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Derlatka v. Pacific Employers' Insurance Co.

Court of Workers Compensation of Montana

July 20, 1998

ROBERT DERLATKA Petitioner
v.
PACIFIC EMPLOYERS' INSURANCE COMPANY Respondent/Insurer for MISSOULA WHITE PINE SASH Employer.,

          Submitted: June 16, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge.

         Summary: Mill worker with elbow problems (medial epicondylitis)) sought additional temporary total disability benefits for period after mill closed and before surgery was scheduled, after surgery was scheduled and before operation, and between surgery and date of maximum medical healing.

         Held: Claimant was not entitled to additional TTD for period between mill closure and scheduling of surgery. Although he had elbow problems, he was working prior to the mill closure. No doctor took him off work. While he may have become disabled at some point prior to the scheduling of surgery, he has not carried his burden of proving a date of disability to the Court. He is entitled, however, to TTD benefits from the date surgery was scheduled, when it was plain he had become totally disabled, and from the date of surgery to MMI, less periods he actually performed work for his daughter's cleaning company. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. As a matter of fact, the Court found claimant temporary totally disabled between the date of surgery and MMI.

         Topics:

Benefits: Temporary Total Benefits. Mill worker who received surgery for elbow problems (medial epicondylitis) after mill closed was not entitled to additional TTD for period between mill closure and scheduling of surgery. Although he had elbow problems, claimant was working prior to the mill closure. No doctor took him off work. While he may have become disabled at some point prior to the scheduling of surgery, he has not carried his burden of proving a date of disability to the Court. He is entitled, however, to TTD benefits from the date surgery was scheduled, when it was plain he had become totally disabled, to the date of surgery, and from the date of surgery to MMI, less periods he actually performed work for his daughter's cleaning company. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. As a matter of fact, the Court found claimant temporary totally disabled between the date of surgery and MMI.
Disability: Temporary Total. Mill worker who received surgery for elbow problems (medial epicondylitis) after mill closed was not entitled to additional TTD for period between mill closure and scheduling of surgery. Although he had elbow problems, claimant was working prior to the mill closure. No doctor took him off work. While he may have become disabled at some point prior to the scheduling of surgery, he has not carried his burden of proving a date of disability to the Court. He is entitled, however, to TTD benefits from the date surgery was scheduled, when it was plain he had become totally disabled, to the date of surgery, and from the date of surgery to MMI, less periods he actually performed work for his daughter's cleaning company. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. As a matter of fact, the Court found claimant temporary totally disabled between the date of surgery and MMI.
Vocational - Return to Work Matters: Available for Work. Mill worker who received surgery for elbow problems (medial epicondylitis) following mill closure was entitled to temporary total disability following surgery and before MMI even though he performed some work for his daughter's cleaning service prior to MMI. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. He was not entitled to TTD benefits, however, on the dates he actually worked for his daughter.
Vocational - Return to Work Matters: Employability. Mill worker who received surgery for elbow problems (medial epicondylitis) following mill closure was entitled to temporary total disability following surgery and before MMI even though he performed some work for his daughter's cleaning service prior to MMI. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. He was not entitled to TTD benefits, however, on the dates he actually worked for his daughter.

         ¶1 The trial in this matter was held on June 16, 1998, in Missoula, Montana. Petitioner, Robert Derlatka (claimant), was present and represented by Mr. Rex Palmer. Respondent, Pacific Employers Insurance Company (Pacific), was represented by Mr. Leo S. Ward .

         ¶2 Exhibits: Exhibits 1 through 8, 10 and 12 were admitted without objection. Exhibit 9, with the exception of pages 4, 16 and 17, were admitted without objection. Pages 4, 16, and 17 were admitted over the objection of the respondent. Exhibit 11 was withdrawn.

         ¶3 Witnesses and Depositions: Claimant was sworn and testified. The parties agree that the Court may consider the depositions of the claimant and Dr. Stephen Powell.

         ¶4 Issues: Following elbow surgery on July 24, 1997, claimant was paid temporary total disability benefits from August 1, 1997 to October 14, 1997. He now seeks additional temporary total disability benefits for the periods of November 12, 1996 to July 24, 1997, and October 14, 1997 to December 15, 1997, except with respect to those days on which he was actually employed. Claimant also seeks a penalty and attorney fees.

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Claimant is 46 years old. (Ex. 2). He is a high school graduate and attended one year of college. (Derlatka Dep. at 5.)

         ¶7 Claimant has worked as a factory worker, office worker, shipping clerk, salesclerk, and mill worker. (Id. at 5-6.)

         ¶8 In September of 1976, claimant went to work for White Pine Sash (White Pine), a mill which makes wood products. He worked at White Pine until the mill shut down on November 12, 1996.

         ¶9 At White Pine, claimant worked as a tally person, headloader, and double-end machine operator. (Derlatka Dep. at 8 through 12; Trial Test.)

         ¶10 Prior to August 1995, and extending back to at least June 1995, claimant worked as a headloader. That job was heavy work and involved repetitive use of the hands and arms. It required claimant to gather raw material for machining. He used a forklift to pick up pallets of wood. When a load was less than 500 pieces, he gathered additional pieces by the armload -- approximately 25 pieces -- and placed them on the forklift. Arm loads of wood weighed up to approximately 30 pounds. In addition to gathering the wood, claimant at times had to turn the wood over when placing it for machining. The job also required the claimant to lift other items, including a propane tank, which weighed as much as 65 pounds.

         ¶11 In August 1995, claimant bid into and transferred to a double-end machine operator position. The work was significantly easier than the job of headloader. It required claimant to turn wheels which ranged in diameter from 2 to 10 inches. Claimant kept the wheels well oiled to make his work easier.

         ¶12 Claimant continued to work as a double-end machine operator until November 12, 1996, when the mill closed.

         Diagnosis and Initial Treatment of Elbow Condition

         ¶13 During 1995 the claimant began experiencing pain in both of his elbows. By September 28, 1995, his pain was sufficiently severe to cause him to seek medical treatment from Dr. Michael A. Sousa, who is an orthopedic surgeon. Dr. Sousa's September 28 office note reflects that claimant was complaining of "medial elbow pain for some time in association with grabbing bundles of wood." (Ex. 4 at 1.) The pain was in both elbows, although worse in the left elbow. (Id.) Dr. Sousa diagnosed "medial epicondylitis"[1] and prescribed elbow bands, Naproxen, [2] and stretching and strengthening exercises. (Id.)

         ¶14 Dr. Sousa's September 28, 1995 office note indicates that claimant did not relate his elbow pain to any specific incident at work, although he did relate his pain to his work activities.

         ¶15 Claimant returned to Dr. Sousa on November 21, 1995. Dr. Sousa's office note for that date reflects that claimant's condition had improved. (Id.)

         ¶16 Claimant continued under Dr. Sousa's care. He next saw the doctor on January 6, 1996, at which time Dr. Sousa noted that the claimant was working in a modified position:

He has modified his work schedule somewhat including:
1. Using more oil in the machinery.
2. Propping the heavy doors open that he had to yank on.
3. Performing more regular maintenance on various wheels and valves that he has to turn to prevent overuse of the forearm musculature.

(Id. at 2.) Dr. Sousa recommended continued conservative care, including the continued wearing of elbow braces and the continued use of nonsteroidal anti-inflammatory medications. (Id.)

         ¶17 On April 3, 1996, claimant again saw Dr. Sousa. Dr. Sousa's office ...


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