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Larson v. Liberty Northwest Ins. Corp.

Court of Workers Compensation of Montana

September 25, 2017

GALEN LARSON Appellant
v.
LIBERTY NORTHWEST INS. CORP. Appellee/Insurer.

          Submitted: September 11, 2017

          ORDER AFFIRMING DEPARTMENT OF LABOR & INDUSTRY'S ORDER DENYING INTERIM BENEFITS

          DAVID M. SANDLER Judge.

         Summary: 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.

         Held: 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.

         Facts 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 work.

         ¶ 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 could occur.

         ¶ 7 Dr. Jacobson continued to monitor Larson's condition in the following months, while Larson was unsuccessful in tobacco cessation.

         ¶ 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 fracture boot.

         ¶ 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). ...

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