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Daulton v. MHA Workers' Compensation Trust

Court of Workers Compensation of Montana

July 9, 2001

MARSHA DAULTON Petitioner
v.
MHA WORKERS' COMPENSATION TRUST Respondent/Insurer for ST. PETER'S HOSPITAL Employer.

          Submitted: February 21, 2001

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary of Case: Claimant, a registered nurse, suffers from an occupational disease involving both of her shoulders and cannot return to her time-of-injury job. However, she was determined to be at maximum medical improvement and released to work for a job identified by a vocational consultant as appropriate for her. Nonetheless, she claims she cannot return to work and is entitled to temporary total disability benefits.

         Held: Claimant is no longer entitled to temporary total disability benefits since she has reached MMI. 39-71-701 (1997). The insurer complied with the notice requirements of section 39-7-609 (1997-1999) and, even though not applicable, with the Coles requirements. No determination is made as to whether claimant is permanently totally or permanently partially disabled since those issues were not raised. Attorney fees are denied since claimant did not prevail and the insurer's termination of benefits was reasonable.

         Topics:

Benefits: Temporary Total Benefits. Under 1997 and 1999 law, §§ 39-71-701 and -609, MCA, once claimant has been found to be at MMI and has been released to return to any sort of employment, she is no longer entitled to temporary total disability benefits.
Benefits: Termination of Benefits. Under 1997 and 1999 law, § 39-71-701 and -609, MCA, once claimant has been found to be at MMI the insurer may terminate claimant's temporary total disability benefits upon 14 days notice. If the claimant has also been released to return to any sort of employment, the insurer may immediately terminate temporary total disability benefits.
Benefits: Termination of Benefits: Coles. The Coles' requirements are inapplicable under 1997 and 1999 law, although the legislature has re-adopted them effective July 1, 2001. [Editor's Note: The effective date of the 2001 Coles' amendment is March 30, 2001, not July 1, 2001.]
Benefits: Termination of Benefits: Coles. Even if the Coles' requirements are applicable under 1997 and 1999 law, they are satisfied where the physician (1) finds claimant at MMI, (2) determines her physical restrictions, (3) releases her to return to work in a specific job which was found to be vocationally appropriate, and (4) a copy of the physician's report is furnished to claimant.
Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-609. Under 1997 and 1999 law, §§ 39-71-701 and -609, MCA, once claimant has been found to be at MMI the insurer may terminate claimant's temporary total disability benefits upon 14 days notice. If the claimant has also been released to return to any sort of employment, the insurer may immediately terminate temporary total disability benefits.
Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-701. Under 1997 and 1999 law, 39-71-701, once a claimant has been found to be at MMI she is no longer entitled to temporary total disability benefits provided she has been given notice in accordance with 39-71-609.

         ¶1 The trial in this matter was held on February 21, 2001, in Helena, Montana. Petitioner, Marsha Daulton (claimant), was present and represented by Mr. John C. Doubek. Respondent, MHA Workers' Compensation Trust (MHA), was represented by Mr. G. Andrew Adamek.

         ¶2 Exhibits: Exhibits 1 through 13 were admitted without objection.

         ¶3 Witnesses and Depositions: The parties submitted the depositions of claimant, Margot Hart, and Kenneth V. Carpenter, M.D. for the Court's consideration. Claimant, Margot Hart, Larry Daulton, Janice Edgar, and Gerry Blackman were sworn and testified. A trial transcript was not prepared.

         ¶4 Issues Presented: As set forth in the Pretrial Order, the following issues are presented for decision:

1.Whether Petitioner is entitled to have her TTD benefits reinstated.
2.Whether Petitioner is entitled to attorney fees and costs from Insurer.

         ¶5 Having considered the 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

         ¶6 Claimant is 47 years old. She was licensed as a Practical Nurse (LPN) in 1986 and thereafter worked as an LPN on the surgical floor at St. Peter's Hospital (St. Peter's) for approximately ten years. (Daulton Dep. at 8-9, 14.) In 1995 she was licensed as an RN and was thereafter hired in a RN position as a "float nurse" at St. Peter's. As a float nurse she worked in different areas of the hospital, however, she worked mostly in surgery. (Id. at 19-20, 22.)

         ¶7 During her employment at St. Peter's, claimant began experiencing right shoulder pain. The parties agree that as of September 10, 1997, claimant was suffering from an occupational disease (OD) of her right shoulder. (Uncontested Fact No. 1.) MHA, which insured St. Peter's at the time, accepted liability for her disease. (Uncontested Fact No. 2.)

         ¶8 Claimant was referred by St. Peter's to Dr. Allen Weinert, a physiatrist, for treatment. He initially saw her on September 22, 1997. At that time, her primary complaints were of constant pain in the right shoulder and intermittent numbness into the right arm. (Ex. 4 at 109.) Dr. Weinert diagnosed mild right rotator cuff tendinitis, right cervical and scapular region myofascial pain, and mild right thoracic outlet syndrome. (Id. at 111.) He prescribed physical therapy and approved claimant to work on the obstetrical floor at St. Peter's, however, he disapproved her working in surgery. (Id.)

         ¶9 Claimant continued to have shoulder pain and on October 30, 1997, she saw Dr. Carpenter, an orthopedic surgeon. (Daulton Dep. at 28; Carpenter Dep. at 5.) Her pain continued and on November 20, 1997, an MRI was done. It showed "impingement on the supraspinatus muscular tendon complex by the acromion process," and "a partial tear at the junction of the of the supraspinatus muscular rendon complex." (Ex. 5 at 124.) On January 7, 1998, Dr. Carpenter performed rotator cuff surgery on claimant's right shoulder. (Carpenter Dep. at 10; Ex. 5 at 125-26.)

         ¶10 Claimant returned to work at St. Peter's in March or April, 1998, in a part-time, non-nursing position. She was assigned to assist St. Peter's in developing a database of latex-free products. (Daulton Dep. at 29, 56.) She called manufacturers and distributors of latex-free products and entered data regarding the products into a computer. (Daulton Dep. at 29, 34.) She worked approximately two hours a day, four days a week. (Ex. 9 at 291.) Although claimant had minimal computer skills, she was able to do her assigned job. (Id.)

         ¶11 By the end of March, however, claimant was experiencing weakness when elevating her right arm. (Carpenter Dep. at 13; Ex. 1 at 8.) On April 22, 1998, Dr. Carpenter noted that her range of motion was ...


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