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Estate of Welch v. Holcim, Inc.

Supreme Court of Montana

January 7, 2014

THE ESTATE OF ROSS WELCH, Petitioner and Appellant,

Submitted on Briefs: November 20, 2013

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 11-403C Honorable John C. Brown, Presiding Judge.

For Appellant: Stephen C. Pohl; Attorney at Law; Bozeman, Montana

For Appellees: Thomas Hattersley, III, Teri A. Walter; Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana (for Holcim, Inc.)

Timothy Charles Little; Human Rights Bureau; Helena, Montana (for Montana Human Rights Commission).



¶1 The estate of petitioner Ross Welch (Welch) appeals the Eighteenth Judicial District Court's order affirming the decision of the Montana Human Rights Commission (Commission), which upheld the Montana Department of Labor and Industry's dismissal of Welch's discrimination complaint. Although many issues were raised, we find the following issue dispositive: Whether the District Court erred in affirming the Hearing Officer's determination that Welch did not prove that he belonged to a protected class. We affirm.


¶2 In 2004, Holcim hired Welch as a production supervisor for its cement manufacturing plant in Trident, Montana. Production supervisors work twelve-hour rotating shifts, alternately working the day shift and the night shift. Welch was a competent employee, though he found the position stressful because he was responsible for making decisions that affected the safety of other employees.

¶3 In April 2008, Welch went to the emergency room for chest pains. Welch was treated by a cardiologist, Dr. Mehrle, who diagnosed him with angina, a heart condition. Dr. Mehrle advised him not to return to work. Welch contacted Val Aughney, Holcim's human resources administrator for the Trident facility, and explained his condition. Aughney advised Welch to contact Holcim's claims administrator, CIGNA Group Insurance.

¶4 CIGNA administered Welch's claim for short-term disability benefits. Catherine Novak, a claims administrator with CIGNA, sent a letter approving Welch's claim for short-term disability benefits for the period of April 4, 2008, to May, 1, 2008, and informing Welch of his obligation to provide certain necessary medical information to ensure his continued eligibility for benefits. The short-term disability plan entitled Welch to 180 days of disability benefits that could be revoked if he was terminated, returned to work, or was no longer considered totally disabled.

¶5 Several Holcim employees believed that Welch overstated the severity of his condition by representing that he had a "leaking valve, " a "hole" in his heart, and that he was "being seen in Billings by somebody for angioplasty" even though he did not undergo angioplasty. Welch denied that he overstated his condition and said that he told Novak that his stress caused him chest pain and a "valve leak." Welch also told Novak that he did not have other employment, despite that he worked part-time for Headwaters Livestock while receiving disability payments.

¶6 Holcim began inquiring whether Welch's treating physicians would release him to perform a temporary light-duty job that Holcim created to accommodate Welch's restrictions until he could return to his former position. Anticipating that Welch would continue to work while he was recovering, Holcim prepared the light-duty dayshift job for Welch involving tasks normally divided among numerous Holcim employees.

¶7 After the initial approval of the short-term benefits, CIGNA struggled in communicating with Welch's doctors. When Welch's doctors did provide CIGNA with information about Welch, Welch's cardiologist and his psychologist provided what CIGNA believed to be inconsistent information regarding Welch's restrictions and return to work status. Dr. Mehrle initially estimated that Welch could return to work by July 15, 2008, with no heavy exertion or night shifts. Dr. Mehrle later told Novak that while Welch was "released for light duty, sedentary work, and day shifts, " he "should not return to his former job." Dr. Murphey, Welch's psychologist, communicated to CIGNA on June 12, 2008, that Welch could return to work if the position was part-time, "did not have supervisory responsibilities, " and did not involve "demands from supervisors." Dr. Murphey then wrote a letter on June 18, 2008, stating that Welch should not return to work even with restrictions.

¶8 CIGNA also had difficulty contacting Welch to obtain the additional medical information required for continued approval of his short-term disability benefits claim. Welch admitted to failing to respond to phone calls from Holcim. By mid-June, CIGNA still remained unclear regarding Welch's medical condition and whether he could return to work.

ΒΆ9 During this time, Welch communicated to Dr. Murphey that he felt "burned out, " that he was "stressed out" by his position as production supervisor, that he was "struggling with feelings of guilt about deciding not to go back to work, " and that he was considering "taking over his father-in-law's business." Welch was "increasingly clear that ...

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