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Sears v. Travelers Insurance

Court of Workers Compensation of Montana

May 13, 1998

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

          Submitted: April 27, 1998

          ORDER AND FINAL JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: Following the WCC's order denying summary judgment, which held that Coles criteria were satisfied in connection with respondent's termination of TTD benefits, and did not apply to claimant's case in any event, both parties proffered evidence they would produce at trial and asked the Court whether these raised issues requiring trial.

         Held: None of the evidence offered by either party has any bearing on the Court's decision that respondent's failure to create a technically accurate job description does not require extension of TTD benefits under the circumstances of this case. Trial is not necessary and final judgment entered.

         Topics:

Summary Judgment: Motion for Summary Judgment. Where motion for summary judgment may have resolved all issues in the case, parties proffered evidence they would introduce at trial and posed the question whether this evidence would be material to any issue. The WCC ruled that such evidence would not impact its determination on summary judgment, which appeared dispositive of the case. Final judgment entered.

         Introduction

         ¶1 This Court has previously entered orders denying summary judgment and denying reconsideration of the order denying summary judgment. Those orders determined that the Coles criteria were satisfied in connection with respondent's termination of temporary total disability benefits and that, in any event, the Coles criteria do not apply to claims arising on and after July 1, 1995.

         ¶2 The question now presented to the Court is what issues remain to be determined. Following discussions with counsel for the parties, the parties agreed to submit an offer of proof with respect to the facts they would produce at any trial. On its part, the Court agreed to rule whether the proffered facts are material to the present controversy. After reviewing the proffers, I find that they are not material and that final judgment must be entered for respondent.

         Discussion

         ¶3 The evidence the petitioner would offer at trial is in connection with his allegation that the insurer failed to comply with the Coles criteria because the physician who released him to his time-of-injury job did not have a technically accurate job description for the job. Petitioner previously offered, and the Court accepted as true, a rehabilitation expert's affidavit verifying that the job description provided to the releasing physician was inaccurate. His additional evidence at trial would be that, contrary to the job description actually furnished, the claimant was required to lift "much more than 50 pounds on the job."

         ¶4 The additional evidence would not affect the outcome in this case. The Court has already found that an inaccurate job description did not void the insurer's termination of benefits. The additional evidence would only bolster petitioner's contention that the job description was in fact inaccurate, but no matter how much he bolsters that contention, the Court has already determined that Coles does not require an accurate job description (at least where the job description is not deliberately misleading or phony) and that Coles no longer applies in any event.

         ¶5 Petitioner might still prevail in this case if he were to offer evidence that at the time of the termination of his benefits he had not reached maximum medical healing or, if he had reached maximum medical healing, that he was unable to return to any employment. However, he has not pursued either ground and his proffer would be insufficient to establish either of those two propositions.

         ¶6 On its part, the respondent would attempt to prove that any error with regard to the release by Dr. McLean, which release was a part of the Coles notice given petitioner, is harmless since petitioner's treating physician, Dr. Maxwell, had previously released claimant to work without restrictions and with a zero percent impairment rating. Respondent would further attempt to prove that its claims adjuster was aware of Dr. Maxwell's release, relied upon it in deciding to terminate benefits, and requested Dr. McLean's evaluation only to "confirm the finding." Finally, it would offer evidence which ...


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