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Ness v. Anaconda Minerals Co.

Court of Workers Compensation of Montana

February 3, 1995

HARRY A. NESS Petitioner
v.
ANACONDA MINERALS COMPANY, a division of ATLANTIC RICHFIELD COMPANY, INCORPORATED Respondent.

          DECISION GRANTING PARTIAL SUMMARY JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: On remand from the Supreme Court in Ness v. Anaconda Minerals Co., 257 Mont. 335, 849 P.2d 1021 (1993) (Ness I), claimant moved for summary judgment determining he was entitled to total disability benefits from the date the insurer terminated those benefits until his 65th birthday.

         Held: Based on the holding of Ness I, claimant is entitled only to extension of temporary total disability benefits through the date the insurer satisfied the fourth element of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), providing him notice of a physician's report determining his ability to work. Note: this decision was affirmed by the Montana Supreme Court in Ness v. Anaconda Minerals Co., 279 Mont. 472, 929 P.2d 205 (1996) (Ness II).

         Topics:

         Benefits: Termination of Benefits: Coles. Based on the holding of Ness v. Anaconda Minerals Co., 257 Mont. 335, 849 P.2d 1021 (1993) (Ness I), claimant is entitled only to extension of temporary total disability benefits through the date the insurer satisfied the fourth element of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), providing him notice of a physician's report determining his ability to work. [Note: this decision was affirmed by the Montana Supreme Court in Ness v. Anaconda Minerals Co., 279 Mont. 472, 929 P.2d 205 (1996) (Ness II).]

         Cases Discussed: Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985). Based on the holding of Ness v. Anaconda Minerals Co., 257 Mont. 335, 849 P.2d 1021 (1993) (Ness I), claimant is entitled only to extension of temporary total disability benefits through the date the insurer satisfied the fourth element of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), providing him notice of a physician's report determining his ability to work. [Note: this decision was affirmed by the Montana Supreme Court in Ness v. Anaconda Minerals Co., 279 Mont. 472, 929 P.2d 205 (1996) (Ness II).]

         This case is before the Court pursuant to a remand by the Montana Supreme Court in Ness v. Anaconda Minerals Company, 257 Mont. 335, 849 P.2d 1021 (1993). After remand the petitioner moved for partial summary judgment. The motion has been fully briefed and is now ready for decision.

         Factual and Procedural Background

         The essential facts in this case are set forth in the decision of the Supreme Court. We will briefly summarize them here.

         Petitioner, Harry Ness (claimant), was injured on October 14, 1981, while working for Anaconda Minerals Company (Anaconda). He was working on the belly pan of a D-8 Caterpillar when it fell and crushed him. He suffered severe, permanent and disabling injuries.

         Anaconda, which was self-insured, accepted liability for claimant's injuries and began paying total disability benefits. On October 19, 1982, claimant's treating physician, Dr. James P. Murphy, concluded that claimant had reached maximum healing and rated the extent of claimant's impairment at twenty-five (25%) percent. Based on Dr. Murphy's finding of maximum healing, but lacking any medical release approving claimant's return to work, Anaconda terminated claimant's temporary total disability benefits effective December 8, 1982. It then began paying permanent partial disability benefits, and continued those benefits until November 18, 1987, at which time it discontinued all benefits.

         On June 29, 1989, claimant filed a petition with this Court. He sought reinstatement of total disability benefits retroactive to December 8, 1982. A trial was held on September 5, 1989. On August 23, 1990, the Court entered judgment for Anaconda, concluding that claimant was not totally disabled after December 8, 1982. Claimant appealed.

         On March 24, 1993, the Montana Supreme Court reversed the decision of this Court. The majority held that Anaconda improperly terminated claimant's temporary total disability benefits because it failed to comply with the four-part test established in Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985). Ness, 257 Mont. at 339. That test requires:

(1)a physician's determination that the claimant is as far restored as the permanent character of his injuries will permit;
(2)a physician's determination of the claimant's physical restrictions resulting from an industrial accident;
(3)a physician's determination, based on his knowledge of the claimant's former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted ...

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