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Osborne v. Planet Insurance Co.

Court of Workers Compensation of Montana

December 19, 1994

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

          AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

         The trial in this matter was held on February 17 and 18, 1994, in Butte, Montana, Petitioner, Lucy Osborne (claimant), was present and represented by Mr. Leonard J. Haxby. Respondent, Planet Insurance Company (Planet), was represented by Mr. Brendon J. Rohan. Claimant testified on her own behalf. James M. Montgomery, Mike Anderson and Dr. Bruce Knutsen also testified. The depositions of Bruce E. Knutsen, M.D., George M. Gilboy, M.D., Richard C. Dewey, M.D., and James P. Murphy, M.D., were filed with the Court for its consideration in reaching its decision. Exhibits 1 through 10, and 22 through 26 were admitted into evidence by stipulation of the parties. Exhibits 11 through 19 were admitted with respect to the reasonableness of the insurer's conduct, but not for other purposes. Exhibits 20 and 21, which are attached to the deposition of William Goodrich, were not admitted.

         Nature of the dispute: The dispute in this case involves the application of section 39-71-701 (4), MCA (1991), which provides for the termination of temporary total disability benefits where the worker's treating physician releases the worker to return to work in a modified or alternative position with the same or greater pay as the worker's time-of-mjury job even though the worker has not reached maximum medical healing. The principal issue in this case is whether the insurer improperly terminated claimant's temporary total disability benefits under section 39-71-710 (4), MCA (1991), and if soy the extent of the insurer's liability for temporary total disability benefits. The Court must also determine whether claimant's current physical complaints are attributable to her industrial accident.

         Bench Ruling: At the close of trial, the Court issued a partial bench ruling, holding:

         1. Dr. Gilboy's November 19, 1992, note stating that "Lucy has a Herniated Disc and cannot return to work at this time" rescinded any release to return to work that he had previously given for the claimant.

         2. Dr. Knutsen contacted claimant's treating physicians in October of 1992 and obtained their approval for claimant to return to light duty work.

         3. Under section 39-71-701(4), MCA, a detailed job analysis was unnecessary in this case.

         Issues withdrawn at trial: At the conclusion of trial the claimant withdrew her contention that the insurer wrongfully refused payment for necessary and reasonably incurred medical expenses.

         Having considered the PRETRIAL order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. On the date of her injury claimant was 41 years old and had been employed by Rhone-Poulenc for over 17 years.

         2. Claimant was injured on September 23, 1992, when she fell down some metal stairs at work. Her claim for compensation was accepted by Planet Insurance Company, which insured Rhone-Poulenc.

         3. Following her fall claimant was examined at the emergency room of St. James Community Hospital in Butte. The examining physician found there was no evidence of a "fracture, dislocation or other significant bone or joint abnormality." The ER report indicated that claimant sprained her wrists and suffered contusions of the left shoulder and right elbow. A splint was applied to her right wrist and Tylenol was prescribed for pain.

         4. Dr. George Gilboy, who has been the claimant's personal physician since 1974, examined claimant on September 28, 1992. At that time he noted that she had pulled muscles, was complaining of pain in both rib cages, had pain in her abdominal muscles, the recti, obliques, thighs, trapezius muscle of the neck, the left deltoid muscle and the musculature in her left forearm. He diagnosed multiple pulled muscles and recommended moist heat and an anti-inflammatory medication. (Gilboy Dep. at 6 & 7.)

         5. Rhone-Poulenc has a policy of returning injured workers to work as soon as possible after their injuries. The policy is premised on the idea that an early return to work benefits both the company and the employee. Rhone-Poulenc provides modified, light duty jobs to injured workers at their full pay. It consults with its medical director to determine the types of jobs an injured worker is capable of performing. The medical director also monitors each employee's return to work.

         6. Rhone-Poulenc employs Dr. Bruce Knutsen, a family practitioner, as its medical director for the Butte area.

         7. On September 30, 1992, Dr. Knutsen examined claimant and reviewed emergency room records and x-rays of claimant. He concluded that claimant could return to light-duty work notwithstanding her injuries. He informed claimant of his conclusion, however, claimant told him that she preferred to rely on the opinion of her personal physician.

         8. The claimant returned to Dr. Gilboy on October 6, 1992, complaining that she hurt all over and that the anti-inflammatory medications were not working. Dr. Gilboy prescribed physical therapy. He did not release her to return to work at that time.

         9. On October 13, 1992, Dr. Gilboy referred the claimant to Dr. James Murphy, an orthopedic surgeon, for consultation.

         10. Dr. Knutsen re-examined the claimant on October 14, 1992. He again encouraged her to return to light-duty work, however, claimant indicated she did not feel capable of returning to work at that time. Later that day Dr. Knutsen spoke with Dr. Gilboy, who "felt [it] would also be safe for Lucy to go to light duty, at least several hours per day." (Ex. 10 at 99.)

