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Clark v. Arch Insurance Co.

Court of Workers Compensation of Montana

October 18, 2018

TIM CLARK Appellee/Claimant
v.
ARCH INSURANCE COMPANY Appellant/Insurer.

          Submitted: October 5, 2018

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

          DAVID M. SANDLER JUDGE.

         Summary: Appellant appeals from a Department order granting Appellee's petition for interim TTD benefits under § 39-71-610, MCA.

         Held: The Department's order is affirmed. Appellant did not demonstrate that the Department erred in awarding interim benefits, and Appellee presented substantial evidence to establish a prima facie case for interim TTD benefits.

         ¶ 1 Appellant Arch Insurance Company (Arch) appeals an order from the Department of Labor & Industry (Department) granting Appellee/Claimant Tim Clark (Clark) interim temporary total disability (TTD) benefits under § 39-71-610, MCA. Clark 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 Coventry's nurse case manager and Clark, and Clark's medical records.

         ¶ 3 On October 31, 2017, Clark was injured in the course of his employment with Riverside Contracting. During the accident in which Clark rolled a semitrailer, he sustained a blow to his head and lost consciousness.

         ¶ 4 Following the accident, Clark remained employed and worked his assigned shifts. However, Clark experienced numerous near accident situations.

         ¶ 5 On December 6, 2017, Paul Johnson, MD, diagnosed Clark with a mild traumatic brain injury. Dr. Johnson noted that Clark was suffering from increased levels of anxiety, memory loss, attention disorder, headaches, restlessness, and outbursts of anger. Dr. Johnson took Clark off work shortly thereafter.

         ¶ 6 Thereafter, Clark underwent a course of physical therapy and prescription medications.

         ¶ 7 On May 31, 2018, Clark had an appointment with Dr. Johnson. Dr. Johnson noted that Clark "seems to have gotten worse." Dr. Johnson also noted that Clark "feels very unsafe and unsure of himself been having lots of anxiety if he was to make a mistake at work and hurt somebody." Dr. Johnson noted, "Patient's anxiety and anger are of a big concern at this point. His sleep disturbance is affecting his quality of life. Patient has significant anxiety in regards to returning to work and would almost seem like posttraumatic stress disorder." Dr. Johnson filled out a Medical Status Form in which he released Clark to "light duty driving" but stated that Clark could not do "big rig" or "equipment" driving.

         ¶ 8 After this appointment, Dr. Johnson met with Clark, Clark's attorney, and Candi Krezelak, RN, nurse case manager for Arch. Krezelak sent an email in which she summarized what Dr. Johnson said during this meeting. Krezelak reported that Dr. Johnson stated Clark had a traumatic brain injury and was still suffering from high levels of anxiety, depression, anger, headaches, irritability, and memory loss. Krezelak also stated that Dr. Johnson referred Clark for a neuropsychological examination and to a neurologist.

         ¶ 9 At the end of her email, Krezelak included a message from Clark's employer stating that it had a light-duty job for Clark, that being operating a power broom on highway construction. The employer stated it was an "easy job" with no big trucks or big equipment and that Clark would move from project to project.

         ¶ 10 On June 5, 2018, Krezelak sent Dr. Johnson a Job Analysis (JA) for the power broom operator position and asked whether Clark could perform this job. In general, the JA states that the job entails driving a pickup truck pulling a trailer loaded with a power broom, unloading the power broom to sweep the highway of loose gravel, and driving to the next project. On June 26, 2018, Dr. Johnson approved the JA.

         ¶ 11 However, following a June 28, 2018, appointment with Clark, Dr. Johnson filled out a Medical Status Form in which he wrote that Clark was not released to perform "out of town work" and could only work "local" jobs. ...


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