Submitted: July 18, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant seeks temporary total disability benefits,
claiming she cannot work on account of pain. She also seeks
authorization for a medical procedure recommended by her
The claimant quit working on account of conflict with her
employer and the emotional stress arising from that conflict,
not on account of pain as she now claims. Her pain does not
prevent her from working at her time-of-injury job and she is
not entitled to TTD benefits. Her request for authorization
for the medical procedure is moot since the insurer has now
Benefits: Temporary Total Benefits. To be
entitled to temporary total disability benefits, an injured
worker must prove that she has suffered a total loss of wages
on account of her industrial injury. Where the loss of wages
is due to factors unrelated to the injury and the injury does
not preclude her from working at her time-of-injury job, the
claimant is not entitled to temporary total disability
The trial in this matter was held in Kalispell, Montana, on
June 21, 2005. The petitioner was present and represented by
Mr. David W. Lauridson. The respondent was represented by Mr.
G. Andrew Adamek. Because of a family medical emergency, one
of the expected witnesses - Danette Gildart - was unable
testify. By agreement of counsel, she thereafter testified by
telephone on July 18, 2005. The case was deemed submitted at
the conclusion of her testimony.
Exhibits: Exhibits 1 through 5, 7 and 8 were
admitted without objection. Exhibit 6 was to consist of two
office notes of Dr. Loren S. Vranish. Those notes were
originally to be attached to Dr. Vranish's deposition but
were apparently misplaced and were not in fact attached. They
were to be supplied post-trial; however, by letter dated June
22, 2005, Mr. Adamek advised the Court that Dr. Vranish's
office could not locate the notes but that the notes are
already in evidence as Exhibit 5 at pages 9 and 22. Thus,
there is no Exhibit 6.
Witnesses and Depositions: The petitioner, John
Bartlett, Laurie Shay, Melissa Stoltz, Jennifer Lee Gemmrig,
and Janet McCully testified. In addition, the parties
submitted the depositions of the petitioner, Dr. Loren S.
Vranish, Edith Paxman, Dr. Bret D. Lindsay, and Dr. Laura
Csaplar for the Court's consideration.
Issues Presented: At the time of trial, two issues
were presented. As set forth in the Pretrial Order, those
¶4a Whether Petitioner's current alleged right lower
extremity condition and alleged disability arose out of and
in the course of her employment on October 15, 2001 and/or
July 1, 2000, while employed by Costco Wholesale Corporation
in Kalispell, Flathead County, Montana.
¶4b Whether Petitioner is entitled to payment of
temporary total disability benefits retroactive to May 6,
2004, and medical benefits.
(Pretrial Order at 7.) The issue concerning the
claimant's lower extremity condition and medical benefits
concerns the insurer's refusal to authorize a lumbar
sympathetic blockade recommended by Dr. Lindsay for
diagnostic purposes. Subsequent to trial, the insurer agreed
to authorize the procedure. (June 24, 2005 letter of G.
Andrew Adamek to Judge McCarter.) That issue is therefore
moot. Thus, the Court addresses only the question of the
claimant's entitlement to retroactive temporary total
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:
The petitioner (claimant) worked for Costco Wholesale
Corporation (Costco) at its Kalispell store for approximately
ten years. Costco is a large warehouse-type retailer.
The claimant worked part time - twenty-five hours a week. She
worked in various capacities, including in the bakery, in
concessions, as a stocker, as a front-end assistant, and as a
On July 19, 2000, the clamant injured her right knee when she
tripped and fell at work. (Ex. 1 at 1.)
On October 15, 2001, the claimant suffered a crush-type
injury to her right foot when a forklift ran over it.
(Id. at 2.) An x-ray of the foot showed a
nondisplaced fracture of ...