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Yarde v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

September 7, 1995

PAMELA SUE YARDE Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for RIVERSIDE HEALTH CARE Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: Nursing home dietary aide argued her slip and fall permanently aggravated her back condition, preventing her from returning to her time-of-injury job. She sought an increase in her TTD rate, an award of rehabilitation benefits, penalty and attorneys fees.

         Held: The accident permanently aggravated claimant's pre-existing back conditions by making them symptomatic. Although various jobs identified by the rehabilitation counselor may be appropriate and immediately available, claimant's ability to work is limited by an allergy to products common in the workplace, meaning her ability to stay in any public job is "hit or miss." Claimant's proposed training program as a medical transcriptionist was appropriate and would begin a career that can be performed at home or in a non-public office environment, involving minimal exposure to allergens. Claimant is thus entitled to rehabilitation benefits not to exceed 104 weeks to enable her to continue training toward work as a medical transcriptionist.

         Topics:

         Benefits: Rehabilitation Benefits: Generally. Where claimant's ability to work in public settings was limited by her pre-existing allergies, her plan to retrain as a medical transcriptionist, a profession that can be pursued at home or in a non-public office, was reasonable and necessary as part of her rehabilitation following a back injury that prevented return to her time-of-injury job. Even though other jobs existed that she could perform without retraining, it was "hit or miss" whether she would be able to function in the public workplaces required by those jobs.

         Benefits: Rehabilitation Benefits: Rehabilitation Plans. Where claimant's ability to work in public settings was limited by her pre-existing allergies, her plan to retrain as a medical transcriptionist, a profession that can be pursued at home or in a non-public office, was reasonable and necessary as part of her rehabilitation following a back injury that prevented return to her time-of-injury job. Even though other jobs existed that she could perform without retraining, it was "hit or miss" whether she would be able to function in the public workplaces required by those jobs.

         Penalties: Insurers. Although claims adjuster was inexperienced and made mistakes, penalty was not appropriate where the mistakes were corrected before they impacted claimant's receipt of benefits. No harm, no foul.

         Penalties: Insurers. Where there was no evidence insurer attempted to manipulate preparation of job description by certified rehabilitation consultant, or attempted to influence physician reviewing the JA, insurer did not act unreasonably by submitting time-of-injury job for physician's review even though job was ultimately disapproved.

         Penalties: Insurers. Under section 39-71-2001, MCA (1993), insurer did not act unreasonably in limiting designated rehabilitation consultant's initial assignment to determining whether claimant, without retraining, could return to work in a job that paid wages comparable to her time-of-injury job.

         Surveillance. Videotaped surveillance was ineffectual and useless where video was of poor quality, with claimant barely visible, and merely showed her, on a single day, getting in and out of a car after classes, and arriving at and sitting at a laundromat. The short action sequences did not show activities inconsistent with claimant's pain complaints. The tape should have remained in the insurer's files and not have been presented in Court.

         Vocational -- Return to Work Matters: Retraining. Where claimant's ability to work in public settings was limited by her pre-existing allergies, her plan to retrain as a medical transcriptionist, a profession that can be pursued at home or in a non-public office, was reasonable and necessary as part of her rehabilitation following a back injury that prevented return to her time-of-injury job. Even though other jobs existed that she could perform without retraining, it was "hit or miss" whether she would be able to function in the public workplaces required by those jobs.

         The trial in this matter was held on July 13 and 14, 1995, in Missoula, Montana. Petitioner, Pamela Sue Yarde (claimant), was present and represented by Mr. Allan M. McGarvey. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones. The claimant testified on her own behalf. Cynthia Bean, Dr. James R. Burton, Dr. Dana Headapohl, Terri Roach, Richard A. Hawk, and Sandy Scholl also testified. The depositions of claimant, Dr. James R. Burton, Dr. David K. Murdock, Dr. Dana Headapohl, Terri Roach, and Neil Ostlie were submitted for the Court's consideration. Exhibits 1 through 3, 7, and 17 through 19 were admitted by stipulation. Exhibits 4, 5, 6, 9, 11, 12 and 14 were admitted over the objection of Mr. Jones. Exhibit 16 was admitted over the objection of Mr. McGarvey. Exhibit 15 was objected to by Mr. Jones and was refused. Exhibits 8, 10, and 13 were not offered.

         No transcript of trial testimony has been prepared.

         Issues Presented: Claimant asks the Court to find that her May 17, 1994 industrial accident permanently aggravated a preexisting back condition and disabled her from returning to her time-of-injury job. She further seeks an increase in her temporary total disability benefit rate and an award of rehabilitation benefits to enable her to attend school. Finally, she seeks a penalty, attorney fees, and costs.

         Partial Bench Ruling: At the close of trial, the Court entered a partial bench ruling. I determined that claimant in fact suffered a permanent aggravation to her preexisting low-back condition and that her low-back condition precludes her from returning to her time-of-injury job. I also held that claimant failed to prove that Liberty acted unreasonably and therefore denied her request for a penalty and attorney fees. Finally, I noted that claimant is entitled to costs. The remaining issues were deemed submitted for decision.

         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.Claimant is 37 years old. She is married and resides with her 11 year-old daughter in Deer Lodge, Montana.

