AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
Ruling: At the close of trial, the Court issued a
partial bench ruling, holding:
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time" rescinded any release to return to work that he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.
Knutsen contacted claimant's treating physicians in
October of 1992 and obtained their approval for claimant to
return to light duty work.
Under section 39-71-701(4), MCA, a detailed job analysis was
unnecessary in this case.
withdrawn at trial: At the conclusion of trial the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
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:
the date of her injury claimant was 41 years old and had been
employed by Rhone-Poulenc for over 17 years.
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
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.
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.)
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
Rhone-Poulenc employs Dr. Bruce Knutsen, a family
practitioner, as its medical director for the Butte area.
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.
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.
October 13, 1992, Dr. Gilboy referred the claimant to Dr.
James Murphy, an orthopedic surgeon, for consultation.
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
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.)
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.)
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:
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.
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."
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,
(Ex. 1 at 2; emphasis added.)
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.
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.)
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.)
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.)
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.
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,
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
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
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.)
Claimant did not return to work on November 16, 1992.
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.)
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 ...