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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1997 MTWCC 18
STEPHEN A. SEARS
ORDER DENYING SUMMARY JUDGMENT
Summary: Insurer terminated injured worker's temporary total disability benefits with 14-days written notice to his attorney, but not to the Department of Labor and Industry. Claimant argued the termination of benefits was ineffective where (1) the physician who opined he could return to work relied on a job description that was not sufficiently detailed and technically accurate; and/or (2) 14-days notice had not been given to the DOL prior to termination of TTD benefits.
Held: While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles. As for the argument based on lack of notice to the DOL, the governing statute is section 39-71-609, MCA (1995), which allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.
Petitioner, Stephen A. Sears (claimant), injured his back on October 27, 1994, in a work-related accident. His employer's insurer, Travelers Insurance (Travelers), accepted liability for his injury and paid temporary total disability benefits from November 7, 1994 through December 15, 1994, when claimant returned to work. (Letter of Jason G. Dykstra (March 12, 1997); Letter of James G. Hunt (March 14, 1997).)(1) Travelers reinitiated temporary total disability benefits on February 8, 1995, but terminated them once again on August 29, 1995, pursuant to a fourteen-day notice of termination. (Id.)
The claimant seeks reinstatement of temporary total disability retroactive to August 29, 1995, and continuing through June 3, 1996. (Petition for Hearing; Petitioner's Reply to Respondent's Response to Petitioner's Motion for Summary Judgement (Petitioner's Reply) at 4.) He moves for summary judgment on the grounds that the insurer (1) failed to comply with the Coles criteria when terminating benefits in August 1995, and (2) failed to notify the Department of Labor and Industry (Department) of the termination as required by section 39-71-609(1), MCA. The motion has been briefed and is ready for decision.
Claimant's opening brief sets out a list of the facts claimant believes to be uncontested and which, he argues, entitle him to judgment. (Claimant's Brief in Support of Motion for Summary Judgment (Claimant's Brief) at 1-2.) Accompanying his brief is an affidavit of his attorney with numerous documents attached.
In its answer brief, Travelers does not dispute the claimant's facts or the authenticity of the documents; it does not even address them. Under the Court's rules regarding summary judgment motions, "Any party opposing a motion filed under this rule shall include in their opposition a brief statement of genuine issues, setting forth the specific facts which the opposing party asserts establish a genuine issue of material fact precluding summary judgment in favor of the moving party." ARM 24.5.329(3). The rule requires the opposing party to identify any of the facts recited by the moving party which the opposing party disputes. Since Travelers does not deny the facts and documents set out in claimant's brief, and since its own statement of facts does not contradict any of claimant's facts, the claimant's statement of facts is deemed uncontroverted.
Travelers sets out additional facts it believes are uncontroverted and attaches several supporting documents. (Respondent's Response to Petitioner's Motion for Summary Judgment at 2-4 (Respondent's Brief).) Addressing the additional facts, claimant says, "For the purposes of this motion, Sears [claimant] will not dispute any of the facts recited by Respondent and they [sic] court may assume each is true." (Petitioner's Reply at 1.) Travelers' facts should therefore be deemed uncontroverted, as well.
Through correspondence filed with the Court, the parties have also agreed to the specific dates on which compensation was paid to claimant.(2)
Despite the numerous facts conceded by the parties, I nonetheless concluded that the factual underpinnings of the motion should be clarified. Not all of the facts set out in the parties' briefs are relevant to the present motion and not all the relevant facts are set out in the form required by Court rules. To avoid any doubt concerning the facts, I prepared a revised statement of undisputed facts and sent it to counsel asking that they confirm the truth of the facts recited therein or advise me of which facts are in dispute.
As a result of the responses received from counsel, the paragraph concerning claimant's termination of employment has been revised. Further, at respondent's request, a paragraph concerning Dr. Maxwell's discharge of claimant and the insurance adjuster's reliance on that discharge has been added. Deeming the fact irrelevant, claimant agreed that the Court may accept the additional fact as true for purposes of the motion.(3)
The undisputed facts, as restated are as follows:
In ruling on claimant's summary judgment motion, the Court must determine whether the facts, as recited above, entitle claimant to judgment as a matter of law. ARM 24.5.329(2).
