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Lalum v. Safeco Insurance Co.

Court of Workers Compensation of Montana

March 19, 2001

ALEXA HUDSON LALUM, Petitioner,
v.
SAFECO INSURANCE COMPANY, Respondent/Insurer for BI-LO FOODS, Employer.

          Submitted: January 17, 2001

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary:

         Claimant suffered a back injury in 1995 which made her underlying scoliosis symptomatic. At the time, she was working two jobs, one as a grocery store cashier, and the other as a light-duty home health aide. She was unable to continue working as a cashier but went full time as a home health aide at higher wages than her cashier job. Thereafter, she worked at another light-duty home health aide job. In 1997 she began college and shortly thereafter reached MMI. A 5% impairment rating was given but the physician doing the rating allocated 3% of the rating to non-occupational, preexisting factors (the underlying scoliosis). A job analysis for a heavy-labor home health aide was disapproved but other light-duty jobs were approved. Every job claimant has held since her injury has paid more than her time-of-injury employment. The insurer paid only 2% for impairment and has denied permanent partial and rehabilitation benefits.

         Held:

         (1) Claimant is entitled to the full 5% impairment rating since it is a single impairment rating for a single, indivisible condition. The "take the employee as you find her rule" applies. (2) Claimant failed to prove she suffered a wage loss. The light-duty home health aide positions she held immediately following her injury were never disapproved; she quit those jobs for reasons unrelated to her medical condition; and she has failed to show that at the time she reached MMI, the wages for those positions had decreased to less than her time-of-injury jobs. (3) The claimant is entitled to attorney fees and a penalty with respect to the additional 3% impairment award since the rules regarding impairment awards are clear: there is no apportionment under the Workers' Compensation Act.

         Topics:

Attorney Fees: Denial or Delay of Payment. Insurer's failure to pay full impairment award was unreasonable since the law is clear that there is no apportionment under the Workers' Compensation Act. Claimant is therefore entitled to attorney fees. § 39-71-612 (1995).
Benefits: Impairment Awards. Insurer is liable for full impairment percentage where impairment rating is for a single, indivisible condition even though non-occupational factors may have contributed to the condition. There is no apportionment.
Benefits: Permanent Partial Benefits: Lost Earning Capacity. Where claimant's immediate post-injury jobs include higher paying light-duty positions which have never been medically disapproved, there is no wage loss and therefore no entitlement to permanent partial benefits. § 39-71-703 (1995).
Benefits: Rehabilitation Benefits. Where claimant's immediate post-injury jobs include higher paying light-duty positions which have never been medically disapproved, there is no wage loss and therefore no entitlement to rehabilitation benefits.
Impairment: Impairment Ratings. Insurer is liable for full impairment percentage where impairment rating is for a single, indivisible condition even though non-occupational factors may have contributed to the condition. There is no apportionment.
Penalties: Insurers. Insurer's failure to pay full impairment award is unreasonable since the law is clear that there is no apportionment under the Workers' Compensation Act. Claimant is therefore entitled to a penalty. § 39-71-2907 (1995).
Physicians: Impairment Ratings. Under sections 39-71-703 and -711, MCA (1995), an impairment evaluation must be based on the latest edition of the American Medical Association Guides to the Evaluation of Permanent Impairment. Neither the Guides nor statutes permit apportionment of an impairment rating based on occupational versus non-occupational contributions.
Wages: Actual Wage Loss. Where claimant's immediate post-injury jobs include higher paying light-duty positions which have never been medically disapproved, there is no wage loss and therefore no entitlement to permanent partial benefits. § 39-71-703 (1995).

         ¶1 The trial in this matter was held on January 17, 2001, in Missoula, Montana. Petitioner, Alexa Hudson Lalum (claimant), was represented by Mr. Howard Toole. Respondent, Safeco Insurance Company, was represented by Mr. Geoffrey R. Keller. A trial transcript has not been prepared.

         ¶2 Exhibits: Exhibits 1 through 19 were admitted through stipulation of the parties. The Court refused to admit Exhibit 20, a letter from Mr. Keller to Mr. Toole, because the document referenced the recommendations of the Department of Labor and Industry mediator. (See section 39-71-2410(b), MCA.)

         ¶3 Witnesses and Depositions: The Court received and considered the depositions of claimant and Catherine C. Capps, M.D. Claimant and Juanita Hooper Addy were sworn and testified at trial.

         ¶4 Issues presented: The issues stated in the PRETRIAL ORDER are as follows:

1. Whether Petitioner is entitled to permanent partial disability benefits in addition to the 2% impairment award previously paid as a result of her injury on September 20, 1995.
2. Whether Petitioner is entitled to rehabilitation benefits.
3. Whether Petitioner is entitled to an award of attorney fees under the provision of §39-71-612, MCA.

         ¶5 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

         ¶6 Claimant is presently 24 years old. (Ex. 7.) She graduated from high school in 1994. (Lalum Dep. at 8.) Subsequent to the industrial accident which is at issue in this case, she completed one year of college course work in accounting.

         ¶7 At the time of the claimant's industrial accident, claimant was unmarried, thus many of the quotations in this decision refer to her as "Alexa Hudson," her maiden name. She subsequently married and adopted her husband's surname, therefore, other quotations refer to her as Alexa Lalum or Alexa Hudson Lalum.

