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Sears v. Travelers Insurance

Court of Workers Compensation of Montana

April 8, 1997

STEPHEN A. SEARS Petitioner
v.
TRAVELERS INSURANCE Respondent/Insurer for COULTER CORPORATION Employer.

          Submitted: February 20, 1997

          ORDER DENYING SUMMARY JUDGMENT

          Mike McCarter JUDGE.

         Summary: Insurer terminated injured worker's temporary total disability benefits with 14-days written notice to his attorney, but not to the Department of Labor and Industry. Claimant argued the termination of benefits was ineffective where (1) the physician who opined he could return to work relied on a job description that was not sufficiently detailed and technically accurate; and/or (2) 14-days notice had not been given to the DOL prior to termination of TTD benefits.

         Held: While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles. As for the argument based on lack of notice to the DOL, the governing statute is section 39-71-609, MCA (1995), which allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: Section 39-71-609, MCA (1995). Section 39-71-609, MCA (1995), allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224
Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-701, MCA (1993). While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles.
Benefits: Termination of Benefits: Coles. While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles.
Benefits: Termination of Benefits: Fourteen-Day Notice. Section 39-71-609, MCA (1995), allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.
Benefits: Termination of Benefits: Release to Return to Work. While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles.
Statutes and Statutory Interpretation: Applicable Law. Section 39-71-609, MCA (1995), allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.
Statutes and Statutory Interpretation: Procedural. Section 39-71-609, MCA (1995), allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.

         Introduction

         Petitioner, Stephen A. Sears (claimant), injured his back on October 27, 1994, in a work-related accident. His employer's insurer, Travelers Insurance (Travelers), accepted liability for his injury and paid temporary total disability benefits from November 7, 1994 through December 15, 1994, when claimant returned to work. (Letter of Jason G. Dykstra (March 12, 1997); Letter of James G. Hunt (March 14, 1997).)[1]Travelers reinitiated temporary total disability benefits on February 8, 1995, but terminated them once again on August 29, 1995, pursuant to a fourteen-day notice of termination. (Id.)

         Motion for Summary Judgment

         The claimant seeks reinstatement of temporary total disability retroactive to August 29, 1995, and continuing through June 3, 1996. (Petition for Hearing; Petitioner's Reply to Respondent's Response to Petitioner's Motion for Summary Judgement (Petitioner's Reply) at 4.) He moves for summary judgment on the grounds that the insurer (1) failed to comply with the Coles criteria when terminating benefits in August 1995, and (2) failed to notify the Department of Labor and Industry (Department) of the termination as required by section 39-71-609(1), MCA. The motion has been briefed and is ready for decision.

         Undisputed Facts

         Claimant's opening brief sets out a list of the facts claimant believes to be uncontested and which, he argues, entitle him to judgment. (Claimant's Brief in Support of Motion for Summary Judgment (Claimant's Brief) at 1-2.) Accompanying his brief is an affidavit of his attorney with numerous documents attached.

         In its answer brief, Travelers does not dispute the claimant's facts or the authenticity of the documents; it does not even address them. Under the Court's rules regarding summary judgment motions, "Any party opposing a motion filed under this rule shall include in their opposition a brief statement of genuine issues, setting forth the specific facts which the opposing party asserts establish a genuine issue of material fact precluding summary judgment in favor of the moving party." ARM 24.5.329(3). The rule requires the opposing party to identify any of the facts recited by the moving party which the opposing party disputes. Since Travelers does not deny the facts and documents set out in claimant's brief, and since its own statement of facts does not contradict any of claimant's facts, the claimant's statement of facts is deemed uncontroverted.

         Travelers sets out additional facts it believes are uncontroverted and attaches several supporting documents. (Respondent's Response to Petitioner's Motion for Summary Judgment at 2-4 (Respondent's Brief).) Addressing the additional facts, claimant says, "For the purposes of this motion, Sears [claimant] will not dispute any of the facts recited by Respondent and they [sic] court may assume each is true." (Petitioner's Reply at 1.) Travelers' facts should therefore be deemed uncontroverted, as well.

         Through correspondence filed with the Court, the parties have also agreed to the specific dates on which compensation was paid to claimant.[2]

         Despite the numerous facts conceded by the parties, I nonetheless concluded that the factual underpinnings of the motion should be clarified. Not all of the facts set out in the parties' briefs are relevant to the present motion and not all the relevant facts are set out in the form required by Court rules. To avoid any doubt concerning the facts, I prepared a revised statement of undisputed facts and sent it to counsel asking that they confirm the truth of the facts recited therein or advise me of which facts are in dispute.

         As a result of the responses received from counsel, the paragraph concerning claimant's termination of employment has been revised. Further, at respondent's request, a paragraph concerning Dr. Maxwell's discharge of claimant and the insurance adjuster's reliance on that discharge has been added. Deeming the fact irrelevant, ...


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