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Carlson-Owens v. Liberty Northwest Insurance Co.

Court of Workers Compensation of Montana

April 28, 1997

RUTH CARLSON-OWENS, Petitioner,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION, Respondent/Insurer for DISCOVERY CARE CENTER and MARCUS DALY MEMORIAL HOSPITAL, Employers.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: 47-year old certified nurses aide/hospital worker injured her right arm and shoulder with one employer, recovered, was placed at MMI, and returned to work. Her employment was later terminated for unrelated reasons. At a new employer, insured by the same insurer, she then injured her right shoulder and neck. She sought PPD and vocational rehabilitation benefits relating to the first injury, and vocational and wage loss benefits relating to the second injury.

         Held: Claimant not entitled to additional benefits. Where she had no impairment following the first injury, she was not entitled to PPD benefits under sections 39-71-116 and -703, MCA (1995), which require a permanent impairment established by objective medical findings. Where she had no wage loss following the second injury, she is not entitled to PPD benefits beyond an impairment award. Section 39-71-703, MCA (1995) requires wage loss for PPD benefits other than the impairment award, which the insurer had paid. Similarly, where claimant had no wage loss, she is not entitled to vocational rehabilitation benefits where section 39-71-1006, MCA (1995) makes wage loss a prerequisite to such benefits.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1995). Claimant without impairment established by objective medical evidence is not entitled to PPD benefits under 1995 statute.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1995). Claimant without wage loss is not entitled to PPD benefits beyond impairment award under 1995 statute.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-1006, MCA (1995). Claimant without wage loss is not entitled to rehabilitation benefits under 1995 statute.
Benefits: Permanent Partial Benefits: Generally. Under section 39-71-116 and -703, MCA (1995), claimant without impairment established by objective medical evidence is not entitled to PPD benefits.
Benefits: Permanent Partial Benefits: Generally. Under section 39-71-703, MCA (1995), claimant without wage loss is not entitled to PPD benefits beyond impairment award.
Benefits: Rehabilitation Benefits. Under section 39-71-1006, MCA (1995), claimant without wage loss is not entitled to rehabilitation benefits.

         The trial in this matter was held in Missoula, Montana, on April 21, 1997. Petitioner, Ruth Carlson-Owens (claimant), was present and represented by Ms. Sydney E. McKenna. Respondent, Liberty Northwest Insurance Corporation (Liberty), was represented by Mr. Larry W. Jones.

         Exhibits: Exhibits 1 through 4 and 7 through 8 were admitted without objection. Exhibit 5 was withdrawn. Exhibit 6, which is a job description, was admitted with the proviso that it would be considered only insofar as the testimony established that it was an accurate depiction of the actual job. Exhibits 9 through 11 were offered by Liberty but refused as untimely.

         Witnesses and Depositions: Claimant, Sandy Scholl, Ruby Finch, Debbie Morris, Barbara Wiley, and Jerry Davis were sworn and testified. In addition, the parties submitted the deposition of claimant, Dr. James H. Chandler, and Jerry Davis for the Court's consideration. No transcript of the trial has been prepared.

         Pretrial Order: At trial the parties stipulated that the pretrial order be amended to reflect claimant's wages and permanent partial disability rates. The pretrial order was deemed amended by the stipulations, which are incorporated in the following findings of fact.

         Issues Presented: The following issues, as phrased by the parties, are presented for determination:

1. Whether Petitioner is entitled to PPD benefits, vocational rehabilitation benefits and other benefits arising out of her injury at Discovery Care Center on August 1, 1995.
2. Whether Petitioner is entitled to vocational rehabilitation benefits and wage loss benefits from the injury sustained on March 20, 1996 at Marcus Daly Memorial Hospital.
3. Whether Petitioner is entitled to an award of reasonable fees and costs pursuant to §39-71-611 and 612, MCA.
4. Whether Liberty overpaid Claimant PPD benefits based on her Marcus Daly injury.

(Pretrial Order at 2.)

         Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant is 47 years of age and lives in Hamilton, Montana.

         2.Claimant completed the 11th grade but did not graduate from high school. However, she later obtained a GED. Her only additional education was cooking classes at a vocational school and certified nurse's aid training.

         Discovery Care Center Injury

         3. Claimant worked at Discovery Care Center (Discovery) as a certified nurse's aid for approximately five years.

         4. On August 1, 1995, claimant injured her right arm and shoulder while she was assisting a patient from her wheelchair to a toilet.

         5. At the time of claimant's injury, Discovery was insured by Liberty. Claimant submitted a claim for compensation. Liberty accepted liability for her claim and thereafter paid medical and temporary total disability benefits.

         6. Claimant's wage at the time of her Discovery injury was $6.60 an hour. She was working full time and her permanent partial disability rate for this injury is $181.

         7. Claimant was initially treated by A.D. Wagner (Wagner), a nurse practitioner at the Bitterroot Clinic in Hamilton. Wagner first saw claimant on August 5, 1995, at which time claimant's primary complaint was pain in her right elbow and lower right arm. (Ex. 4 at 4.) Wagner prescribed a tennis elbow band and Advil. (Id.) Wagner continued to treat claimant through October 1995, during which time she prescribed physical therapy and additional medication. (Id. at 1-3.)

         8. Claimant continued to have pain in her right elbow. In late October 1995, she was referred to Dr. James H. Chandler, an orthopedic surgeon practicing in Hamilton.

         9. Dr. Chandler examined claimant on November 2, 1995. By that time claimant's primary complaint was pain in her right shoulder. Dr. Chandler diagnosed a "right shoulder rotator cuff injury" and injected the shoulder with cortisone solution. (Ex. 4 at 23.) On November 10, 1995, he also prescribed physical therapy. (Id. at 22.)

         10. Dr. Chandler examined claimant again on November 13, 1995. Her shoulder had significantly improved. Dr. Chandler noted, "She is not [sic] longer experiencing any significant shoulder complaints in her previous subacromial and deltoid insertional area" and that claimant "somewhat begrudgingly admits that her shoulder pain has been improved." (Id. at 20.) He noted that her most significant complaint involved her elbow (lateral epicondylar process). He further noted that claimant had returned to modified light-duty work on November 4, 1995. He recommended continued light-duty work for an additional three weeks, and prescribed an additional two weeks of physical therapy. (Id.)

         11. In a follow-up examination on November 27, 1995, Dr. Chandler noted that claimant was continuing to make progress. He recommended she continue working on light ...


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