time
but was unable to continue. Dr. Carpenter then advised her
that she could not return to work (Id. at 36) and
referred her to Dr. Weinert at St. Peter's Hospital to
participate in a functional restoration program.
(Id. at 36.) Dr. Weinert is a physiatrist
specializing in physical and rehabilitation medicine.
Pedersen entered the restoration program on March 2, 1992. By
letter dated June 9, 1992, Jayne Davis, Program/Case
Coordinator, provided Dr. Carpenter with a closing report
concerning Pedersen's participation in the program. Ms.
Davis concluded with the observation that "Mary's
current functional capabilities for occupational re-entry are
in the light to sedentary category as defined by the
dictionary of occupational titles." Regarding the
physical therapy aspect of the program she reported that
Pedersen did not meet all of the goals which had been set.
This was in part due to Pedersen's unwillingness to try
certain activities until the final week of the program.
"By the last week, her self reports and her behaviors
were more consistent and she was earnestly able to view
herself as less disabled." (Ex. 4, pp. 1-3.)
State Fund referred Pedersen to the Rehabilitation Consortium
on March 16, 1992. On March 30, 1992, Colleen Lordemann did
an "intake" interview, which is an initial
assessment done to determine whether a person will be able to
return to the work they were doing at the time of the injury.
(Tr. at 50.) Based on this interview and information from Dr.
Weinert, Ms. Lordemann determined that Pedersen could not
return to her time-of-injury job but was capable of sedentary
to light work. (Id. at 53.) She compiled a list of
alternative occupations within Pedersen's physical
limitations. Included in the list were keno writer, auto
rental clerk, cashier II, hotel desk clerk, receptionist,
telemarketer, ward clerk, video rental clerk, parking lot
attendant, transitional living manager and line cook.
(Id. at 53, 54.) Ms. Lordemann determined that the
identified jobs existed in both the local and statewide labor
market. (Ex. B.) Pedersen offered no evidence rebutting Ms.
Lordemann's conclusions concerning the availability of
the positions of video rental clerk, casino cashier and keno
caller. The hearing examiner found Ms. Lordemann to be a
credible and reliable witness with regard to her professional
5, 1992, Dr. Weinert prepared a report giving Pedersen an
impairment of 11 percent of the whole person. There are no
further medical reports from Dr. Weinert, nor is there any
indication that Pedersen has been seen by Dr. Weinert since
analyses for six different positions were presented to Dr.
Weinert between July and November of 1992. On July 31, 1992,
Dr. Weinert medically approved the position of "Casino
Cashier." This position may require lifting of up to 20
pounds, but is qualified with the statement "can lift
less." It allows for two 15 minute breaks per shift and
gives the employee the option of sitting or standing. (Ex. 1
at 1; Tr. at 63.) On August 3, 1992, Dr. Weinert approved the
position of "Transitional Living Manager." However,
this position was not approved by the rehabilitation panel
because the panel determined that it is not typically
available in Pedersen's job pool. (Ex. B.) On November 9,
1992, Dr. Weinert approved the positions of "Keno
Writer" and "Video Rental Clerk." A keno
writer may be required to bend or squat as many as
20 times per shift for short durations. (Ex. 2 at 5.) The
position of video rental clerk occasionally requires lifting
TVs or VCRs which may weigh from 15 to 30 pounds. (Ex. C.)
Dr. Weinert disapproved of the position of "Parking Lot
Attendant." He approved "Desk Clerk" but
limited Pedersen to four hours per day in that position.
September 28, 1992, Dr. Weinert wrote a letter to the insurer
concerning Pedersen's functional capabilities. He wrote:
[M]s. Pedersen's functional capabilities are in the
sedentary to light physical demand level. She should do no
lifting greater than 20 lbs. she should be allowed frequent
positional changes in her vocation and should not be required
to stand in a stationary position for more than 30 minutes at