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Ware v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

May 15, 1996

RICHARD WARE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for HAGEMAN CONSTRUCTION Employer.

          Submitted: March 23, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: During November 1992, 41 year old carpenter suffered surgery injury, for which insurer accepted liability. Claimant continued working in a modified capacity, then moved to Missoula to be closer to his children. During 1995, he received shoulder surgery. He now seeks TTD back to the time of the original injury.

         Held: Claimant is not entitled to TTD benefits from December 15, 1992 through April 1993 because his loss of wages during that time was not the result of his injury. His own testimony established he could have continued working; he lost wages because he decided to move, not because his injury caused him to cease work. He is also not entitled to TTD from April 1993 through early January 1995 where he failed to establish that periods of unemployment were due to flare-ups of his condition or anything other than lack of immediate jobs within his labor market. Claimant is, however, entitled to TTD benefits after he ceased working due to an acute recurrence of his shoulder problems. TTD should have continued during the period after surgery was recommended, but the insurer refused to cover surgery until claimant had gone through a period of more conservative treatment.

         Topics:

Benefits: Temporary Total Benefits. Under 1991 Act, claimant not entitled to TTD during period he lost wages not as the result of his injury, but because he chose to move to be nearer his children. He was also not entitled to TTD during period for which he failed to establish he was unemployed as the result of flare-ups of his condition and not merely lack of immediate jobs in his labor market. He was entitled to back TTD, however, for period after which his shoulder condition deteriorated such that surgery was recommended, including period during which insurer insisted on further conservative treatment prior to paying for surgery.
Benefits: Temporary Total Benefits. An injured worker capable of continuing to perform work within his or her labor market is ineligible for TTD benefits whether or not the worker continues to work as a true employee or undertakes self-employment. Weaver v. Buttrey Food and Drug, 255 Mont. 90, 96, 841 P.2d 476, 480 (1992).
Wages: Wage Loss. Under 1991 Act, claimant not entitled to TTD during period he lost wages not as the result of his injury, but because he chose to move to be nearer his children. He was also not entitled to TTD during period for which he failed to establish he was unemployed as the result of flare-ups of his condition and not merely lack of immediate jobs in his labor market. He was entitled to back TTD, however, for period after which his shoulder condition deteriorated such that surgery was recommended, including period during which insurer insisted on further conservative treatment prior to paying for surgery.

         The trial in this matter came on March 1, 1996. Petitioner, Richard Ware (claimant), was present and represented by Mr. Rex Palmer. The Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Charles G. Adams.

         Exhibits and Depositions admitted at trial: Exhibits 1 through 32 and 37 through 41 were admitted by stipulation. Exhibits 33 through 36 were admitted over the objection of Mr. Adams. Exhibits 42 through 45A were admitted without objection. The deposition of the claimant was submitted for the Court's consideration. The Court also received a deposition of Dennis Small, a claims adjuster for the State Fund. However, the parties did not request the Court to consider Mr. Small's deposition.

         Issue presented: In November 1992, the claimant injured his right shoulder in a work-related accident. Thereafter, he worked off and on until September 1995, when he underwent shoulder surgery and was placed, for the first time, on temporary total disability benefits. Through his petition in this case he is seeking payment of additional temporary total disability benefits retroactive to December 1992.

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

         FINDINGS OF FACT

         1. Claimant is a 41 year old carpenter. He is married but separated from his wife. He has four children who reside in Missouri.

         2. Claimant is a high school graduate and attended college for two and one-half years.

         3. His prior work experience includes jobs as a meat cutter, clerk/typist and draftsman. He began working as a carpenter in 1980. Since then he has performed virtually all aspects of carpentry and related work. He has done concrete work, wiring, framing, roofing, and finish work.

         4. For a short period of time in 1992 he was co-owner of a construction company, Alpine Construction, in Bozeman. That business folded after a short time.

         Gannon Job

         5. In July 1992, claimant went to work for Hageman Construction, which is owned by Doug Hageman. Hageman was building a large home near Bozeman. The project was referred to as the Gannon job.

         6. At the time he went to work for Hageman, claimant informed Hageman that he would work only until mid-December since he intended to move at that time to Missouri to be closer to his children.

         7. While working on the Gannon project the claimant performed a full range of carpentry duties. He used hand and power tools and read blueprints. He carried building materials and equipment which sometimes weighed over 100 pounds. He framed doors, walls, windows, floors, and roofs. (Ex. 24 at 8.)

         Industrial Accident and Claim

         8. On a day in early November 1992, claimant and another carpenter were moving a large beam which had been previously set on the top plate of a framed wall. The beam was composed of four 20 foot, 2 by 12s joined together. As they were attempting to move it, the beam slipped. Claimant caught it with cupped hands, receiving a weight of approximately 180 to 200 pounds. Claimant immediately felt like hot water had been poured on his back and shoulders. He thereafter experienced pain. (Ware Dep. at 31-32; trial testimony.)

         9. Claimant filed a written Claim for Compensation on February 3, 1993. (Ex. 1.) The State Fund, which insured Hageman, accepted liability for the claim.

         Initial Medical Treatment

         10. Following the injury claimant "took it pretty easy the rest of the day." (Ware Dep. at 32.) He continued working.

         11. Claimant first sought medical care on November 13, 1992, when he went to see Dr. Stephen Forte, a chiropractor. Dr. Forte examined claimant and diagnosed lumbo-sacral, thoracic, and cervical back strain, along with spondylosis. He recommended treatment "three times a week for three weeks with spinal manipulative therapy, moist heat, ice, electrical therpy [sic] to normalize and reduce swelling, inflammation and joint function. Then twice a week for three weeks with the above followed by a re-exam." (Ex. 19 at 2.) Dr. Forte noted that claimant planned on moving out-of-state before his treatment would be completed. (Id.)

         Continued Work and Move to Missouri

         12. Claimant continued working on the Gannon project but in a lighter, modified capacity. On the advice of Dr. Forte, claimant avoided lifting heavy objects and limited his work to below shoulder height. (Ware Dep. at 33.)

         13. In mid-December claimant moved to Missouri as previously planned.

         14. At the time of his move the Gannon project was unfinished. Claimant estimated that the house was not completed until March or April 1993.

         15. Claimant was hired by Hageman as a "lead carpenter." Following his injury, he was able to modify his specific duties and avoid the heavier jobs. He continued working. There was no evidence indicating that, had he chosen to do so, he could not have continued working on the Gannon project until its completion.

         16. Shortly after moving to Missouri, claimant worked approximately 24 hours painting and doing minor electrical work for his Uncle Clyde. He was paid approximately $6.00 per hour. The work arrangement was an informal one. His Uncle Clyde paid him without any specific accounting for his hours of work.

         17. Claimant then applied for and received unemployment benefits from January to July 1993. (Ware Dep. at 35-36.) During that time claimant looked for work but was unable to find employment. He indicated that he was capable of performing employment during that time.

         18. Following termination of his unemployment benefits, claimant adopted the business name "RW Construction" and did several jobs. He bid some of his work on a bid form used by his prior business, Alpine Construction, using a "RW Construction" sticker pasted over the old ...


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