BRAND E. CAEKAERT

Petitioner

vs.

STATE COMPENSATION INSURANCE FUND

Respondent/Insurer for

FRANK WILSON PLUMBING AND HEATING

Employer.

Summary: Respondent requests reconsideration of WCC order granting claimant attorney fees and costs following reversal of WCC decision by Supreme Court.

Held: WCC clarifies its earlier decision and rejects request for reconsideration.

On October 12, 1995, the Court granted claimant's request for attorney fees and costs. Respondent has moved for reconsideration.

Respondent first notes that costs had already been paid prior to the Order. It would have been wonderful if the parties had previously apprised the Court of that fact. In any event, if costs have been paid, the matter is moot.

Respondent argues that this Court misapprehended the Supreme Court decision as directing it to award attorney fees. The argument misapprehends the Order. I held only that the Supreme Court decision negated any contention that my original decision, which was reversed on appeal, rendered the insurer's denial of liability per se reasonable. Nowhere in the Order did I indicate any belief that the Supreme Court was directing me to award attorney fees, and I went on to analyze and weigh the evidence before finally deciding to make the award.

Respondent contends that in fact I did not consider all of the evidence. Contrary to that contention, all of the evidence was considered. I merely gave greater weight to information which was available to the insurer up to 11 days prior to trial. I found that information significant as it failed to factually support respondent's reasons for denying further benefits. The medical evidence which I found persuasive in reaching my original decision was evidence from Dr. Hansen's deposition taken 11 days prior to trial.

Respondent argues that the Court's Order contradicts its earlier findings and conclusions. I disagree. The original decision relied heavily on Dr. Hansen's deposition taken 11 days prior to trial. I noted Dr. Hansen's equivocation concerning whether claimant's butchering chickens temporarily or permanently exacerbated his carpal tunnel syndrome (CTS). I resolved that issue in favor of a permanent exacerbation in light of Dr. Hansen's concession made during the deposition that the butchering caused some incremental worsening of claimant's condition, "probably just like throwing grains of sands in a bucket." Finding of Fact 34. While I felt the concession was sufficient to make the matter certain, the Supreme Court did not consider such minimal worsening sufficient to constitute a permanent aggravation within the meaning of the law. The Supreme Court stated that subsequent injury or exposure must "materially or substantially" contribute to claimant's condition for it to constitute a permanent aggravation. Slip Opinion at 9. In any event, what was important to me in awarding the attorney fees was the fact that the insurer did not have Dr. Hansen's key testimony until 11 days prior to trial.

Respondent argues that Shane Beckers v. State Compensation Ins. Fund, WCC No. 9407-7098 (February 8, 1995), is distinguishable because the Workers' Compensation Court decided the case adversely to the insurer in the first place. While that may be true, the fact that the Court in this case initially ruled in favor of the insurer does not per se render the insurer's conduct reasonable.

Respondent argues that the Order shifts the burden of proof to the insurer. That is not what the Order states. The Order merely points out that it should have been obvious to the insurer that the claimant would be able to satisfy his initial burden of proof, thereby shifting the ultimate burden to the insurer.

Respondent argues that the ambiguity found by the Court in Dr. Hansen's records cut both ways. But, as I noted in the original Order, and again in the previous paragraph, it should have been clear that the claimant would carry his initial burden of proof since Dr. Hansen's records plainly established a relationship between the CTS and the first injury, thereby shifting the burden back to the insurer. Thus, the ambiguity was a matter of greater consequence to the insurer, left unresolved, the insurer could not carry its burden.

The respondent argues that the Court was free to reject Dr. Hansen's opinions in whole or in part. But on what basis could the Court have done so since Dr. Hansen was the sole medical witness?

The respondent points out that the Court attributed a medical note of January 7, 1988, to Dr. Frankel whereas the note was one by Dr. Llewallen. I acknowledge the misattribution but the essential point remains unchanged: additional surgery was being considered as of that date.

Respondent quarrels with the Court's finding concerning judicial estoppel, noting that the Court's own comments on the matter indicate the matter was reasonably debatable. But as I stated in my Order, claimant's judicial estoppel argument was on an entirely different ground than the matters which the Court considered as grounds for estoppel. Moreover, the estoppel finding was limited to temporary total disability benefits and did not relieve the respondent of liability for medical benefits.

Respondent asserts that it is "difficult to accept the Court's conclusion that Mr. Caekaert's assertions [concerning the success of his surgery] do not constitute statements of facts." Difficult or not for respondent to understand, I stand by my determination.

Finally, respondent notes that during the pendency of its motion for reconsideration, claimant submitted an itemization of fees. Respondent states its objection to an hourly rate exceeding $75 an hour and to inclusion of hours spent pursuing attorney fees. Since those are the only objections noted, and their resolution does not require an evidentiary hearing, the claimant shall have ten days in which to respond to the objections. At that time, the amount of the attorney fees will be determined.

For the reasons set forth above,

IT IS HEREBY ORDERED that the motion for reconsideration is denied.

IT IS FURTHER ORDERED that the claimant shall have ten days in which to respond to the respondent's objections to the hourly rate and hours on which his attorney fees request is based.

Dated in Helena, Montana, this 21st day of December, 1995.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Patrick G. Frank
Mr. William J. Mattix
Mr. Charles G. Adams (Courtesy Copy)
Submitted: December 20, 1995