         2.Claimant is a high school graduate. (Roach Dep., Ex. D.) She has recently returned to school and is attending Montana Tech in Butte. She is enrolled in the Office Technology Program with an emphasis in medical secretarial training. (Id.) Her only other education was a California real estate licensing course she took some time ago.

         3.In May of 1994 claimant was hired as a dietary aide at Riverside Health Care Center, which is a nursing home. Her job was to help out the cooks by doing dishes, setting up meal trays, cleaning the dining room, and performing other clean-up. (Id.)

         4.When she was hired the claimant was guaranteed 40 hours of work each week. She was also told that overtime hours would be available if she wished to work extra hours. She was not required to work overtime. Her hourly rate of pay was $4.80. (Id.)

         5.Claimant worked for Riverside for approximately three weeks. The dietary manager was on vacation during that time and claimant did in fact work some overtime hours. She was paid on the first and fifteenth of each month. During the period ending May 15, 1994, claimant worked a total of 18.5 hours. (Ex. 7.) While there is no independent confirmation by way of business records or testimony, in a letter to the insurer the claimant's attorney represented that these hours were worked on two days. (Id.) Claimant's pay stub for the period of May 16, 1994 to May 31, 1994, shows that she worked a total of 105.9 hours. (Id.) Her pay stub for the period ending June 15, 1994, shows 18.60 hours which, according to claimant's attorney, were worked over a two day period. (Id.)

         6.On May 17, 1994, while working at Riverside, claimant slipped and fell on a wet floor, landing on her buttocks. She experienced immediate discomfort in her tailbone and low-back areas but completed her work shift. By the time she arrived home after work she was experiencing sharp shooting pain on the left side of her low back and into her buttocks and legs.

         7.Claimant initially sought medical treatment on May 19, 1994, from Dr. M. S. Woltanski at the Western Montana Clinic in Missoula. (Ex. 1.16 at 3.[1]) At that time she was suffering "low back pain, probably musculoligamentous". Dr. Woltanski prescribed rest and medication (Ansaid and Flexeril). (Id.) She again saw Dr. Woltanski on May 24, 1994, for increasing back pain. (Id. at 1.) The doctor urged her to get more rest and use heat. (Id.) Her pain increased and on June 4, 1994, she went to the emergency room of St. Patrick Hospital. (Ex. 1.7.) At that time she reported low-back pain radiating into her left buttocks and some numbness of the left foot. (Ex. 1.7 at 1.)

         8.Claimant continued working until early June 1994, at which time she was unable to continue working. She attempted to return to work but later on was able to work for only an hour and a half. She has not worked since that time.

         9.At the time of claimant's industrial accident, Riverside was insured by Liberty Northwest Insurance Corporation. She filed a claim and that claim was accepted by Liberty.

         10.Liberty commenced paying temporary total disability benefits based on a $4.80 an hour wage and 40 hour work week.

         11.On September 29, 1994, Liberty's claims examiner, Cynthia Bean, sent claimant a letter offering to settle her claim for $5, 248 and notifying her that her temporary total disability benefits were being terminated effective October 13, 1994. (Ex. 5.) In analyzing the claim, Bean initially determined that Liberty was liable for only 25% of claimant's injury. Her analysis was based on a report by Dr. James R. Burton, who by that time was treating claimant, that claimant's low-back condition was 75% attributable to a preexisting condition and 25% to her industrial accident. In essence, Bean was analyzing the claim as if it was one for occupational disease. Bean was a green claims examiner and her analysis was admittedly wrong.

         12.Claimant turned the matter over to her counsel, Mr. Allan M. McGarvey, who wrote a reply letter protesting the termination of benefits and skewering Bean's analysis of the claim. (Ex. 4.) Bean wisely relented and on October 5, 1994, notified McGarvey that Liberty was "reinstating Pam's temporary total disability benefits until further notice." (Ex. 6.)

         13.Claimant was thereafter evaluated by a panel of physicians designated by Liberty. The panel found claimant to be at maximum medical healing and by letter dated November 29, 1994, Bean again gave claimant 14-day notice of termination of temporary total disability benefits. (Ex. 9.) This time the notice stuck. Claimant's temporary total disability benefits were terminated and claimant does not request their reinstatement.

         14.An enumeration of claimant's various medical examinations and treatment is unnecessary for purposes of this decision and is therefore omitted.

         15.Claimant suffers from preexisting low-back abnormalities.

a. The first condition is a "lumbarization" of the S1 vertebra. Ordinarily there are five lumbar vertebrae. Each of these vertebrae are independent boney structures which are connected to the adjacent vertebrae by ligaments. The vertebrae interface at joints where they move or articulate with respect to one another. Movement between the vertebrae is cushioned by intervertebral discs, which act as shock absorbers. In most humans the last lumbar vertebra is the L5. Below it is the sacrum, which consists of vertebrae which are fused together and have no joints or discs. Normally, the L5 is followed by the S1 vertebrae. The S1 in turn is fused to the lower vertebrae which are collectively called the sacrum. In lumbarization, the vertebra which is ordinarily designated S1 is not fused to the next, lower vertebra. There may be one or more joints and a disc between it and the next lower, sacral vertebra. Thus, it is more like a lumber vertebra and is designated L6 rather than S1. In claimant the vertebra is an ...

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