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Warburton v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

August 26, 1994



          Mike McCarter JUDGE

         Petitioner, Linda Warburton (Warburton), appeals from Findings of Fact; Conclusions of Law; and Order entered on January 13, 1994, by Gordon Bruce, a hearing examiner for the Montana Department of Labor and Industry (DLI). The decision below was made pursuant to rehabilitation panel procedures found at section 39-71-1012 to 1018, MCA (1989), and determined that option (b) -- "return to [work in] a modified position" -- is the most appropriate rehabilitation option for Ms. Warburton. For the reasons set forth herein the DLI decision is reversed and the matter remanded for a new hearing.

         Factual Background

         Warburton is forty-two years old, has a tenth grade education and a work history consisting of thirteen years as a bartender and a few months as a deli worker. She strained her entire back on January 9, 1991, while employed as a deli worker for the IGA store in Havre, Montana. She thereafter developed "significant difficulty with neck as well as right shoulder and left shoulder pain." (Ex. H at 5.) She has been restricted from lifting more than twenty pounds and to occasionally (0-3 hours) doing such tasks as pushing - pulling, bending, kneeling, crawling and reaching. She suffers from chronic pain in her shoulders, neck and back.

         After her industrial accident Warburton was also involved in an automobile accident. However, it does not appear that her injuries from that accident are a major factor in assessing her ability to return to work. (Id.)

         Following her January 9, 1991 industrial accident, Warburton was initially treated by Dr. James E. Elliott. However, the record below does not include records of Dr. Elliott's initial treatment. The earliest medical record is for an April 10, 1992 examination by Dr. Terry Jackson, a specialist in physical and rehabilitation medicine, and that record indicates that Dr. Jackson had seen claimant previously. In addition to Drs. Jackson and Elliott, Warburton has also been examined by Dr. Willia Labunetz, a neurologist, and Dr. Susan Effertz, who specializes in internal medicine and rheumatology.

         On April 10, 1992, Dr. Jackson determined that Warburton was at maximum medical improvement, gave her a sixteen percent impairment rating, and commented: "It would be appropriate for this woman to re-enter the job force in a position that is not going to put her at increased risk of recurrent injury." (Id. at 6.) None of the physicians examining Warburton found her to be totally precluded from working.

         In June of 1992 the State Fund designated Vocational Resources Incorporated (VRI) to determine Warburton's return-to-work capabilities. VRI prepared a number of job descriptions, including one for a modified position as a shelf facer at the IGA store, and submitted them to Dr. Jackson for his consideration. Dr. Jackson approved the job descriptions for shelf-facer and desk clerk. He did not approve positions of host/hostess, short order cook or waitress.

         Warburton did not return thereafter to work. The DLI therefore designated a rehabilitation panel in accordance with sections 39-71-1015(3) and 39-71-1016, MCA (1989). The panel conducted its evaluation and issued a report on May 14, 1993. The panel recommended "option (b), return to a modified position, as the first appropriate return to work option." The DLI adopted the panel recommendation in its Initial Order of Determination on June 10, 1993. Warburton took exception to the Order and requested a hearing as provided by section 39-71-1018(2), MCA (1989).

         While awaiting a hearing, Warburton returned to work at the IGA in the modified position of shelf facer. She began work on August 9, 1993, and worked four hours a day with a 15 minute break. She worked for eight days. She testified that over the eight day span her pain increased and that by August 16, 1993 she "was hurting real bad." (Tr. at 13.) She called in sick on August 17th and 18th. On Thursday, August 19, 1993, she discussed her situation with one of the IGA owners, who told her not to come into work until she was examined by Dr. Elliott.

         Dr. Elliott examined claimant on August 23 and September 13, 1993. He commented that he did not take care of back pain anymore and referred her back to Dr. Jackson. He provided her with a written excuse from work until she could see Dr. Jackson.

         Dr. Jackson examined Warburton on October 6, 1993. He noted her unsuccessful attempt to return to work and recorded Ms. Warburton's statement that she believed herself to be "totally disabled and unable to work." He disagreed. His office notes states, "I think that this woman is capable of performing either light or sedentary types of work." He repeated that opinion in a letter to the State Fund on November 18, 1994. (Ex. H at 3.) He recommended a home exercise program, which he believed would ameliorate Warburton's pain. Of great significance to the decision in this case, Dr. Jackson was not asked by either party whether he would still approve the job of shelf facer.

         Standard of Review

         Section 39-71-1018(4), MCA provides for an appeal to the Workers Compensation Court from the Department of Labor and Industry's final order in this case. Warburton asserts that the decision below is "not supported by the evidence and is clearly erroneous." (Appeal from Final Decision.) The applicable ...

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