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Choi v. Costco Wholesale Corp.

Court of Workers Compensation of Montana

August 1, 2005

DELORES CHOI Petitioner
v.
COSTCO WHOLESALE CORPORATION Respondent/Insurer.

          Submitted: July 18, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: 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 neurologist.

         Held: 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 authorized it.

         Topics:

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 benefits.

         ¶1 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.

         ¶2 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.

         ¶3 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.

         ¶4 Issues Presented: At the time of trial, two issues were presented. As set forth in the Pretrial Order, those issues were:

¶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 disability benefits.

         ¶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 The petitioner (claimant) worked for Costco Wholesale Corporation (Costco) at its Kalispell store for approximately ten years. Costco is a large warehouse-type retailer.

         ¶7 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 temporary cashier.

         ¶8 On July 19, 2000, the clamant injured her right knee when she tripped and fell at work. (Ex. 1 at 1.)

         ¶9 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 ...


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