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Purkey v. AIG

Court of Workers Compensation of Montana

January 13, 2005

ROBERT PURKEY Petitioner
v.
AIG and LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondents/Insurers.

          Submitted: September 23, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: The claimant suffered a low-back injury in 2002 for which AIG was liable. He reached maximum medical improvement with respect to the injury and returned to his time-of-injury job on September 15, 2003. Shortly thereafter, he suffered a second, work-related aggravation of his low-back condition. Liberty Mutual was the insurer at the time but denied his claim for benefits because it was informed the claimant had failed to give his employer timely notice of the 2003 aggravation. The claimant then petitioned the Workers' Compensation Court seeking a determination that Liberty Mutual is liable for the aggravation and also seeking further temporary total disability benefits from AIG for an additional six-month period on account of its alleged failure to comply with section 39-71-609, MCA (2003), when converting his 2002 injury benefits from temporary total to permanent partial benefits.

         Held:

         (1) The claimant did not notify his employer of his 2003 aggravation within thirty days as required by section 39-71-603, MCA (2003), therefore, Liberty Mutual Fire Insurance Company is not liable for the aggravation.

         (2) AIG complied with the requirements of section 39-71-609, MCA (2003), when converting the claimant's benefits from temporary total to permanent total. Even if it did not comply with the statute, the claimant's return to work two weeks later terminated his entitlement to any further temporary total disability benefits.

          Topics:

Limitations Periods: Notice to Employer. A claim for benefits is barred where the claimant fails to give his or her supervisor or other manager notice of an industrial accident within thirty days following the accident. § 39-71-603(1), MCA (2003).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-603 (2003). A claim for benefits is barred where the claimant fails to give his or her supervisor or other manager notice of an industrial accident within thirty days following the accident. § 39-71-603(1), MCA (2003).
Benefits: Termination of Benefits. To terminate temporary total disability benefits and convert them to permanent partial disability benefits, an insurer must comply with section 39-71-609, MCA (2003), which requires a physician's determination that the claimant has reached maximum medical improvement, specification of his or her physical restrictions, and approval of his or her return to work based on a job analysis prepared by a vocational consultant, and further requires the insurer to furnish the claimant with a copy of the physician's determination. The job analysis requirement is satisfied where the evidence shows that even though the physician did not approve a time-of-injury job analysis in writing, both the physician and the claimant understood that the physician was approving a return to work in the time-of-injury job and the physician had previously reviewed the job analysis and was aware of the job requirements.
Benefits: Termination of Benefits: Coles. To terminate temporary total disability benefits and convert them to permanent partial disability benefits, an insurer must comply with section 39-71-609, MCA (2003), which requires a physician's determination that the claimant has reached maximum medical improvement, specification of his or her physical restrictions, and approval of his or her return to work based on a job analysis prepared by a vocational consultant, and further requires the insurer to furnish the claimant with a copy of the physician's determination. The job analysis requirement is satisfied where the evidence shows that even though the physician did not approve a time-of-injury job analysis in writing, both the physician and the claimant understood that the physician was approving a return to work in the time-of-injury job and the physician had previously reviewed the job analysis and was aware of the job requirements.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-609 (2003). To terminate temporary total disability benefits and convert them to permanent partial disability benefits, an insurer must comply with section 39-71-609, MCA (2003), which requires a physician's determination that the claimant has reached maximum medical improvement, specification of his or her physical restrictions, and approval of his or her return to work based on a job analysis prepared by a vocational consultant, and further requires the insurer to furnish the claimant with a copy of the physician's determination. The job analysis requirement is satisfied where the evidence shows that even though the physician did not approve a time-of-injury job analysis in writing, both the physician and the claimant understood that the physician was approving a return to work in the time-of-injury job and the physician had previously reviewed the job analysis and was aware of the job requirements.
Benefits: Termination of Benefits. Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
Benefits: Termination of Benefits: Coles. Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-609 (2003). Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-701(7) (2003). Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.

         ¶1 The trial in this matter was held at the Richland County Courthouse in Sidney, Montana, on September 23, 2004. Petitioner, Robert Purkey, appeared in person and with his counsel, Mr. Norman L. Newhall. Respondent AIG was represented by Mr. Donald R. Herndon. Respondent Liberty Mutual Fire Insurance Company (Liberty Mutual) was represented by Ms. Carrie L. Garber.

         ¶2 Exhibits: Exhibits 1 through 61, 70, and 71 were admitted without objection. Page 2161 of Exhibit 80 was admitted; the remaining pages of exhibit 80 were withdrawn. There were no exhibits numbered 62 through 69 or exhibits numbered 72 through 79.

         ¶3 Witnesses and Depositions: Robert Purkey, Andrea Workman, Chris Stobb, Marvin L. Howe, Sharon Nelson, Mike Obergfell, and Kurt Koffler testified at trial. In addition, the parties submitted the depositions of Robert Purkey, Sharon Nelson, and Mike Obergfell to the Court for its consideration.

         ¶4 Post-trial Evidence: During trial the Court learned that some of the information from AIG's file had been redacted during discovery but that claimant's counsel had not been informed of the redaction. The Court ordered that AIG provide the claimant's counsel with a privilege log concerning the redaction and left the record open in the event that claimant's counsel might seek to compel disclosure of additional information and then seek to present additional evidence. The information the Court ordered AIG to provide was thereafter provided. That information did not lead to any additional discovery issues or evidence. The record was therefore deemed closed.

         ¶5 Issues Presented: The issues, as stated in the Pretrial Order, are as follows:

¶5a Whether Petitioner suffered a compensable injury to his back on or about September 21, 2003, while working for Sidney Sugars.
¶5b Whether Petitioner provided notice required by § 39-71-603, M.C.A., to his employer within 30 days of the date he contends he was injured on the job.
¶5c Whether the employer or the employer's agent had actual notice of the injury within 30 days.
¶5d Whether Petitioner is entitled to workers' compensation benefits from Liberty Mutual for the September 21, 2003 injury, including medical benefits, wage loss benefits and any other benefits afforded under the Workers' Compensation Act.
¶5e Whether AIG complied with Section 39-71-609 for the conversion of wage loss benefits payable for the November 16, 2002 injury.
¶5f Whether Petitioner is entitled to wage loss benefits from AIG from and after August 29, 2003 for the November 16, 2002 injury.
¶5g Whether AIG acted unreasonably in refusing to pay wage loss benefits after August 29, 2003, such that Petitioner is entitled to attorney fees and penalty.
¶5h Whether Liberty Mutual acted unreasonably in denying liability for the September 21, 2003 injury, such that that [sic] Petitioner is entitled to attorney fees and penalty.

         (Pretrial Order at pp. 2-3.)

         ¶6 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

         ¶7 On November 16, 2002, petitioner, Robert Purkey (claimant), injured his low back while working at the Sidney, Montana, sugar beet processing plant owned and operated by Sidney Sugars, Incorporated (Sidney Sugars). At the time of his injury, he was working as a "rock-and-coke loader," which was a seasonal job.

         ¶8 The claimant's job as a "rock-and-coke loader" involved his driving a front-end loader most of the day but he was also required to check and clean screens on the tops of bins and do some occasional shoveling.

         ¶9 At the time of the claimant's 2002 injury, Sidney Sugars was insured by AIG. On December 11, 2002, that ...


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