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Pedersen v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 8, 1994

MARY L. PEDERSEN Appellant/Cross-Respondent
v.
STATE COMPENSATION INSURANCE FUND Respondent/Cross-Appellant/Insurer for PETE'S PLACE Employer.

          DECISION AND ORDER ON APPEAL

          Mike McCarter, Judge

         This 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.

         Based 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 The law in effect at the time of the injury, now repealed, [1] provided a specific procedure for determining rehabilitation options for injured workers.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 (1989).

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[2], 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 relevant part:

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.]

         After 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.

         Factual Background

         Mary L. 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 levels.

         The 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.

         Ms. 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.)

         The 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 opinions.

         On June 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 this report.

         Job 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.

         On 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 ...

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