Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Osborne v. Planet Insurance Co.

Court of Workers Compensation of Montana

December 14, 1994

LUCY OSBORNE, Petitioner,
v.
PLANET INSURANCE COMPANY, Respondent/Insurer for RHONE-POULENC BASIC CHEMICAL COMPANY, Employer.

          ORDER AMENDING CONCLUSIONS OF LAW

          Mike McCarter JUDGE

         Respondent 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 submitted.

         Retroactive Date Of Benefits

         In 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.

         The 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.

         In 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, 18.)

         Finding 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.

         The 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.

         Causation

         Respondent 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.)

         Respondent 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.