IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
August 7, 2012
CHRISTIAN CORNELIUS PETITIONER
LUMBERMEN'S UNDERWRITING ALLIANCE RESPONDENT AND EMPLOYERS INSURANCE COMPANY RESPONDENT.
The opinion of the court was delivered by: James Jeremiah Shea Judge
ORDER DENYING RESPONDENT EMPLOYERS INSURANCE COMPANY'S MOTIONS FOR A NEW TRIAL, AMENDMENT TO FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND FOR RECONSIDERATION
Summary: Respondent moved for a new trial, amendment to this Court's findings of fact and conclusions of law, and reconsideration of this Court's decision, arguing that the Court erred in finding it liable for Petitioner's occupational disease claim and for awarding Petitioner TTD and medical benefits, plus her attorney fees and a penalty.
Held: Respondent has not proven that it is entitled to any of the relief sought in its motions. Its motions for a new trial, amendment to the findings of fact and conclusions of law, and reconsideration are denied.
¶ 1 Respondent Employers Insurance Company (Employers) moves this
Court to grant Employers a new trial, amend its Findings of Fact,
Conclusions of Law and Judgment, and/or reconsider its Findings of
Fact, Conclusions of Law and Judgment in this matter.*fn1
Employers contends that the Court erred in holding it liable
for Petitioner Christian Cornelius' occupational disease claim,
awarding Cornelius temporary total
disability (TTD) and medical benefits, and concluding that Employers
is liable for Cornelius' attorney fees and a penalty.*fn2
Cornelius and Respondent Lumbermen's Underwriting Alliance
(Lumbermen's) both oppose Employers' combined motions.*fn3
¶ 2 Employers contends that it is entitled to relief from the Findings of Fact, Conclusions of Law and Judgment issued in this matter, either in the form of a new trial, amendment to the findings of fact and conclusions of law, or reconsideration. Employers relies on ARM 24.5.337 and 24.5.344 in seeking this relief.*fn4 Cornelius responds that the alleged errors Employers has set forth in its brief in support of its motions do not provide grounds for either reconsideration, amendment, or a new trial, but rather are matters more appropriately heard on appeal.*fn5 Lumbermen's contends that Employers has not offered valid reasons for its motions and has presented the same arguments it made, and which the Court rejected, at trial.*fn6
Employers' Motions to Amend and for a New Trial
¶ 3 Under ARM 24.5.344, any party to a dispute may petition for a new trial or request amendment to the Court's findings of fact and conclusions of law within 20 days after the judgment is served. The party requesting the new trial or amendment shall set forth specifically and in full detail the relief requested. Lumbermen's contends that Employers has failed to satisfy the specificity requirement regarding its request for amendment.*fn7 Indeed, the only mention of Employers' request for amendment is in the caption of its petition. Therefore, for its motion to amend, I conclude Employers has failed to meet the requirements of ARM 24.5.344(2) in that it did not set forth specifically and in full detail the relief requested by the motion to amend.
¶ 4 As for Employers' motion for a new trial, this Court has held that the applicable grounds for a new trial are found within § 25-11-102, MCA,*fn8 as limited by § 25-11-103, MCA, which provides that only subsections (1), (3), and (4), apply to cases tried by a court without a jury. The applicable provisions of § 25-11-102, MCA, state:
The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of the party:
(1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;
. . . (3) accident or surprise that ordinary prudence could not have guarded against;
(4) newly discovered evidence material for the party making the application that the party could not, with reasonable diligence, have discovered and produced at the trial . . . .
¶ 5 Employers does not specify which specific grounds under §
25-11-102, MCA, should entitle it to a new trial. The only argument
Employers sets out specific to its motion for a new trial is,
"Specifically, it would appear that the evidence of the Petitioner's
work history mandates that the award of Temporary Total Disability
Benefits be subject to a new trial at the very least."*fn9
Cornelius points out that Employers has not alleged any
specific abuse of discretion nor has it set forth any alleged
irregularities in this Court's proceedings. Cornelius further notes
that Employers has set forth no allegations of accident or surprise.
Cornelius contends that the only remaining evidence Employers may be
relying upon is the arguable "newly discovered evidence" that she was
briefly employed during the spring of 2012 -- months after the trial
Both Cornelius and Lumbermen's point to Burglund v. Liberty Mut. Fire Ins. Co., in which the Montana Supreme Court held that it was within this Court's discretion to deny a motion for a new trial from an injured worker who argued his industrial injury allegedly forced him to stop working 17 months after his trial.*fn11 In its underlying decision, this Court stated that it cannot retry a case because of subsequent developments, but that a change in a claimant's condition and disability could be grounds for a new petition under § 39-71-2909, MCA.*fn12 Likewise in the present case, Employers asks this Court to revisit its decision based on developments which occurred post-trial. Employers has not set forth grounds which convince me a new trial is warranted in this instance, and therefore its motion for a new trial is denied.
Employers' Motion for Reconsideration
¶ 6 Employers further moves this Court for reconsideration of its decision. Under ARM 24.5.337, any party may move for reconsideration of a decision of this Court within 20 days after the decision is served.
