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City of Great Falls v. Damon

Court of Workers Compensation of Montana

October 26, 1994

TARA DAMON Respondent.


          Mike McCarter JUDGE.

         This is an appeal by the City of Great Falls from the Findings of Fact; Conclusions of Law; Order entered on July 22, 1994, by Stephen L. Wallace, hearing examiner for the Montana Department of Labor and Industry (DLI). The decision reversed the Initial Order of Determination issued by the Employment Relations Division on June 17, 1992, which had found that "option (c), return to a related occupation suited to the claimant's education and marketable skills, is appropriate for the claimant as outlined in the rehabilitation panel report."

         Factual Background

         Tara Damon (Damon) was injured in the course and scope of her employment on November 16, 1990, when a leaf vacuum machine ran over her and then backed over her again. She suffered significant abrasions to her right knee and thigh and abrasions and contusions to her low back. Dr. W.B. Ellis treated her in the emergency room and she was then under the care of Dr. Aimee Hachigian, an orthopedist. Her subsequent treatment included physical therapy and the development of a personalized program at a health club.

         Dr. Hachigian referred Damon to physiatrist, Dr. Bill Tacke, who became her primary treating physician. On July 31, 1991, Dr. Tacke performed a physiatric evaluation. His assessment of Damon's condition was: 1) traumatic strain injury, lower back and knees, 2) residual inflammation of lower back over sacroiliac joints secondary to original strain - possible mild myofascial pain syndrome, well controlled, and 3) impaired mobility and impaired physical labor activities. (Ex. 3 at 18.) At that time the doctor did not believe Damon had reached maximum medical improvement. He recommended "a good structured exercise program to build strength." (Id. at 26.) He further commented:

Vocationally I think that Tara will not be able to go back to her regular full labor position with Park and Rec. She needs to avoid heavy lifting as well as repetitive lifting, carrying, stooping, bending, reaching, pushing or pulling. She does need to modify any squatting activity to avoid stressing the right knee. She should avoid prolonged kneeling as well as standing and it is best that she also avoid prolonged sitting particularly if there is twisting involved such as operating equipment. . . .


         On August 22, 1991, Alexsis Risk Management, which adjusts claims for the City of Great Falls, designated Randy Kenyon (Kenyon) of Board Certified Rehabilitation Consultants (BCRC) as Damon's rehabilitation provider pursuant to the provisions of chapter 71, part 10 of Title 39, MCA, (1989). In October 1991, Kenyon submitted descriptions for several jobs, including the time-of-injury job (parks ground keeper), to Dr. Tacke for his review and approval. At a follow-up examination on November 6, 1991, Dr. Tacke and Damon reviewed the job descriptions. Dr. Tacke excluded a return to Damon's time-of-injury position. As to the other positions, Dr. Tacke wrote:

There were several other jobs reviewed. They are all in the area of light duty jobs and jobs she could do under the right circumstances. Several of them were assembly. That is primarily prolonged sitting. She presently would only be able to sit for 3 hours out of an 8 hour workday so an assembly job wouldn't be practical unless it is combined with something else. [Emphasis added.]

         Id. at 18. Dr. Tacke did not return the job descriptions to Kenyon at that time.

         On March 16, 1992, apparently at the prodding of Kenyon (see Exs.1 at 9 and 3 at16), Dr. Tacke completed a Physical Activities Checklist for Damon. (Ex. 1 at 30.) On the checklist, Dr. Tacke limited Damon to one hour of consecutive sitting and three hours total per day; one to two hours consecutive standing, up to a total of seven hours per day; and one to two hours consecutive walking, up to a total of five hours per day. Dr. Tacke further stated Damon should avoid repetitive lifting but could lift up to twenty pounds occasionally. He also restricted her pushing and pulling to ten minutes consecutively, up to one hour total per day. Dr. Tacke cautioned that Damon should avoid bending, squatting, kneeling, crawling and torso twisting. He stated: "She needs to be able to pace sitting/standing/walking on a regular basis per her schedule." (Ex. 1 at 12, emphasis in original.)

         On March 16, 1992, Dr. Tacke also approved the job analysis for the positions of computer casing assembly, computer assembly, electrical assembler and electronic subassembler (collectively referred to hereafter as "assembler jobs"). He approved the analysis for flagger, but restricted it to "selective settings." (Ex.1 at 25-26.) For each of the assembler jobs, Dr. Tacke wrote in the restrictions he placed on Damon with regard to sitting for not more than one hour consecutively and a maximum of three hours total each day. (Id. at 14, 17, 23, & 29.) For the positions of computer assembly and electrical assembler, he wrote that the work stations may need to be modified. Dr. Tacke's approval of each job, along with his written comments, appear on page two of a Job Analysis Narrative Description for each of the five approved positions. (Id. at 16 19, 25, 26 and 31.) The narrative contains only a summary description of the position and does not set forth details concerning the number of hours of standing, sitting, and walking, or details concerning other activities. However, each narrative was accompanied by a second document entitled On-site Job Analysis, which contains a detailed breakdown of the daily physical requirements of the job. The analysis for each of the assembler jobs sets forth a sitting requirement which exceeds the stated three hour physical limitation placed on Damon by Dr. Tacke. Further, as pointed out by the hearing examiner in his decision, the electronic subassembly position requires kneeling and squatting which Dr. Tacke cautioned Damon to avoid and the computer assembly positions require frequent lifting and twisting, thereby conflicting with Dr. Tacke's preclusion of repetitive lifting, and may require lifting up to twenty-five (25) pounds, which is beyond Damon's twenty (20) pound limit.

         Following Dr. Tacke's review of the job descriptions, the matter was then referred to a Rehabilitation Panel. The Panel issued its report on June 8, 1992. Initially, the report was signed only by the Panel Chair. However, on March 31, 1993, the other two Panel members filed their written concurrence. (Rehabilitation Panel Report Addendum.)

         The Rehabilitation Panel Report found that Damon "can continuously sit" and determined that "option (c), return to a related occupation suited to the claimant's education and marketable skills" is the first appropriate rehabilitation option for Damon. The flagger position "could not be verified as typically available." Thus, the Panel's approval of option (c) was based on ...

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