Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bouldin v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

December 12, 1997

THEDA BEA BOULDIN Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for BIG SKY CARVERS Employer.

          Submitted: September 10, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: Claimant has been diagnosed with fibromyalgia and the insurer accepted her condition as an occupational disease related to her employment painting decoy ducks. In a prior decision, the WCC held the insurer could not withdraw that acceptance to challenge claimant's condition. Now at issue is claimant's request for benefits under section 39-72-405, MCA (1993), which allows an award of up to $10, 000 when an occupationally diseased claimant suffers a wage loss and meets certain statutory conditions.

         Held: Claimant easily meets three of four statutory criteria: she suffers from an occupational disease, she is not totally disabled, and she has a wage loss where she was forced to work part-time only as a result of her condition, then terminated employment following a dispute with her employer over hours of work. The final criteria involves interpretation of the statute as to whether a determination by a medical panel is necessary regarding whether it was medically advisable for claimant to transfer from her job as a result of her condition. Though the statute is not a model of clarity, the Court interprets section 39-72-405, MCA (1993) to require a medical panel determination only when the wage loss results from a cessation of employment by the employee (resignation), not from discharge or transfer. As for the amount of the award, the full $10, 000 is awarded where claimant's wage loss is $2038.40 annually if her current new-job wages are compared to her time-of-injury wages, and $7, 600 annually if the part-time wages she earned post-injury with the time-of-injury employer are compared to full time wages she would have earned but for the disease.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-405, MCA (1993). Claimant, whose fibromyalgia condition was accepted by the insurer as an occupational disease, seeks compensation under section 39-72-405, MCA (1993) for wage loss allegedly resulting from her inability to work full time in her time-of-injury job. Claimant easily meets three of four statutory criteria: she suffers from an occupational disease, she is not totally disabled, and she has a wage loss. The final criteria involves interpretation of the statute as to whether a determination by a medical panel is necessary regarding whether it was medically advisable for claimant to transfer from her job as a result of her condition. Though the statute is not a model of clarity, the Court interprets section 39-72-405, MCA (1993) to require a medical panel determination only when the wage loss results from a cessation of employment by the employee (resignation), not from discharge or transfer. As for the amount of the award, the full $10, 000 is awarded where claimant's wage loss is $2038.40 annually if her current new-job wages are compared to her time-of-injury wages, and $7, 600 annually if the part-time wages she earned post-injury with the time-of-injury employer are compared to full time wages she would have earned but for the disease.
Occupational Disease: Indemnity (39-72-405) Awards. Claimant, whose fibromyalgia condition was accepted by the insurer as an occupational disease, seeks compensation under section 39-72-405, MCA (1993) for wage loss allegedly resulting from her inability to work full time in her time-of-injury job. Claimant easily meets three of four statutory criteria: she suffers from an occupational disease, she is not totally disabled, and she has a wage loss. The final criteria involves interpretation of the statute as to whether a determination by a medical panel is necessary regarding whether it was medically advisable for claimant to transfer from her job as a result of her condition. Though the statute is not a model of clarity, the Court interprets section 39-72-405, MCA (1993) to require a medical panel determination only when the wage loss results from a cessation of employment by the employee (resignation), not from discharge or transfer. As for the amount of the award, the full $10, 000 is awarded where claimant's wage loss is $2038.40 annually if her current new-job wages are compared to her time-of-injury wages, and $7, 600 annually if the part-time wages she earned post-injury with the time-of-injury employer are compared to full time wages she would have earned but for the disease.

         The matter before the Court is the second of two petitions filed by petitioner, Theda Bea Bouldin (Theda).

         Theda suffers from fibromyalgia. In her first petition to this Court, she sought a ruling that she is entitled to occupational disease benefits on account of her condition. Liberty Northwest Insurance Corporation (Liberty) had accepted her fibromyalgia claim, but thereafter changed its mind and denied liability. In an October 8, 1996, Partial Summary Judgment and Decision, I determined that lacking proof of fraud, mutual mistake, subsequent injury, or some other sufficient legal ground, Liberty's acceptance of Theda's claim for occupational disease benefits on account of her fibromyalgia precluded it from thereafter contesting its liability for that condition. That determination was certified as final and was not appealed.

         On May 21, 1997, Theda filed a second petition. That petition was also captioned "Petition for Hearing," but the Court gave it the same docket number. The second petition and subsequent documents are found in Volume II of the Court file.

         In her second petition, Theda requests benefits under section 39-72-405, MCA (1993).

         Liberty resisted the second petition, and the matter went to trial on August 25, 1997, in Helena, Montana. Theda represented herself and was sworn and testified. Liberty was represented by Mr. Larry W. Jones (Larry). Exhibits 3, 5, 6 and 8 through 12 were admitted without objection. The Court reserved ruling on the offers of Exhibits 1, 2, 4 and 7.

         In addition to Theda's testimony and exhibits, the parties agreed that the Court may consider Theda's prior depositions and depositions of Drs. James R. Burton, Robert E. Chambers, Duane Mohr, Herbert E. Prussack, Leonard R. Ramsey, and George Saari; James Deming, Ed.D.; Ginny Dieruf; Gregory P. Hoell, D.C.; and Joseph K. McElhinny, Psy.D.

         The Court provided the parties an opportunity for post-trial briefs. The final brief was submitted on September 10, 1997, at which time the case was deemed submitted.

         Having considered the testimony at trial, the depositions, the exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Initially, as a matter of fact, the Court complements both Theda and Larry on their cooperation and the manner in which they presented this case to the Court. Larry never attempted to take advantage of the fact that Theda is unrepresented. He has been helpful to her and the Court throughout this proceeding. He has set a good example for other lawyers who may become involved in pro sé matters. On her part, Theda has represented herself in a reasoned and rationale manner. She has complied with the Court's procedural rules. In all proceedings before the Court, she has been poised and articulate.

         2. Claimant has suffered from fibromyalgia since at least early 1995. In early 1995 she submitted a claim for compensation which Liberty accepted as an occupational disease.

         3. In 1995 claimant was working for Big Sky Carvers. Her job entailed painting animal decoys, mostly ducks. The decoys varied in size from life-size ducks to miniatures. She was provided finished, painted decoys as guides to her painting.

         4. As a result of her condition, Theda was off work from March until late May 1995. 5.Dr. Leonard Ramsey, who is a family practitioner, is claimant's treating physician.

         6. At the end of May 1995, Theda returned to work with a release from Dr. Ramsey. In releasing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.