Submitted: October 1, 2001
ORDER AMENDING PARAGRAPH 31 AND OTHERWISE DENYING
RESPONDENT'S POST-TRIAL MOTIONS
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or that the medical release for the job has been rescinded.
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.
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
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.
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.
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
o Okay. And what's the longest time you've ever had