Temporary total disability ends when a claimant has reached maximum medical healing or returns to work. Section 39-71-116(28), MCA (1993), provides:
Section 39-71-701, MCA (1993), which governs the payment of temporary total disability benefits, provides that such benefits cease upon the claimant's reaching a status of maximum healing or his release to return to work in the same position or in a modified or alternative position with an equivalent wage:
Ordinarily, the claimant bears the burden of proving his entitlement to benefits. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979). To satisfy that burden he must establish that during the time for which he seeks benefits he suffered a total loss of wages on account of his industrial injury, that he had not reached maximum medical improvement, and that he had not been released to return to his old job or an equivalent job with equal pay. § 39-71-116 (28) and -701, MCA (1993).
Under the plain terms of section 39-71-701(1), MCA, an injured worker is not entitled to temporary total disability benefits after he or she has reached maximum medical healing or has been released to return to his or her time-of-injury job. However, despite the rule prohibiting Courts from inserting additional requirements into a statute, § 1-2-101, MCA; Russette v. Chippewa Cree Housing Authority, 265 Mont. 90, 93-94, 874 P.2d 1217, 1219 (1994), more than a decade ago this Court adopted technical criteria governing termination of temporary total disability benefits. Those criteria have the effect, in some cases, of requiring continued payment of temporary total disability benefits beyond maximum healing or a release to return to work.
The criteria were adopted in Coles v. Seven Eleven Stores, WCC No.2000, decided November 20, 1984, affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and formally embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991); accord Ness v. Anaconda Minerals, 257 Mont. 335, 339-40, 849 P.2d 1021, 1023-24 (1993). There are four criteria, all of which must be met prior to termination of temporary total disability benefits. They are:
Wood at 30, 808 P.2d at 505 (italics in original).
Claimant argues that the Coles criteria were not satisfied in his case because the job description upon which Dr. McLean based his determination that claimant could return to his time-of-injury job was flawed. In support of his argument he provides an affidavit of a vocational consultant swearing that the description was inadequate.
Claimant's argument would require the adoption of a new requirement that a technically accurate job description be provided to the physician releasing claimant to work. I decline the invitation to do so. The Coles criteria are intended to assure that benefits to injured workers are not arbitrarily cut off or reduced. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles. The third Coles criteria requires that the physician base his determination on "his knowledge" of the position. It does not specify how he is to acquire that knowledge, nor does it require employment of a vocational consultant. Moreover, the purpose of the Coles criteria -- to protect the claimant from an arbitrary termination of benefits -- can be satisfied without imposing upon the insurer the heavy burden urged by claimant. Here, the physician was supplied with a job description prepared by the employer for the claimant's position. It was an existing description, not one prepared solely for purposes of determining claimant's entitlement to benefits. That procedure provided sufficient assurance that benefits would not be arbitrarily terminated.
Claimant's first argument is unpersuasive.
As his second ground for summary judgment, claimant argues that the insurer's failure to provide a 14-day notice of termination of benefits to the Department rendered its notice ineffective.
The notice at issue was sent on August 11, 1995. At that time, section 39-71-609, MCA, as amended by the 1995 legislature, provided as follows:
On its face the amended section permits termination of temporary total disability benefits upon the claimant's release to return to work without any prior written notice to either the claimant or the Department.
Claimant argues that the 1993 version of section 39-71-609, MCA, should be applied in this case. That version did not contain the exception set out in subsection (2) of the amended statute.
As a general rule, the law in effect at the time of the injury determines a claimant's entitlement to benefits. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986). However, that rule applies only to substantive provisions, not to provisions governing procedure. Wolfe v. Webb, 251 Mont. 217, 227, 824 P.2d 240, 246 (1992) (citing State Comp. Mut. Ins. Fund v. Sky Country, Inc., 239 Mont. 376, 379, 780 P.2d 1135, 1137 (1989); Weiss v. State, 219 Mont. 447, 449, 712 P.2d 1315, 1316 (1986).) Section 39-71-609, MCA, is procedural. The 1995 version of the section therefore applies. The claimant is not entitled to further benefits based on the insurer's failure to notify the Department of the termination of temporary total disability benefits.
The motion for summary judgment is denied.
DATED in Helena, Montana, this 8th day of April, 1997.
c: Mr. James G. Hunt
1. Mr. Dykstra's letter provides the dates temporary total disability benefits were paid and Mr. Hunt's letter concurs with the dates. Thus, the dates are deemed by the Court to be agreed facts.
2. See paragraph 1 of this order and footnote 1.
3. The proposed fact has been reworded, broken into two paragraphs, and positioned differently than suggested by respondent. The changes are a matter of style and do not change the substance of the paragraph.
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