ORDER AMENDING CONCLUSIONS OF LAW
has filed a petition for amendment to findings of fact and
conclusions of law. In the petition the respondent argues
that the Court erred in making benefits retroactive to
October 26, 1992; erred in imposing a penalty and attorney
fees; and erred in concluding that claimant's industrial
accident "caused" her disabling myofascial pain
syndrome. The matter has been briefed and is deemed
Date Of Benefits
Conclusion of Law 2 at page 16 the Court stated that benefits
should be retroactive from November 19, 1992. However, in its
judgment the Court made benefits retroactive to October 26,
1992, which was the date claimant's temporary total
disability benefits were terminated.
judgment sets out the correct date for reinstatement of
benefits. Dr. Murphy's release of claimant on October 26,
1992, was communicated in a conversation with Dr. Knutsen.
(Finding of Fact 17.) Similarly, Dr. Gilboy's deferral to
Dr. Murphy's release was communicated in a telephone
conversation with Dr. Knutsen. (Finding of Fact 18.) Dr.
Murphy did not give claimant a release to work (Murphy Dep.
at 6-7, 18), and there is no evidence that he told her she
could return to work. Dr. Gilboy did not give claimant a
release to work (Gilboy Dep. at 12-13), and there is no
evidence that he told her she could return to work on or
after October 26, 1992. Dr. Knutsen communicated the content
of his conversations to respondent's plant manager on
October 27, 1992 (Ex. 10 at 102) but not to claimant. Thus,
claimant's physicians never effectively communicated the
releases to claimant. Indeed, a November 12, 1992 letter from
respondent's counsel to claimant's counsel reflects a
dispute over whether the two doctors had in fact released
claimant. (Ex. 17.) Claimant was entitled to rely on what was
communicated, or not communicated, to her by her physicians.
Lacking evidence that the physicians communicated their
releases to claimant, claimant was not required to return to
work. Thus, benefits must be reinstated retroactive to the
date they were cut off, i.e., October 26, 1992.
light of the foregoing discussion, Finding of Fact 20 will be
amended as follows:
20. Based on his October 26, 1992 and November 2, 1992
conversations with Dr. Murphy and Dr. Gilboy, respectively,
Dr. Knutsen reasonably believed that claimant's treating
physicians had released her to return to work. Though oral,
the statements made by Drs. Murphy and Gilboy to Dr. Knutsen
amounted to their releases for claimant to return to at least
light-duty work. Dr. Gilboy and Dr. Murphy never gave
claimant a release to return to work on October 26, 1992, nor
did they ever tell her that she was released to return to
work on that date. (Gilboy Dep. at 12-13; Murphy Dep. at 6-7,
of Fact 49 a. will be amended to read as follows:
a. As of November 2, 1992, the claimant was released by her
treating physicians to return to work in at least a
light-duty position. However, the physicians never
effectively communicated the release to the claimant.
fourth full paragraph on page 16, which is part of Conclusion
of Law 2, will be amended to read as follows:
Since Dr. Dewey's release was not effectively and
unequivocally communicated to claimant, and since neither Dr.
Murphy and Dr. Gilboy gave claimant a written release to
return to work on October 26, 1992, and did not orally tell
her she could return to work at that time, claimant is
entitled to temporary total disability benefits from October
26, 1992, to the present.
also argues that claimant failed to prove that her disabling
condition was caused by her industrial accident and that she
is therefore entitled to benefits. Respondent cites Dr.
Dewey's testimony that claimant's industrial accident
did not "cause" her disabling myofascial pain
syndrome. (Dewey Dep. at 14, 27.) However, Dr. Dewey also
testified that the industrial accident
"precipitated" the disabling myofascial pain
syndrome. (Finding of Fact 31.)
says, "At most, the myofascial problem may have been a
preexisting condition which was aggravated by the
work-related injury. However, there was no admissible medical
evidence meeting the standard of proof necessary to establish
aggravation of a preexisting condition." (petition for
amendment at 8.) Having once more reviewed Dr. Dewey's
testimony, it is clear to the Court that Dr. Dewey was not
talking about "mere possibilities" when discussing
the role of claimant's industrial accident but was