         11. Pursuant to the referral made by Dr. Gilboy on October 13, 1992, Dr. Murphy examined the claimant on October 14, 1992. At that time he provided claimant with a written statement excusing her from work until October 26, 1992. (Ex. 3 at 59.)

         12. On October 19, 1994, Dr. Knutsen told Rhone-Poulenc's workers' compensation insurance adjuster that the claimant had been released to work for at least two hours of light-duty work a day. (Ex. 10 at 99.)

         13. Jack E. Clary, Operations Manager for Rhone-Poulenc, wrote to the claimant on October 19, 1992, "confirm[ing] Mike Brown's telephone conversation with you on Friday evening October 16, 1992." The letter stated that claimant had been advised that she had been released to return to light-duty work. It stated in relevant part:

         You have been released for light duty work such as answering telephones and other light office tasks. According to the Company physician he has advised you of this, although you expressed your dissatisfaction to him about returning to work and your desire to recuperate at home. Dr. Knutsen has been in contact with your personal physician who concurred with your release for light duty.

         (Ex. 11, emphasis added.) The letter also warned claimant that her failure to report for light-duty work on October 19, 1992 "will be considered grounds for dismissal."

         14. However, on the following day, October 20, 1992, Dr. Gilboy issued a written statement saying:

Lucy has not been released to return to work. On 10/13/92 she was referred to J. P. Murphy, M.D."

(Ex. 1 at 2; emphasis added.)

         15. On October 22, 1992, claimant was seen by Dr. Rory Wood, a Missoula orthopedic surgeon, for a "2nd opinion." Dr. Wood diagnosed chronic cervical strain and recommended continued physical therapy, a cardiovascular exercise program, and a soft cervical collar to be worn at night. He advised her to return to the care of her regular physician. (Ex. 7.)

         16. Dr. Murphy re-examined claimant on October 26, 1992. She continued to complain of multiple pains in the left shoulder, right wrist, and left wrist. Dr. Murphy found no motor or sensory deficit or any other "pathology." The claimant asked to be referred to another doctor and Dr. Murphy advised her to talk to Dr. Knutsen for a referral. (Ex. 3 at 55.)

         17. Dr. Murphy did not give claimant a written release to return to work but in a conversation with Dr. Knutsen on October 26, 1992, he told Dr. Knutsen that claimant could return to work without restriction. (Ex. 10 at 100; Ex. 22 at 134; Knutsen Trial Testimony; Murphy Dep. at 13-15.)

         18. Dr. Knutsen talked with Dr. Gilboy on November 2, 1992. Dr. Gilboy told Dr. Knutsen that he would rely on Dr. Murphy's opinion concerning claimant's ability to return to work. (Knutsen Trial Testimony; Ex. 23; and see Gilboy Dep. at 17-18.)

         19. With regard to his testimony concerning his conversations with Drs. Murphy and Gilboy, as well as his testimony on other matters, I found Dr. Knutsen credible.

         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.)

         21. On November 3, 1992, Rhone-Poulenc's attorney sent claimant's attorney a check for temporary total disability benefits for the period up to October 26, 1992. The cover letter stated, however:

Rhone-Poulenc continues to maintain that your client was physically capable of returning to work on October 26, 1992. I will await your immediate response regarding whether your client intends to return to her employment at Rhone-Poulenc.

(Ex. 18.)

         22. Based on claimant's October 26, 1992 request to Dr. Murphy that she be referred to another physician, Dr. Murphy felt that claimant was no longer his patient. (Murphy Dep. at 12-15.)

         23. On November 12, 1992, Rhone-Poulenc's attorney wrote to claimant's attorney advising him that "it continues to be Rhone-Poulenc's position that Ms. Osborne is absent from work without justification and is now subject to termination." The letter related the conversations between Dr. Knutsen and Drs. Gilboy and Murphy, and warned that "[i]f Ms. Osborne does not return to work at 8:00 a.m. on Monday, November 16, 1992, her employment will be terminated-----" (Ex. 17.)

         24. Claimant did not return to work on November 16, 1992.

         25. Claimant returned to Dr. Gilboy on November 16, 1992, at which time she was still complaining of pain, primarily in her left neck and shoulder, with burning down her left arm. (Gilboy Dep. at 20-21.) An MRI performed that same day revealed a C6-7 herniated disc causing Dr. Gilboy to refer the claimant to Dr. Richard Dewey, a neurosurgeon, for consultation. (Id. at 21.)

         26. On November 19, 1992, Dr. Gilboy issued a second written excuse taking claimant off work, stating "Lucy has a Herniated Disc and cannot return to work at this time." (Gilboy Dep. Ex. 2, emphasis added.) This note ...


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