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Hoff v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

November 1, 2000

ANN MARIE HOFF, Petitioner,
v.
UNINSURED EMPLOYERS' FUND, Respondent, and LAUBACH & LAUBACH LLC, d/b/a YANKEE JIM TRADING POST, Employer.

          Submitted: September 25, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER, JUDGE.

         Summary of Case: Claimant suffered two back injuries while working as a store clerk for Yankee Jim's, which was uninsured. She established by a preponderance of evidence, but not by clear and convincing evidence, that she notified her employer of the first injury and provided it with a written statement, and that she was assured it would be submitted to workers' compensation. Her formal written claim was submitted more than one year after the accident and denied by UEF as untimely. A timely claim was submitted for the second injury and accepted by UEF, which initially paid TTD benefits. Her treating physician found her at MMI in October 1999. UEF cut off TTD benefits and paid out a 5% impairment award. In this proceeding claimant requests a waiver of the limitations period with respect to the first injury and requests reinstatement of TTD benefits with respect to the second, arguing that she has not in fact reached MMI.

         Held: (1) The waiver is denied since estoppel must be proved by clear and convincing evidence and her proof did not reach that level. (2) As to MMI, she has not materially improved since her treating physician rendered his MMI opinion and that opinion is persuasive.

         Topics:

Statutes: 39-71-601(2) (1997). While the one-year limitations period for filing a written claim may be waived for estoppel grounds, estoppel must be proved by clear and convincing evidence.
Statutes: 39-71-601(3) (1999). WCC has original jurisdiction over pre-1999 requests for waiver of the one-year limitations period for filing a written claim where neither party elects to have the matter heard by the Department.
WCC Rules: 24.5.317(2). Attorney fees denied claimant's attorney for preparation of affidavits authenticating medical records where claimant supplied the records and failed to verify her responses to discovery despite being requested to do so. UEF was not unreasonable in seeking some type of verification that the records were authentic.
Administrative Procedure: Notice. Procedural due process requires the Department of Labor and Industry to provide the employer, insurer, and/or UEF, as the case may be, with written notice of its determination waiving the one-year limitations period so that those affected parties have an opportunity to request a hearing. Moreover, for the Department's determination to garner any respect, notice should be given to all interested parties prior to any determination.
Attorney Fees: Sanctions. Attorney fees denied claimant's attorney for preparation of affidavits authenticating medical records where claimant supplied the records and failed to verify her responses to discovery despite being requested to do so. UEF was not unreasonable in seeking some type of verification that the records were authentic.
Constitutional Law: Due Process: Procedural Due Process. Procedural due process requires the Department to provide the employer, insurer, and/or UEF, as the case may be, with written notice of its determination waiving the one-year limitations period so that those affected parties have an opportunity to request a hearing.
Jurisdiction: Original. WCC has original jurisdiction over pre-1999 requests for waiver of the one-year limitations period for filing a written claim where neither party elects to have the matter heard by the Department.
Limitations Periods: Claim Filing: Waiver of Time/Estoppel. Estoppel must be proved by clear and convincing evidence.
Maximum Medical Improvement. Treating physician's MMI opinion persuasive where subsequent treatment by other physicians does not materially improve the claimant's condition.
Proof: Conflicting Evidence: Medical. Treating physician's MMI opinion persuasive where subsequent treatment by other physicians does not materially improve the claimant's condition.

         ¶1 Pending before the Court are two separately captioned matters. The first matter - WCC No. 9912-8393 - involves a request by petitioner, Ann Marie Hoff (claimant), for a waiver of the one-year limitations period for filing a claim. The claim in question was submitted on August 24, 1999, for an alleged back injury occurring on June 8, 1998. The second matter - WCC No. 2000-0082 - is a request for reinstatement of temporary total disability (TTD) benefits for an August 5, 1999 back injury. The two matters have been consolidated for trial and decision.

         ¶2 A trial was held on September 11, 2000, in Great Falls, Montana. Petitioner, Ann Marie Hoff (claimant), was present and represented by Mr. Lucas J. Foust and Mr. Chris J. Ragar. Respondent, Uninsured Employers' Fund (UEF), was represented by Mr. Daniel B. McGregor. Respondent/Employer, Laubach & Laubach LLC (Yankee Jim's), was represented by Ms. Kimberly D. Evans.

         ¶3 Exhibits: 1 through 33 and 43 through 51 were admitted without objection. Exhibits 36 through 42 were admitted over the objection of UEF. There were no Exhibits 34 or 35.

         ¶4 Witnesses and Depositions: The claimant, her husband (Greg Hoff), Sherry Soennichsen, Art Bent, and Bernadette Rice all testified. In addition, the depositions of Ann Marie Hoff, Dr. James C. Simmons, and Dr. John A. Vallin were submitted for the Court's consideration.

         ¶5 Issues Presented: The final pretrial order sets forth the issues as follows:

• Was the Order Waiving Claim Filing Time issued by the Claims Assistance Bureau constitutionally and procedurally defective for failure to provide the UEF and the Employer notice and opportunity to be heard prior to the issuance of that Order?
• Is the Petitioner entitled to workers' compensation benefits in relation to her June 8, 1998, back injury?
• Is Petitioner entitled to continuing temporary total disability benefits in relation to her August 5, 1999, back injury?
• Is Petitioner entitled to an award of attorneys fees and costs in relation to her claim for benefits for her June 8, 1998, and August 5, 1999, injuries?

