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Ranes v. Lumbermens Mutual Casualty Co.

Court of Workers Compensation of Montana

July 5, 1996

SHIRLEY RANES Petitioner
v.
LUMBERMENS MUTUAL CASUALTY COMPANY Respondent/Insurer for BUTTREY FOOD AND DRUG Employer.

          Submitted: June 17, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Bakery helper slipped and fell on back at work during July, 1994. Insurer accepted liability and paid temporary total disability benefits until November, 1994, when claimant returned to work. At that time, neither of two physicians treating claimant had released her to her time-of-injury job. Claimant suffered more pain and was again taken off work, but returned a few weeks later, after her doctor released her to modified work. The insurer had reinstated TTD, but again terminated benefits. Claimant's testimony she left work because modifications to the job were insufficient was not rebutted. In January 1995, a physical and rehabilitation medicine specialist who had been treating claimant following the injury diagnosed carpal tunnel syndrome, opining it was an occupational disease relating to the same employment. A panel physician agreed, finding no non-occupational factors. During June 1995, the rehabilitation specialist put her at maximum medical improvement, rated her at 5% whole person impairment, and released her to light duty work. The insurer began paying permanent partial disability benefits. Claimant testified she cannot return to bakery work because she drops things due to the CTS. Claimant seeks additional temporary total disability benefits as the result of either the injury or the OD, as well as attorneys fees and penalty.

         Held: Claimant was entitled to TTD relating to her injury where she quit the modified job because she was unable to do the work. Under section 39-71-701(4), MCA, she requalified for TTD because a modified job was no longer available to her. Claimant was entitled to TTD on the basis of the injury only through June 5, 1995, when the rehabilitation specialist placed her at MMI. However, she is entitled to TTD from June 5, 1995, through the present because of her carpal tunnel syndrome. This is because she has not yet been placed at MMI relating to that condition and it is not yet clear how that condition will affect her employment options. The insurer is entitled to credit for permanent partial disability benefits paid to her. Penalty and attorneys fees are denied.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-701(4), MCA (1993). Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits because the modified job is no longer available to her.

         Benefits: Temporary Total Benefits. Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits under section 39-71-701(4), MCA (1993) because the modified job is no longer available to her.

         Benefits: Temporary Total Benefits. Where the evidence indicates claimant has carpal tunnel syndrome as the result of employment, and her unrebutted testimony indicates she cannot perform her time-of-injury job due to the condition, she is entitled to temporary total disability benefits until she reaches MMI and evidence is developed regarding the impact of her condition on her employability.

         Benefits: Termination of Benefits: Return to Work. Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits under section 39-71-701(4), MCA (1993) because the modified job is no longer available to her.

         Maximum Medical Improvement. Where the evidence indicates claimant has carpal tunnel syndrome as the result of employment, and her unrebutted testimony indicates she cannot perform her time-of-injury job due to the condition, she is entitled to temporary total disability benefits until she reaches MMI and evidence is developed regarding the impact of her condition on her employability.

         Vocational - Return to Work Matters: Employability. Where the evidence indicates claimant has carpal tunnel syndrome as the result of employment, and her unrebutted testimony indicates she cannot perform her time-of-injury job due to the condition, she is entitled to temporary total disability benefits until she reaches MMI and evidence is developed regarding the impact of her condition on her employability.

         Vocational - Return to Work Matters: Modified Employment. Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits under section 39-71-701(4), MCA (1993) because the modified job is no longer available to her.

         This case came on for trial on June 17, 1996, in Helena, Montana. Petitioner, Shirley Ranes (claimant), was present with her attorney, Mr. James G. Hunt. Respondent, Lumbermens Mutual Casualty Co. (Lumbermens), was represented by Mr. Roger T. Witt.

         Claimant was the only witness. Exhibits 1 through 10 were stipulated into evidence.

