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Petitioner v. City of Great Falls

Court of Workers Compensation of Montana

December 14, 1994

JOSEPH McCRACKEN Petitioner
v.
CITY OF GREAT FALLS Respondent/Employer DEPARTMENT OF LABOR & INDUSTRY Intervenor.

          ORDER DISMISSING PETITION WITHOUT PREJUDICE

          Mike McCarter Judge

         Summary: Petition presented jurisdictional question whether dispute about relationship of cervical condition to injury could be resolved in proceeding arising through invocation of statutory impairment rating procedures.

         Held: A dispute concerning the relatedness of claimant's cervical condition to his injury is not subject to the procedures of section 39-71-711, MCA (1987), and is subject to statutory mediation requirements. Where mediation has not yet taken place, the Workers' Compensation Court does not yet have jurisdiction over the cervical dispute.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-711, MCA (1987). A dispute concerning the relatedness of claimant's cervical condition to his injury is not subject to the procedures of section 39-71-711, MCA (1987), and is subject to statutory mediation requirements. Where mediation has not yet taken place, the Workers' Compensation Court does not yet have jurisdiction over the cervical dispute.
Jurisdiction: Mediation. A dispute concerning the relatedness of claimant's cervical condition to his injury is not subject to the procedures of section 39-71-711, MCA (1987), and is subject to statutory mediation requirements. Where mediation has not yet taken place, the Workers' Compensation Court does not yet have jurisdiction over the cervical dispute.

         From the Court's perspective, this case has a long and interesting history. The Petition for Hearing was filed February 7, 1992. The case was one of the first cases heard by the current judge. That hearing was held on September 9, 1993. Since the time of hearing there have been additional developments. As a result of those developments, three of five issues identified in an April 6, 1994 Order Regarding Briefing have been rendered moot. One of the two remaining issues was whether the Court presently has jurisdiction over the fifth and final issue. Having concluded that it does not, the Court now dismisses the petition without prejudice.

         Factual and Procedural Background

         The petitioner, who is also the claimant, is Joseph McCracken (McCracken). McCracken is a fireman for the City of Great Falls.

         On October 31, 1987, McCracken was hurt while fighting a motel fire. He fell, landing on his back. He felt immediate pain in his right shoulder. He was thereafter treated by Dr. Robert Chambers, an orthopedic surgeon. Dr. Chambers testified at trial.

         At the time of the injury, the City of Great Falls (City) was self-insured. It accepted liability for the injury.

         In 1990 the City requested Dr. Chambers to provide an impairment rating with respect to McCracken's injuries. (Tr. at 100.) Dr. Chambers refused, stating that he believed that an impairment rating should be provided by an impartial physician rather than the treating physician. (Id., Ex. 36 at 19.)

         Subsequently, one or both parties invoked the impairment rating procedures of section 39-71-711, MCA (1987). Pursuant to those procedures, claimant was examined by three different physicians designated by the Department of Labor and Industry. The first physician rated claimant's impairment at ten (10%) percent, the second at sixteen (16%) percent. The third rated claimant at thirteen (13%) percent, but apportioned four (4%) percent to non-job related factors, arriving at an ultimate nine (9%) percent rating. All three physicians rated claimant with respect to both his shoulder injury and a cervical neck injury. The breakdown between the two was as follows:

Neck

Shoulder

Apportionment

Total Impairment

First Physician

5%

5%

10%

Second Physician

8%

8%

16%

Third Physician

6%

7%

-4%

9%

         Subsection (3)(b)(iii) of 39-71-711, MCA, provides that unless the insurer or claimant petitions the Workers' Compensation Court within fifteen (15) days after the third impairment rating, the insurer shall pay an impairment award based on the third rating. In this case, claimant filed a petition on February 7, 1992, contesting the impairment rating. At trial the parties stipulated that the petition was timely.

         Initially, numerous issues were presented to the Court. Those issues were reduced to five questions phrased by the Court after a conference with counsel.[1] The ultimate focus of the dispute, however, was twofold: first, whether the rating of the shoulder was adequate (raised by claimant) and, second, whether the claimant's cervical condition is related to his industrial accident (raised by the City).

         Medical information developed after trial apparently has convinced the claimant and the City, as well as Intervenor (Department of Labor and Industry), that the prior ratings of the shoulder no longer accurately reflect the extent of claimant's shoulder impairment. Thus, they have agreed to ...


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