(FINAL PRETRIAL ORDER at 3-4.)

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

         FINDINGS OF FACT

         ¶7 Claimant went to work for Yankee Jim's in 1995 as a clerk. Yankee Jim's is a retail store in Gardiner, Montana, which is owned and operated by Laubach &Laubach LLC. Claimant's job duties while working for the store included waiting on customers, putting merchandise away and cleaning. She worked eight hours a day, initially five days a week and then four days a week.

         ¶8 In 1998 claimant took on concurrent employment at the Hillcrest Motel in Gardiner, Montana. At that time, the motel owner, Art Bent, hired claimant and her husband to operate the motel during part of the week. The Hoffs were responsible for the motel for two full days during the week and also for evenings on three other days. The motel owners were responsible for managing and operating the motel during the remainder of the week. The Hoffs moved into a unit of the motel which also houses the motel office. Until her back injuries, the claimant, rather than her husband, performed most of the motel work, including cleaning rooms, laundering sheets and towels, answering the telephone, and checking guests in and out.

         June 8, 1998 Back Injury

         ¶9 On June 8, 1998, while at Yankee Jim's, claimant twisted her body stepping off a counter where she had been standing to hang pictures. She immediately felt pain in her back. She went home, took Advil, and had a hot bath.

         ¶10 At trial, claimant testified that on the day after the accident she told Wade Laubach (Laubach), one of the owners of Yankee Jim's, about the accident and told him it should be reported to Workers' Compensation. According to claimant, he responded by telling her to write out a statement regarding the accident, have Shelly Thomas, a co-employee who witnessed the accident, sign the statement, and put the statement on his desk; thus, he would report it. Claimant testified that she provided him with the written statement he requested.

         ¶11 Laubach provided the UEF with a statement disclaiming any knowledge of the injury until August 16, 1999. He did not testify at trial. His written statement is not subject to cross-examination and I disregard it in determining whether claimant's testimony is true.

         ¶12 Claimant's testimony is sufficient to satisfy me by a preponderance of evidence that she provided a written statement to Laubauch, however, it is not clear and convincing. Wthout regard to Laubach's written statement, I find it less than clear and convincing for two reasons; both affect my assessment of claimant's credibility on this point.

• First, claimant called her close friend, Sherry Soennichsen (Soennichsen), to testify on her behalf about the written statement claimant said she provided Laubach. Soennichsen identified Exhibit 1 at page 2 as that statement. Her testimony was not credible. While dated June 8, 1998, the statement found at Exhibit 1 at page 2 was plainly prepared later. That exhibit was received by the Department of Labor and Industry (Department) on August 31, 1999, about the time claimant filed a written claim for compensation. Moreover, in the text of the statement, claimant says that she prepared the statement and gave it to Laubach, thus indicating that the statement she gave him was a different one, not the exhibit. The exhibit reads:
June 8, 1998
I went home that night and crawled into the bath tub with hot water. It helped some but I still had some bad pain.
I went to work the next day and that is when I told Wade that he needed to report this. He asked me to write a statement and have Shelly sign it and give him a copy of it. I did.
Wade never told me to go get checked or that I could not work till [sic] I did. I just went back to work as usuall [sic].

(Ex. 1 at 2, emphasis added.)

• Second, claimant testified that she never sought medical care for her June 8th injury because she did not have medical insurance and could not pay for the care. But she also testified that she told Laubach that "we need to report this to Workers' Comp." Why would she tell him of a need to report it to Workers' Compensation unless she was aware that benefits would be available to her for her injury?

         ¶13 Claimant's ultimate claim for compensation respecting the June 8th injury was prepared and submitted August 24, 1999, more than one year after the accident.

         ¶14 At the time of the June 8th accident, Jim Yankee's was uninsured. The claim was therefore forwarded to UEF, which denied liability on the grounds that there were no objective medical findings to substantiate the injury and the claim was barred by section 39-71-601, MCA, for claimant's failure to submit it within one year. (Uncontested Fact No. 3.)

         ¶15 On October 13, 1999, claimant requested an extension of the time for filing her claim for the June 8, 1998 injury. (Ex. 8.) She submitted her request to the Department pursuant to sections 39-71-601 and 601(2), MCA (1997).

         ¶16 The Workers' Compensation Claims Assistance Bureau (Bureau) of the Department, which is responsible for processing waiver requests, received claimant's request on October 19, 1999. On that same day it granted a waiver extending the time for filing her claim. order waiving claim filing time. (Exs. 8 and 9.) The waiver was granted without prior notice to either the employer or the UEF.

         ¶17 On November 16, 1999, after learning of the waiver, the UEF requested a hearing before the Department's Hearings Unit. (Ex. 11.) Two days later, on November 18, 1999, the employer also notified the Hearings Unit that it contested the order waiving claim filing time. (Ex. 12.)

         ¶18 Meanwhile, the 1999 Montana Legislature changed the jurisdictional provisions to provide that the Workers' Compensation Court, rather than the Department, shall hold the hearing in contested waiver cases. 1999 Mont. Laws, ch. 442 § 16. The change was made with the proviso that either party could request a pending matter to remain in and be heard by the Department, Id., § 31. However, in this case, neither party made such a request and the matter was transferred to this Court for hearing. [department order regarding jurisdiction (December 28, 1999.)

         ¶19 The only evidence that claimant presented to justify a waiver of the one-year limitations period was the evidence concerning her communication with Laubach and submission of a written statement to him. She did not present any evidence that ...


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