¶ 7 In its brief, Employers sets forth fourteen items which it calls "facts [which] deserve some more attention."*fn13 Employers does not allege that the Court overlooked any of these items, and I interpret Employers' request for "attention" to mean that Employers believes this Court did not give enough weight to these fourteen items. However, Employers does not offer any direction as to what exactly it expects the Court to make of these items or how this list should cause the Court to reconsider its decision in this case. In its brief, Lumbermen's asserts that Employers set forth these items to attack Cornelius' credibility, and argues that reconsideration is unwarranted because the Court specifically found Cornelius to be credible.*fn14
¶ 8 Employers has not asked the Court to reconsider its credibility finding regarding Cornelius and therefore, I do not see the relevancy of many of the items Employers set forth for "more attention." However, Employers has set forth three arguments on which it alleges it is entitled to reconsideration which incorporate some of these items. Employers contends that: the Court's conclusion that it is liable for Cornelius' occupational disease claim is erroneous because the conclusion was not based on objective medical findings; the Court erred in concluding that Cornelius is entitled to TTD benefits because she was involuntarily terminated and continued to work; and the Court erred in awarding Cornelius attorney fees and a penalty.
I. Employers' Liability for Cornelius' Occupational Disease Claim
¶ 9 Employers contends that the Court's determination that Cornelius suffered from an occupational disease is in error because the Court relied upon an e-mail sent by K. Allan Ward, M.D., which does not contain objective medical findings. Employers acknowledges that the Court specifically noted objective medical findings from the medical records of John G. VanGilder, M.D., and physical therapist Jeff Swift, R.P.T. However, Employers argues that without Dr. Ward also setting forth objective medical findings, the Court cannot rely on his opinion.*fn15 Employers cites to no statute, rule, or case law which requires all the elements for a claim to be found within a single medical record. As Lumbermen's notes, the medical evidence and Cornelius' testimony, taken together, demonstrates that she suffered an occupational disease from her employment with Employers' insured.*fn16 I therefore conclude Employers is not entitled to reconsideration on this issue.
II. Cornelius' Receipt of TTD Benefits
¶ 10 Employers next argues that the Court erred in awarding Cornelius TTD benefits for two reasons: she was terminated from her employment with Employers' insured, and she has worked for another employer subsequent to her termination from her time-of-injury employment. Employers relies on Carey v. American Home Assurance Co., in which I determined that an injured worker whose job position was eliminated was not entitled to TTD benefits.*fn17 Employers argues that in Carey, this Court determined that the claimant was not entitled to TTD benefits because her industrial injury did not cause her wage loss, and that the Court erred in not making a similar determination in the present case.*fn18
¶ 11 In Carey, the claimant's job position was eliminated as part of a
nationwide corporate restructuring of Sam's Club stores.*fn19
She was working in her time-of-injury position without
restrictions when her job was eliminated on May 2, 2007. On May 8,
2007, her treating physician found her to be at maximum medical
improvement (MMI) and released her to return to work without
restriction.*fn20 In Carey, I concluded that the
claimant was not entitled to TTD benefits because she was never
statutorily eligible to receive them: although Carey argued that she
"requalified" for TTD benefits under § 39-71-701(4), MCA, I held that
she could not "requalify" for a benefit she had never qualified for in
the first place.*fn21
¶ 12 Under § 39-71-701(1), MCA: Subject to the limitation in . . . [39-71-701(4), MCA], a worker is eligible for temporary total disability benefits:
(a) when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing; or
(b) until the worker has been released to return to the employment in which the worker was engaged at the time of the injury or to employment with similar physical requirements.
¶ 13 In Carey, the claimant had been released to return to the employment in which she was engaged at the time of her industrial injury. In fact, she was working in that employment at the time that her job position was eliminated, and it is undisputed that her treating physician had released her to return to that position or a position with similar physical requirements.*fn22 Unlike Carey, at the time of trial Cornelius had not been released to return to her time-of-injury employment or to employment with similar physical restrictions.*fn23 Cornelius argues that she is unable to seek work with similar physical requirements due to her lack of a work release from a medical provider, and Employers' refusal to accept liability has precluded her from receiving vocational rehabilitation benefits which could hasten her return to the workforce.*fn24
¶ 14 Section 39-71-116(35), MCA, defines temporary total disability as "a physical condition resulting from an injury . . . that results in total loss of wages and exists until the injured worker reaches maximum medical healing." Employers argues that Cornelius is not eligible for TTD benefits because she cannot satisfy § 39-71-701(1)(a), MCA: specifically, that she cannot prove that her total wage loss was a result of an injury. Employers argues that Cornelius suffered a total loss of wages on November 2, 2009, when she was terminated from her employment, and since she was not taken off work until November 4, 2009, her doctor's work restriction did not cause her total wage loss.*fn25
¶ 15 However, leaving aside the question of whether Cornelius can satisfy § 39-71-701(1)(a), MCA, the facts as found in this Court's ruling in this matter clearly indicate that Cornelius can satisfy § 39-71-701(1)(b), MCA, and in fact, the Court so held in the underlying decision.*fn26 As set forth in the underlying decision, Cornelius is eligible for TTD benefits under § 39-71-701(1)(b), MCA.
