Submitted: September 11, 2017
ORDER AFFIRMING DEPARTMENT OF LABOR & INDUSTRY'S
ORDER DENYING INTERIM BENEFITS
M. SANDLER Judge.
Appellant appeals from a Department order denying his
petition for interim benefits under § 39-71-610, MCA.
Appellee argues this Court should affirm because Appellant
has not tendered a strong prima facie case for
reinstatement of his TTD benefits.
The Department's order is affirmed. Appellant did not
tender a strong prima facie case for reinstatement
of his TTD benefits. He declined the temporary work
assignment his time-of-injury employer offered to him and did
not introduce sufficient evidence to prove that the job
exceeded his restrictions, or that his employer would not
have actually accommodated his restrictions. His claim that
Appellee would not have paid him TPD benefits is unsupported,
and had that occurred, he could have sought resolution in
this Court instead of declining work.
1 Appellant Galen Larson appeals an order from the Department
of Labor & Industry (Department) denying his request for
interim benefits under § 39-71-610, MCA.
Appellee/Insurer Liberty Northwest Ins. Corp. (Liberty)
argues this Court should affirm.
and Procedural History
2 This Court takes the following facts and procedural history
from correspondence between the parties' attorneys,
correspondence between Liberty's case manager and Larson,
and Larson's medical records.
3 On January 10, 2017, Larson suffered an industrial injury
when he fractured his ankle. Larson's time-of-injury job
was typically in excess of 40 hours per week, and it paid
$12.00 per hour.
4 His treating physician, Justin Jacobson, MD, took him off
5 Liberty accepted liability for Larson's industrial
injury and paid certain benefits, including temporary total
disability (TTD) benefits.
6 Dr. Jacobson performed surgery on Larson's ankle later
in January, but it was unsuccessful. After a follow-up
examination, Dr. Jacobson recommended a fusion surgery, but
required Larson to be tobacco-free for a month before surgery
7 Dr. Jacobson continued to monitor Larson's condition in
the following months, while Larson was unsuccessful in
8 On August 1, 2017, Dr. Jacobson released Larson to return
to work on modified duty. Dr. Jacobson expressed hope that
Larson could achieve tobacco cessation so that a surgeon
could fuse his ankle. He further noted, "I think the
damage is done as far as his ankle is concerned. I think it
is safe to allow him to partial weight bearing to hopefully
allow him to work until his surgery." Dr. Jacobson
restricted Larson to 50% weight bearing, and to wear a
9 On August 2, 2017, Debra Daniels, Senior Case Manager for
Liberty, approved Dr. Jacobson's request for
authorization for surgery.
10 On August 3, 2017, Dr. Jacobson confirmed in a handwritten
note to Larson's attorney that Larson was released to
return to work with restrictions:
He is medically stable / starting at this point until
surgery. Per my last note, he is allowed partial weight
bearing and work within restrictions (with fracture boot).