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Gates v. Liberty Northwest Insurance Co.

Court of Workers Compensation of Montana

December 29, 1995

JAN GATES Petitioner
v.
LIBERTY NORTHWEST INSURANCE COMPANY Respondent/Insurer for DARBY LUMBER Employer.

          Submitted: December 11, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: 34-year old lumber mill worker fell and twisted his back, leading to severe back pain. A CT scan indicated a herniated disk. Although unable to return to his time of injury job, claimant was capable, according to medical and vocational evidence, of working in various positions paying less than $7 an hour, suggesting a wage loss of over two dollars an hour. Claimant, who did not actively seek employment, requested permanent partial disability benefits based on wage loss. While the insurer argued claimant could work other jobs paying his time of injury wage or higher, the Court was not persuaded such jobs were available within a reasonable distance of claimant's residence or could be obtained and performed by claimant. The parties also disputed claimant's entitlement to PPD benefits for lost ability to perform labor. While the insurer offered no assistance to claimant in finding work, claimant was hostile to the insurer's vocational consultant.

         Held: While claimant previously worked in a heavy-labor job, he is now limited to light labor based on his physical limitations (ability to lift certain weights), even though he may be able to perform some jobs falling into a medium category. The wage loss claim is premature where claimant has not sought work and has not yet received the rehabilitation services mandated by statute. The insurer is ordered to appoint a rehabilitation provider who shall assist claimant in preparing a rehabilitation plan. Claimant is ordered to cooperate and put forth his best efforts in seeking employment. Wage loss shall be assessed after rehabilitation efforts. Request for penalty and attorneys fees denied.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA (1993). Where a worker does not immediately return to work, the rehabilitation requirement of section 39-71-2001, MCA, must be met before any determination is made regarding claimant's post-injury wages.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA (1993). If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time when the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Vocational -- Return to Work Matters: Labor Market. When assessing wage loss for purposes of permanent partial disability benefits, court will not consider jobs not available within a reasonable distance of claimant's home or which claimant would not be able to obtain and perform.
Benefits: Rehabilitation Benefits: Proof of Wage Loss. Where a worker does not immediately return to work, the rehabilitation requirement of section 39-71-2001, MCA (1993), must be met before any determination is made regarding claimant's post-injury wages.
Benefits: Rehabilitation Benefits: Proof of Wage Loss. If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time when the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Benefits: Rehabilitation Benefits: Generally. If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time when the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Benefits: Rehabilitation Benefits: Retraining. If a rehabilitation plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Benefits: Rehabilitation Benefits: Rehabilitation Plans. If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Benefits: Rehabilitation Benefits: Rehabilitation Providers. Where claimant has a wage loss, the insurer must immediately designate a rehabilitation provider who shall assist claimant in developing a rehabilitation plan in accordance with section 39-71-2001, MCA (1993).
Benefits: Rehabilitation Benefits: Rehabilitation Plans. Where claimant has a wage loss, the insurer must immediately designate a rehabilitation provider who shall assist claimant in developing a rehabilitation plan in accordance with section 39-71-2001, MCA (1993).
Benefits: Permanent Partial Benefits: Labor Capacity. While claimant previously worked in a heavy-labor job, he is now limited to light labor based on his physical limitations, even though he may be able to perform some jobs falling into a medium category.
Benefits: Permanent Partial Benefits: Generally. If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Wages: Wage Loss. Where a worker does not immediately return to work, the rehabilitation requirement of section 39-71-2001, MCA (1993), must be met before any determination is made regarding claimant's post-injury wages.
Wages: Wage Loss. If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Wages: Wage Loss. When assessing wage loss for purposes of permanent partial disability benefits, court will not consider jobs not available within a reasonable distance of claimant's home or which claimant would not be able to obtain and perform.

         The trial in this matter came on December 11, 1995, in Kalispell, Montana. Petitioner, Jan Gates (claimant), was present and represented by Ms. Laurie Wallace. Respondent was represented by Mr. Larry W. Jones. Opening statements were made by counsel. Exhibits 1 through 16 were admitted by stipulation. Additionally, the deposition of Dr. Sable was submitted for the Court's consideration. The petitioner and Gerry B. Blackman were sworn and testified.

         Issues presented: Pursuant to section 39-71-703(3)(c) and (d), MCA, the petitioner seeks permanent partial disability benefits for wage loss and physical restrictions.