¶ 16 As to Employers' argument that Cornelius is not entitled to TTD benefits because she worked for a subsequent employer, in Dostal v. Uninsured Employers' Fund, I held that an injured worker who had received wages on two occasions after the Uninsured Employers' Fund (UEF) incorrectly terminated her TTD benefits remained eligible for reinstatement of her TTD benefits except that the UEF was relieved of liability for TTD benefits for the weeks in which the claimant received wages.*fn27 The rule likewise applies here. At trial, Employers raised no argument that Cornelius' "service-for-service agreement" with a veterinary clinic constituted wages. However, Employers now argues that Cornelius subsequently received wages for work she did at the veterinary clinic subsequent to trial. Therefore, I make no determination on these issues, but if the parties cannot agree on which weeks post-trial Cornelius received wages which would obviate Employers' liability for TTD benefits for specific weeks, the parties may bring this matter to the Court on a new petition.
III. The Award of Attorney Fees and Penalty
¶ 17 Employers further argues that it is entitled to reconsideration of the Court's award of attorney fees and a penalty. Employers claims that this Court's imposition of attorney fees and a penalty deprived it of its ability to mount a defense to Cornelius' claim.*fn28
Employers argues that the Court based its decision on an incorrect premise and further argues that the Court incorrectly relied upon § 39-71-407(5), MCA, in determining that Employers should have paid benefits because this subsection applies only to industrial injuries and not to occupational diseases.*fn29
¶ 18 Employers notes that in the underlying decision, this Court stated, "No one has argued that Cornelius' present condition is not work-related."*fn30 Employers argues that this is incorrect, because one of the issues set forth in the Pretrial Order specifically stated, "Which, if either, of the Respondent insurers is liable for medical benefits payable . . . ."*fn31 While the issue may have included this language, Employers does not point out to the Court where any party at trial actually set forth any argument that neither insurer was liable for Cornelius' condition. Simply suggesting in the agreed-upon issue that the possibility exists that Cornelius' condition is not work-related is not the same thing as actually arguing so at trial. Since Employers has not drawn the Court's attention to any such argument, Employers has not proven that the Court's statement in the underlying decision is incorrect.
¶ 19 However, Employers further argues that the Court incorrectly relied upon § 39-71-407(5), MCA, which states in pertinent part, "If there is no dispute that an insurer is liable for an injury . . . ." Employers points out that in the present case, Cornelius did not suffer an injury but rather an occupational disease and Employers therefore argues § 39-71-407(5), MCA, is inapplicable. Employers argues that § 39-71-407, MCA, "does have separate provisions dealing with occupational diseases."*fn32
¶ 20 Under § 39-71-407(10), MCA, when compensation is payable for an occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease. In the present case, this employer would be Employers' insured. While Employers emphasizes the use of the word "injury" in § 39-71-407(5), MCA, I note that elsewhere in the underlying decision at issue in this matter, I cited In re Rusco, where this Court held:
Liability, as between insurers, has been the grist of a number of decisions over the past few years. The rules are straightforward. If a claimant has reached MMI with respect to a first industrial injury and he thereafter suffers a work-related, permanent, and material aggravation of his medical condition, then the insurer at risk at the time of the aggravation is liable for compensation and medical benefits attributable to the condition. If, on the other hand, the subsequent aggravation is temporary or immaterial, and the disabling condition results from a natural progression set in motion by the first injury, then the insurer for the original injury is liable for compensation and medical benefits for the condition.*fn33
¶ 21 In discussing whether Employers acted unreasonably in adjusting Cornelius' claim, I cited to § 39-71-407(5), MCA, and also referenced Rusco, noting that Rusco was factually similar and that Employers, like the insurer in Rusco, had a duty to pay benefits unless and until it proved that Lumbermen's was liable for those benefits. In Popenoe v. Liberty Northwest Ins. Corp., I found an insurer to have acted unreasonably in refusing to pay benefits in a case which was factually similar to a case in which the Montana Supreme Court found liability.*fn34 In the present case, I fail to appreciate why this case should have been treated differently by the insurers in light of Rusco. While Employers believes it should escape its duty by suggesting that it is possible that an argument might be made that Cornelius' condition is not work-related and therefore neither insurer would be liable -- and that for this Court to conclude otherwise would preclude Employers from mounting a defense -- I concluded that Employers' conduct was unreasonable precisely because it did not mount an effective defense as to why it failed to pay Cornelius' claim and then seek indemnification from Lumbermen's. I therefore conclude Employers is not entitled to reconsideration of my decision regarding Cornelius' entitlement to her attorney fees and a penalty under the applicable statutes.
¶ 22 Employers' motion to amend findings of fact and conclusions of law is DENIED.
¶ 23 Employers' motion for a new trial is DENIED.
¶ 24 Employers' motion for reconsideration is DENIED.
¶ 25 Pursuant to ARM 24.5.348(2), this Order is certified as final and, for purposes of appeal, shall be considered as a notice of entry of judgment.
c: Jay P. Dufrechou/Margaret A. Dufrechou Charles G. Adams Kelly M. Wills Submitted: May 29, 2012