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Larson v. CIGNA Insurance Co.

Court of Workers Compensation of Montana

October 19, 1994

CARL LARSON Petitioner
v.
CIGNA INSURANCE COMPANY Respondent/Insurer for YELLOWSTONE FORD TRUCK SALES Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         The trial in this matter was held on March 8, 1994, in Helena, Montana. Petitioner, Carl Larson (claimant), was present and represented by Mr. James G. Edmiston. Respondent, CIGNA Insurance Company (CIGNA), was represented by Ms. Sara R. Sexe. Claimant testified on his own behalf. Michelle Fairclough and Juanita Hooper also testified. The depositions of Robert Wilson, JoAnn Gordon, Elmer Kobold, M.D., Michelle Fairclough and William S. Shaw, M.D. were filed and considered by the Court. Exhibits 1 through 10 were admitted into evidence by stipulation of the parties. Exhibit 11 was admitted over CIGNA's objection.

         At the end of the hearing the Court made preliminary findings of fact, as follows:

1. After his December 15, 1981 layoff from his employment, claimant considered himself unable to work on account of his heart condition. (Tr. at 121.)
2. CIGNA was made aware that claimant applied for Social Security disability benefits because of his heart condition. (Tr. at 118.) At least initially, CIGNA had no reason to know that the hernia was disabling.

         The Court agreed to reexamine these findings in light of the post-trial proposed findings of the parties. Having done so, the Court affirms these preliminary findings and makes them final.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses appearing at trial the exhibits and depositions, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant was seventy years old at the time of trial.

         2. Until his last day of employment on December 15, 1981, the claimant worked in the truck parts business for approximately thirty years. From 1977 until December 15, 1981, he was parts manager for Yellowstone Ford Truck Sales in Billings, Montana. (Tr. at 11.)

         3. On August 22, 1980, the claimant suffered a heart attack and was off work for several months thereafter. (Tr. at 38; Ex. 4 at 51.) On October 13, 1980, he underwent heart catheterization. (Ex. 12 at 52.) On October 16, 1980, he underwent open heart surgery involving a resection of a left ventricular aneurysm. (Ex. 7 at 157 and see generally Ex. 7 at 100 - 159; Tr. at 39.) In April of 1981, he had a second heart catheterization. (Tr. at 39; Ex. 7 at 72.) Claimant was unsure when he returned to work but agreed he probably went back to work full-time sometime during the Spring of 1981. (Tr. at 40.)

         4. When he returned to work claimant assigned heavier tasks to other employees. (Tr. at 42, 56.)

         5. On July 15, 1981, claimant suffered a left inguinal hernia when he lifted a one-hundred and fifty (150) pound truck spring. (Tr. at 40) The injury occurred in the course and scope of claimant's employment with Yellowstone Ford Truck Sales. (Ex. 2 at 24.)

         6. At the time of the injury Yellowstone Ford was insured by CIGNA.

         7. CIGNA accepted liability for claimant's injury and paid medical benefits and temporary total disability benefits.

         8. On September 4, 1981, claimant had hernia repair surgery. (Ex. 3 at 24.)

         9. The claimant returned to work in October 1981. At that time claimant's doctor considered his hernia one hundred (100 %) percent healed. (Kobold Dep. at 25.)

         10. Claimant does not recall his hernia causing any particular problems or pain upon his return to work in October 1981.

         11. Claimant's normal job duties included heavy lifting of parts and engines and running up and downstairs. Following his heart attack, claimant had difficulty performing his job.

         12. On December 15, 1981, claimant was laid off work because of his inability to perform his job. (Tr. at 43; Wilson Dep. Ex. 3.) Robert Wilson, the president and general manager of Yellowstone Ford Truck Sales, wrote a letter stating in pertinent part: "Due to your present physical condition, we feel that you are unable to carry out your assigned duties; therefore, Yellowstone Ford Truck Sales, Inc. is putting you on disability for 90 days, during which time you will be eligible for disability income from Transamerica Occidental Insurance Co." (Wilson Dep., Ex. No. 3)

         13. A December 18, 1981 note of one of the physicians treating claimant's heart condition noted:

SYMPTOMS: Shortness of breath, chest central right side more lately than before.
ASSESSMENT: He is more tired and short of breath than he was before and has lost his job because he is ...

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