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Kellberg v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

November 15, 2001

RICHARD KELLBERG Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for TIMBERWELD MANUFACTURING Employer.

          Submitted: October 1, 2001

          ORDER AMENDING PARAGRAPH 31 AND OTHERWISE DENYING RESPONDENT'S POST-TRIAL MOTIONS

          MIKE MCCARTER JUDGE.

         Summary: Insurer filed a motion requesting amendment, clarification, or reconsideration of the Court's decision, arguing that the Court overlooked or ignored its prior decision in Osborne v. Planet Ins., WCC No. 9307-6842, Findings of Fact, Conclusions of Law and Judgment (August 22, 1994). Specifically, it argues that since claimant quit his modified job he is ineligible for temporary total disability benefits and has failed to prove that the modified job is unavailable or that the medical release for the job has been rescinded.

         Held: Claimant established that the modified job was unavailable as of November 1, 2001. Court is entitled to rely on the employer's initial testimony regarding the length of modified jobs and is not bound by later testimony indicating a longer time. The testimony was conflicting testimony and the Court is entitled to determine which part of the testimony it should credit. Osborne is not inconsistent with the Court's determination in this case.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-701(4), MCA (1999). Any construction of section 39-71-701(4), MCA, which precludes claimant from requalifying for temporary total disability after a modified position would have ended would amount to penalty and is contrary to the plain language of the section.
Burden of Proof: Conflicting Evidence: Generally. Where a witness gives conflicting testimony, the Court must determine what testimony, if any, is the more credible.
Cases Discussed: Osborne v. Planet Ins. Osborne v. Planet Ins. does not hold that a claimant is disqualified from receiving temporary total disability benefits where he proves by a preponderance of the evidence that after he refused or quit modified work the work became unavailable.

         ¶1 Respondent (Liberty) moves, in the alternative, for amendment, clarification, or reconsideration of the Court's Findings of Fact, Conclusions of Law and Judgment in this matter. The motions are denied except as to paragraph 31, which erroneously refers to March 2, 2000 - the reference should be to March 2, 2001.

         Discussion

         ¶2 Liberty argues several grounds for its motions. Only one is meritorious and is limited to paragraph 31. That paragraph refers to March 2, 2000. The reference misstates the year, which should be 2001. The error was a typographical one, therefore paragraph 31 shall be amended accordingly.

         ¶3 Liberty further argues that the Court erred when it determined in paragraph 31 that the claimant's modified job would have ended on November 1, 2000. It urges that the finding is speculative and not supported by a preponderance of credible evidence. The argument is without merit. Sam Blaylock (Blaylock), the plant manager, initially testified that the longest time an injured worker had been kept on light duty was two to three months but that he would authorize three to six months light duty. His testimony was as follows:

o Okay. And what's the longest time you've ever had someone ...

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