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

         FINDINGS OF FACT

         1. Petitioner is 34 years old. He is common-law married and has two young children. He has an eighth grade education.

         2. Claimant has worked a variety of jobs, generally doing "whatever he can." He worked on a seismograph crew around 1980. He worked at several restaurants in Texas as a dishwasher and prep-cook between 1981 and 1985. He has also delivered pizzas, been self-employed as an auto mechanic for a short time, and worked as a hot-tar roofer for a short time. Claimant returned to Montana and settled in the Hamilton area around 1990. After returning to Montana, claimant went to work for Jim Blue Logging in November of 1990. He was a truck mechanic's helper but did little actual mechanic work . He then worked as a truck detailer for one month in June of 1991. His next job was building log homes with Neville Log Homes in August of 1991. His employment with Neville lasted until November 1992. He then went to work for Darby Lumber in March 1993 and continued working there until he was injured. Over the years he has had gaps in his employment due to medical problems and lack of job opportunities.

         3. Claimant was born in Missoula, Montana, and has resided in western Montana for most of his life. With the exception of several years spent in Texas and Minnesota, he has resided in the Bitterroot Valley since around 1980, living in the Darby, Hamilton, and Victor areas.

         4. For the last four years claimant has lived five miles south of Connor, Montana. His home is approximately 80 miles south of Missoula.

         5. At Darby Lumber claimant started work on the graveyard shift doing cleaning. He then worked on the green chain at the stud mill. He next took a position where he rotated every two hours between the green chain, a spotter position, and rover. He then began training as a board edger, however, he was injured about a week later.

         6. Claimant was injured on August 16, 1993 when, after removing a jam from the board edger, he fell and twisted his back. He felt his back snap. He finished his shift but his back continued to hurt. Claimant was off work for a week, then returned to work for an additional three months. He ultimately quit due to continuing back pain.

         7. Claimant was examined by Dr. Alan Rossi on the same day as his injury. (Ex. 8 at 44.) Dr. Rossi noted that claimant had intermittent back pain in the past and that x-rays had been taken in April of 1992.Dr. Rossi diagnosed a "possible acute herniated disc" and arranged for a CT scan of his spine. He prescribed anti-inflammations and muscle relaxants.

         8. The CT scan of claimant's lumbar spine revealed a "small lt. sided disc herniation at L4-5." (Id. at 46.) Dr. Rossi felt the CT results were consistent with claimant's complaints and on November 30, 1993, he referred him to Dr. Richard Dewey, a neurosurgeon, for further treatment. (Id.)

         9. Dr. Dewey examined claimant on December 7, 1993. His office notes reflect that claimant had returned to work one week after the injury, but that on "November 12 he was standing in his front yard. He experienced a recurrence of severe back pain and left leg pain which has persisted." (Ex. 6 at 39.) Dr. Dewey agreed that the CT scan showed a small disc herniation at L4-5. He felt that surgical intervention would likely be required but wanted to first try conservative measures to alleviate the symptoms. He also recommended an EMG of the left leg. (Id. at 40.)

         10. An EMG was administered by Dr. Gary Cooney on December 7, 1993. It was normal in all aspects. (Ex. 7.) Dr. Cooney noted that "[t]hese findings do not categorically exclude the possibility of a recent lumbosacral nerve root injury, however." (Id.)

         11. Dr. Dewey advised claimant to begin a stretching program and requested he return for follow-up. After examining claimant on January 20, 1994, Dr. Dewey felt he could no longer perform heavy labor but that he did not require surgery. (Ex. 4 at 28.)

         12. Claimant returned to Dr. Dewey on March 15, 1994 reporting an increase in pain in his back and lower left extremity. Another EMG was obtained, again with normal results. On March 24, 1994, an MRI was done. It revealed very mild degenerative changes. Dr. Dewey reviewed the MRI and found no disc herniation or nerve root compression. (Ex. 4 at 28[1].)

         13. At the request of claimant's attorney, Dr. Michael D. Lahey, an orthopedic surgeon, evaluated claimant on May 4, 1994. Dr. Lahey ordered new x-rays which revealed "decreased disc height at L3-4 and mild angulation through that disc space with flexion/extension maneuvers." (Ex. 1 at 2.) His impression was that claimant suffered from "[l]umbosacal strain, presumably due to discogenic or facet pain in the lumbar spine" and "[d]econditioning." Dr. Lahey recommended physical therapy and continued use of anti-inflammatories. (Id. at 3.)

         14. Claimant again saw Dr. Dewey on June 6, 1994. His leg pain was gone, however, he was still having muscle spasms in the back and thigh. Dr. Dewey emphasized the need for continued stretching and provided the claimant with a prescription to the Lost Trails Hot Springs for a hot bath with stretching. (Ex. 6 at 42.)

         15. Dr. Lahey then became claimant's treating physician. On July 18, 1994, Dr. Lahey prescribed an "elastic lumbosacral arthrosis [sic]." He also referred claimant to Marcus Daly Hospital for a low-back conditioning program. (Ex. 1 at 5.)

         16. Claimant has undergone physiotherapy at Marcus Daly Hospital since July 25, 1994. (Ex. 5.) He reported to Dr. Cheatle in December 1994 that the therapy had improved his ...


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