         Issue: Claimant suffered an industrial injury of her back on July 9, 1994. She thereafter developed carpal tunnel syndrome (CTS), which has been accepted by Lumbermens as a compensable occupational disease. The principal issue in this case is whether claimant is entitled to reinstatement of her temporary total disability benefits retroactive to August 31, 1995. The Pre-Trial Order phrased the issue in terms of claimant's entitlement to temporary total disability benefits on account of her occupational disease, however, at trial the parties' attorneys agreed that the issue should relate to benefits which may be due her with respect to both the occupational disease and the industrial injury. Claimant also seeks attorney fees and a penalty. Another issue recited in the Pre-Trial Order --whether a proper rehabilitation plan has been developed -- appears premature and is not considered herein. Having considered the testimony of the claimant, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. On July 9, 1994, claimant suffered an industrial injury to her back while working as a bakery helper for Buttrey Foods in Helena, Montana. She was injured when she slipped and fell backwards onto her back.

         2. At the time of the accident Buttrey was insured by Lumbermens, which accepted liability for her injury.

         3. Following her fall claimant experienced back pain. On July 10, 1994, she sought treatment for her pain at the St. Peter's Hospital emergency room. The emergency room physician could find nothing objective but gave her a shot of Demerol for her pain, discharged her home for bed rest, and gave her prescriptions for Percocet and Flexeril. (Ex. 4 at 3.)

         4. Claimant was then treated by Dr. Max Iverson, an orthopedic surgeon. He first saw her on July 21, 1994. At that time claimant was complaining of pain in her right arm, neck, and low back. Dr. Iverson's impression was cervical and thoraco-lumbar myofascial strain injury. He kept her "off work presently," sent her to physical therapy, and prescribed various medications. (Ex. 2 at 1.)

         5. Dr. Iverson reexamined claimant on July 26, August 4, August 24, and September 7, 1994. His records reflect that she continued to complain of low-back pain. (Ex. 2 at 3-5.) She also reported numbness and tingling in her hands. (Id.) On September 7, 1994, Dr. Iverson recommended she see Dr. Allen M. Weinert, who specializes in physical and rehabilitation medicine. (Id. at 5.)

         6. Dr. Weinert examined claimant on September 30, 1994, and his report is found at Exhibit 1. At that time claimant was continuing to complain of continuous mid and low-back pain, as well as numbness and tingling in her arms. Dr. Weinert noted a deformity of the L5 vertebrae on x-ray films (Ex. 1 at 1) but indicated it was due to a remote traumatic event or a congenital limbus deformity and was, in any event, not in the region of claimant's discomfort. (Id. at 3.) His impression of her back condition was "[m]usculoligamentous mid and low back pain without evidence of neurologic compromise or significant structural abnormality as a result of the industrial accident of July 9, 1994." (Id.) Dr. Weinert was unable to determine the cause of claimant's sensory loss in her arms but recommended neurodiagnostic tests to rule out CTS should the symptoms persist. Finally, he recommended that she "return to work at the light duty physical demand level and progress back to her time-of-injury job." (Id.; italics added.)

         7. On October 24, 1994, Dr. Iverson rechecked claimant and noted that she still had "diffucse [sic] tenderness" in the low back but that she moved with relative ease. He approved her return to light-duty work effective October 25, 1994. (Ex. 2 at 5.)

         8. Claimant testified that as a bakery helper she baked bread, fried donuts, baked pies, and carried various bake goods, including bread pans with five loaves. The job is medium duty. (Ex. 6 at 5.) Although not specifically stated in their reports, it is nonetheless clear that as of October 24, 1994, neither Dr. Weinert nor Dr. Iverson had released claimant to return to work at her time-of-injury job.

         9. According to the uncontested facts set out in the Pre-Trial Order, claimant returned to work at Buttrey on approximately November 8, 1994.

         10. Lumbermens paid claimant temporary total disability benefits from July 21, through November 7, 1994. It terminated benefits effective November 8th on account of her return to work.

