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Ingebretson v. Louisiana-Pacific Corp.

Court of Workers Compensation of Montana

December 14, 1994

VERNON L. INGEBRETSON Petitioner
v.
LOUISIANA-PACIFIC CORPORATION Respondent/Insurer/Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         Summary: Claimant sought temporary total disability benefits after termination of his employment for falling asleep at work. He had been back at work following an injury, even though not yet MMI, because the self-insured employer offered him work pursuant to section 39-71-701(4), MCA (1993).

         Held: Claimant fell asleep at work because the employer forced him, the day before, to work a job that caused him pain and ignored his request to be relieved from that work. Where the employer's policies caused him to fall asleep at work, the employer cannot blame claimant for his sleeping, particularly when that day's job assignment was inconsequential. Moreover, the Court finds as a matter of fact that the termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, meaning that the work was "no longer available" to claimant under section 39-71-701(4), MCA (1993), entitling him to reinstatement of temporary total disability benefits. The self-insured employer is liable for TTD benefits, as well as penalty and attorneys fees.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-72-701(1), MCA (1993).

Pursuant to section 39-72-701(1), MCA (1993), of the Occupational Disease Act, section 39-71-701(1), MCA (1993) of the Workers' Compensation Act regulates an occupational disease claimant's entitlement to temporary total disability benefits.

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-701(4), MCA (1993).

Although self-insured employer brought claimant back to work prior to MMI by offering him work within his restrictions (see section 39-71-701(4), MCA (1993)), it assigned him work that caused him pain, and refused to heed his requests for reassignment. When claimant fell asleep at work the next day, it was because his employer-caused pain had caused a sleepless night. Employer's purported termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, making the alternative job "no longer available" to claimant and entitling him to reinstatement of temporary total disability benefits. Claimant was entitled to temporary total disability benefits, attorneys fees, and penalty. Affirmed in Ingebretson v. Louisiana-Pacific Corporation, 272 Mont. 294 (1995) (No. 94-622).

Penalty: Insurer.

Although self-insured employer brought claimant back to work prior to MMI by offering him work within his restrictions (see section 39-71-701(4), MCA (1993)), it assigned him work that caused him pain, and refused to heed his requests for reassignment. When claimant fell asleep at work the next day, it was because his employer-caused pain had caused a sleepless night. Employer's purported termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, making the alternative job "no longer available" to claimant and entitling him to reinstatement of temporary total disability benefits. Claimant was entitled to temporary total disability benefits, attorneys fees, and penalty. Affirmed in Ingebretson v. Louisiana-Pacific Corporation, 272 Mont. 294 (1995) (No. 94-622).

Benefits: Temporary Total Disability Benefits.

Although self-insured employer brought claimant back to work prior to MMI by offering him work within his restrictions (see section 39-71-701(4), MCA (1993)), it assigned him work that caused him pain, and refused to heed his requests for reassignment. When claimant fell asleep at work the next day, it was because his employer-caused pain had caused a sleepless night. Employer's purported termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, making the alternative job "no longer available" to claimant and entitling him to reinstatement of temporary total disability benefits. Claimant was entitled to temporary total disability benefits, attorneys fees, and penalty. Affirmed in Ingebretson v. Louisiana-Pacific Corporation, 272 Mont. 294 (1995) (No. 94-622).

Vocational -- Return to Work Matters: Modified Employment.

Although self-insured employer brought claimant back to work prior to MMI by offering him work within his restrictions (see section 39-71-701(4), MCA (1993)), it assigned him work that caused him pain, and refused to heed his requests for reassignment. When claimant fell asleep at work the next day, it was because his employer-caused pain had caused a sleepless night. Employer's purported termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, making the alternative job "no longer available" to claimant and entitling him to reinstatement of temporary total disability benefits. Claimant was entitled to temporary total disability benefits, attorneys fees, and penalty. Affirmed in Ingebretson v. Louisiana-Pacific Corporation, 272 Mont. 294 (1995) (No. 94-622).

         The trial in this matter was held on June 14, 1994, in Kalispell, Montana. Petitioner, Vernon L. Ingebretson (claimant), was present and represented by Mr. Jon L. Heberling. Respondent, Louisiana-Pacific Corporation (LP), was represented by Mr. Jerry Schuster. Exhibits 1 through 7 were admitted into evidence, with the exception of Exhibit 6, page 0056, which was refused. Claimant, Pat Geer and John Denning testified. The parties stipulated that the deposition of claimant may be considered by the Court in reaching its decision.

         Issue: The issue in this case is claimant's entitlement to temporary total disability benefits following the termination of his employment on September 28, 1993. Claimant also seeks attorney fees and a penalty.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor of the witnesses, the deposition, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. At the time of trial claimant was fifty-five years old.

         2. On June 14, 1988, claimant was hired as a laborer for LP at the mill in Libby, Montana. From 1988 until 1993, claimant performed various jobs at LP. However, claimant worked most frequently as a forklift driver and at the time of his employment termination his "bid" job was that of forklift driver.

         3. Claimant first noticed a problem with his elbows in December of 1992. (Tr. at 31.)

         4. On June 2, 1993, claimant gave notice of an occupational disease to Pat Geer (Geer), plant manager for LP. The occupational disease was tendinitis in the right and left elbows. LP filled out an Employer's First Report dated June 2, 1993, which was also signed by claimant. (Ex. 2.)

         5. On June 11, 1993, claimant's occupational disease claim was denied by LP. (Ex. 3.)

         6. Claimant continued to work during the month of June 1993.

         7. On July 1, 1993, claimant was laid off due to a shortage of logs. (Ex. 6 at 92.)

         8. The Employment Relations Division (ERD) referred claimant to Dr. John Stephens. Dr. Stephens examined claimant on July 26, 1993. Dr. Stephens diagnosed bilateral lateral epicondylitis (Ex. 1 at 11) and opined that claimant suffered from an occupational disease. Dr. Stephens further opined that claimant could perform his usual job but suggested job modification. (Id.)

         9. On August 2, 1993, claimant returned to work at LP as a forklift driver. After one or two weeks, Geer told claimant to run the stacker. (Tr. at 34.) The stacker operator job was Vonna Anderson's job. (Tr. ...


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