         Time-of-Injury Work and Wages

         ¶8 Around May of 1995, claimant began working as a checker for Bi-Lo Foods (BI-Lo), a grocery store in Missoula. (Id. at 12.) She worked an average of 35 hours per week at an hourly rate of $4.25 per hour.[1]

         ¶9 In July 1995, claimant took on a second, concurrent job as a home care aide with Partners In Home Care (Partners). At the time of her industrial injury, claimant's hourly wage at Partners was $5.25. She was paid bi-monthly, thus, the four pay periods previous to her industrial injury were for July 16-31, August 1-15, August 16-31, and September 1-15. Her total hours worked during those periods were 8.0, 35.25, 19.5, and 13.25, respectively. (Ex. 12.) Claimant's total hours of work for the two full months was 76. The two months (July 16 to September 15) encompassed 62 days, which amounts to 8.857 weeks (62 ÷ 7). Based on the prior four pay periods, claimant worked an average of 8.58 hours weekly for Partners.

         ¶10 If the wages and hours from both jobs are combined, at the time of her industrial accident the claimant's average weekly wage, average hours worked per week, and average hourly wage were as follows:

Average weekly wage

$195.35 [2]

Average hours worked per week

43.857

Average hourly wage

$4.45[3]

         Injury at Work

         ¶11 On September 20, 1995, claimant was checking groceries at BI-Lo While lifting a bag of cat food, she felt a shooting pain in her back. She completed her shift and returned to work the next day when she reported the incident to her employer and completed a written form describing the incident.

         ¶12 At the time of the claimant's back strain, BI-Lo was insured by Safeco Insurance Company (Safeco). A claim was submitted to Safeco and it accepted liability for the incident and thereafter paid medical benefits.

         ¶13 On September 27, 1995, claimant sought chiropractic care for her back pain at the the Moore Family Chiropractic in Florence, Montana. (Ex. 1.) She complained of "pain in her neck and upper back which radiated into her shoulders bilaterally" and "lower back pain which 'shoots through' to the front bilaterally." (Ex. 1 at 9.) During the claimant's initial visit, Jason D. Moore, D.C., identified a preexisting curvature of claimant's spine but opined that the BI-Lo incident triggered her pain. (Ex. 1 at 5, 9; Ex. 7.) As set forth later, the spinal curvature identified by Dr. Moore is scoliosis.

         ¶14 Within days after her September 20, 1995 injury, BI-Lo terminated claimant's employment. The termination is not at issue in this case.

         ¶15 Following her termination by BI-Lo, claimant sought additional work at Partners and began working full time as a home health aide. Claimant worked 116.5 hours between October 1 to October 15. (Ex. 12.) Her hours from October 1st through December 15th totaled 438.1 hours. On a weekly basis, she averaged 40.88 hours a week during that time [4] Her average weekly wage for that period was $214.62 (40.88 hours x $5.25 an hour).

         ¶16 Claimant continued working for Partners through approximately April 1996. Her work was light duty. She testified Partners had many clients and the work she requested and was assigned was light duty. Much of her work involved light housekeeping duties, such as cooking, helping clients dress, and socializing with and watching over her clients. (See e.g., Lalum Dep. at 14.)

         ¶17 Claimant continued with her chiropractic treatment while working full time for Partners, however, the frequency of treatment diminished during early 1996. She began her chiropractic treatments on September 27, 1995. (Ex. 1 at 1.) Over the next month, she received eleven treatments. (Id.) Between October 27, 1995 and the end of November, 1995, she was treated another seven times. (Id.) During December 1995, she was treated four times, in January 1996 three times, in February 1996 not at all, in March 1996 two times (following an exacerbation involving a "slip, ") and in April 1996 one time. (Ex. 1 at 1-2, 16, 21.)

         ¶18 In April 1996, claimant began working for Village Health Care (Village) which provides institutional care. Claimant took the job because Village paid more -- $6.50 an hour, offered to train her as a certified nursing aide (CNA), which is a higher paying job than a home health aide, and provided a regular, full-time work week of three 12-hour days per week. Claimant's duties at Village included handling medical records, doing laundry, changing beds, and bathing and transferring patients. She considered the work strenuous and did not like the type of work.

         ¶19 During her stint with Village, claimant earned a CNA designation.

         ¶20 In October 1996, claimant quit Village and went to work for Bitterroot Valley Independent Living Center (Bitterroot) in Stevensville, Montana. Bitterroot operates a residential care facility.

         ¶21 Claimant worked a "four on, two off" schedule for Bitterroot, meaning she worked four eight-hour days in succession, then had two days off. (Lalum Dep. at 17.) On a seven day work-week basis, she worked 37" hours a week.[5]While not positive about her hourly wage, claimant testified it was $6.50 an hour. Thus, her weekly earnings were $242.65.

         ¶22 While working for Bitterroot, claimant requested and was assigned "Aisle C" work, which was light-duty work. She described the work as follows:

Well, everybody was considered independent, meaning they were all mobile. They were all able to do their own, you know, stand ups, sit downs, go to the bathroom, whatever. I passed out meals. I did the paperwork. I did laundry or housekeeping, or just general --general stuff that they needed done. Passed out meds, you know, for them. Fresh towels. Whatever they needed.

(Lalum Dep. at 17.)

         ¶23 While working for Village and Bitterroot, claimant continued her chiropractic care. However, when examined by Dr. Robert J. Seim, an orthopedic surgeon, on June 19, 1997, she indicated that her job at Bitterroot was light duty and was not exacerbating her condition. He recorded:

In May of '96 she began full-time work at North Valley Health Care in Stevensville doing patient care. The patient care amounts basically to answering the phone and being sure the patients all have their needs met. It amounts to no significant amount of bending, twisting, or other such activity. If [sic] fact, she says a good part of the time she simply sits and monitors patients. During that time at Valley Health she was given some back class on how to use her back and also used a back brace. In November of '96 the patient moved back to Stevensville and ...

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