         11. On November 17, 1994, claimant returned to Dr. Iverson complaining of pain in her mid and low back with occasional radiation into her left buttock region. She informed him that she had been working in a modified-duty capacity but had to stop working that day because of pain. Dr. Iverson concluded that an MRI was appropriate to rule out any significant pathology and took "her off work for the next few days in order to try and calm her symptoms somewhat." (Ex. 2 at 7.) His work release stated, "Off work until seen on 11/23/94." (Id. at 6.)

         12. An MRI was done on November 21, 1994. The radiologist read the MRI as indicating "mild to moderate osteoarthritis of the facets, most specifically at the L3-4, L4-5, and L5-S1 levels." (Ex. 4 at 9; all caps in original.)

         13. Dr. Iverson reexamined claimant on November 23, 1994. Claimant was still complaining of persistent low-back pain. Commenting on the MRI, he noted the degenerative changes in the lumbar region but without evidence of any definite disk pathology. (Ex. 2 at 8.)

         14. Dr. Iverson's office note of November 23, 1994, reflects a difference in claimant's and the doctor's views of claimant's condition. Claimant insisted she could not return to work because Buttrey would not honor a 20-pound weight restriction and insisted that something more was wrong with her than a strain of her muscles and ligaments. Dr. Iverson felt she could return to work despite her protestations:

I do feel that she can do modified work. The patient is not willing to accept this recommendation and wishes to have another opinion which I feel is appropriate.

(Id.) He expressly "released [her] back to modified work effective 11-28-94" and thereafter referred her back to Dr. Weinert. (Id.)

         15. On November 28, 1994, claimant returned to work. She testified that she was unable to do the job and worked only a couple of days. The uncontested facts set forth in the Pre-Trial Order indicate that she worked from November 28, through December 9, 1994, and did not return to work thereafter.

         16. Lumbermens reinstated her temporary total benefits effective November 17, 1994, following claimant's unsuccessful first return to work. After she returned to work the second time, it once more discontinued temporary total disability benefits as of December 12, 1994. (Pre-Trial Order at 2.) However, according to representations of counsel at the time of trial, Lumbermens has continued to pay claimant biweekly permanent partial disability benefits. Her permanent partial rate is the same as her total rate.

         17. According to its counsel, Lumbermens had intended to call its Buttrey's manager to testify concerning the modified job which claimant performed upon her return to work and her ability to perform that job. According to Lumbermens' counsel, the insurer's case was that claimant "terminated herself." However, the manager left Buttrey's employ, is moving to Alaska, and was not available to testify. Claimant's testimony that she left work because the accommodations of the modified job were insufficient and she could not perform the modified position was therefore unrefuted. Moreover, a later vocational rehabilitation report, commissioned by Lumbermens, confirmed claimant's assertion. The vocational consultant preparing the report explored the possibility of a modified or alternative position at Buttrey and concluded, "No modified/alternative position could be identified at Buttrey's Food & Drug." (Ex. 6 at 7.)

         18. At the end of December 1994, Dr. Weinert became claimant's treating physician. He saw her on December 27, 1994, at which time she was complaining of continued back pain and numbness in her right hand. He scheduled a bone scan to rule out any structural abnormality of the spine and an EMG of her right arm. (Ex. 1 at 6.) With regard to her ability to work, he commented:

I discussed with Shirley that is doubtful that we will be able to eliminate her pain, but rather the goal of work hardening would be to rehabilitate her to a point where functionally she is able to do more and return her to work at a safe functional level.

(Id.) Thus, as of December 27, 1994, Dr. Weinert was contemplating work hardening, rather than any immediate return to work, as the next step in her care.

         19. An EMG on January 4, 1995, indicated "mild to moderate right median neuropathy at the wrist (carpal tunnel syndrome)." (Ex. 1 at 9.) Dr. Weinert wrote to Dr. Iverson that day to advise him that claimant "may require right carpal tunnel release." (Id. at 7.)

         20. On January 4, 1995, Dr. Weinert prescribed three weeks of limited physical therapy for ...


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