Benefits: Termination of Benefits: Coles

MONTANA SUPREME COURT DECISIONS
Wallace v. State Fund [12/8/00] 2000 MT 310 Insurer not required to comply with Coles criteria before terminating TTD benefits of injured worker who, following training in real estate sales, began work as a real estate salesman, received his first commission, and went on to average thirty hours a week in real estate sales while also performing spot jobs for the USDA.
Ness v. Anaconda Minerals Co., 279 Mont. 472, 929 P.2d 205 (1996) (Ness II). Insurer’s termination of temporary total disability benefits was proper on the date by which all four Coles requirements had been satisfied. Where the insurer’s notice of intent to reduce benefits was given before it received and notified claimant of a physician’s report regarding claimant’s ability to return to work, the insurer was not required to issue another notice of intent to terminate benefits; termination was proper on the date claimant agreed he received notice of the doctor’s report.
 
WORKERS' COMPENSATION COURT DECISIONS
Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 To terminate temporary total disability benefits and convert them to permanent partial disability benefits, an insurer must comply with section 39-71-609, MCA (2003), which requires a physician's determination that the claimant has reached maximum medical improvement, specification of his or her physical restrictions, and approval of his or her return to work based on a job analysis prepared by a vocational consultant, and further requires the insurer to furnish the claimant with a copy of the physician's determination. The job analysis requirement is satisfied where the evidence shows that even though the physician did not approve a time-of-injury job analysis in writing, both the physician and the claimant understood that the physician was approving a return to work in the time-of-injury job and the physician had previously reviewed the job analysis and was aware of the job requirements.
Daulton v. MHA Workers' Comp. Trust [8/03/01] 2001 MTWCC 37A The third Coles criteria, even if applicable, requires only that the physician releasing a claimant to work consider her physical condition; it does not require the Court to make a de novo determination, based on claimant's subjective testimony, as to whether she in fact is capable of performing the job.
Daulton v. MHA Workers' Comp. Trust [7/09/01] 2001 MTWCC 37 Even if the Coles' requirements are applicable under 1997 and 1999 law, they are satisfied where the physician (1) finds claimant at MMI, (2) determines her physical restrictions, (3) releases her to return to work in a specific job which was found to be vocationally appropriate, and (4) a copy of the physician's report is furnished to claimant.
Daulton v. MHA Workers' Comp. Trust [7/09/01] 2001 MTWCC 37 The Coles' requirements are inapplicable under 1997 and 1999 law, although the legislature has re-adopted them effective July 1, 2001. [Editor's Note: The effective date of the 2001 Coles' amendment is March 30, 2001, not July 1, 2001.]
Stacks v. Travelers/State Fund [3/1/01] 2001 MTWCC 9Although the insurer conceded it failed to obtain the physician's determination required by Coles following an earlier injury, that insurer was not liable for temporary total disability benefits after claimant returned to work. See Larson v. Cigna Insurance Co., 276 Mont. 283, 294, 915 P.2d 863, 870 (1996).
Sears v. Travelers Ins. [2/24/98] 1998 MTWCC 12 Where claimant does not contend he was in fact still TTD, the Court refuses, on motion for reconsideration, to extend TTD benefits based on alleged non-compliance with one of the criteria of Coles. Claimant had repeated his argument that TTD benefits should have been continued because the insurer failed to provide the physician evaluating his ability to return to work a "technically accurate" job description. WCC adheres to original ruling that technical failure to comply with Coles does not warrant extending TTD benefits where statutory criteria for terminating benefits are met. The statutes governing temporary total disability benefits expressly provide that a claimant is entitled to TTD benefits only until such time as the claimant reaches maximum medical healing. Under section 39-71-609(2), MCA (1995), TTD "benefits may be terminated on the date that the worker has been released to return to work in some capacity." While insurers are well advised to continue following the practices identified in Coles, including providing technically accurate job descriptions to physicians evaluating return to work, extending TTD benefits for non-compliance with Coles criteria irrespective of whether statutory criteria for terminating benefits are met would in effect impose a penalty of sorts on the insurer, without statutory justification.
Sears v. Travelers Ins. [4/8/97] 1997 MTWCC 18 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.
Loss v. Lumbermen's Mutual Casualty Co. [3/15/96] 1996 MTWCC 24 The Court declines to extend the requirements of Coles v. Seven Eleven Stores, WCC No. 2000, adopted by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), to mandate continuing benefits on the argument a doctor's release to return to work without restrictions was allegedly erroneous. The Coles requirements are procedural, not substantive, except for the maximum medical healing determination. Where the MMI determination is not contested, the Court will not retrospectively reexamine the correctness of the physician's opinions upon which the termination of TTD was based.
Ness v. Anaconda Minerals Co. [2/3/95] 1995 MTWCC 10 Based on the holding of Ness v. Anaconda Minerals Co., 257 Mont. 335, 849 P.2d 1021 (1993) (Ness I), claimant is entitled only to extension of temporary total disability benefits through the date the insurer satisfied the fourth element of Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), providing him notice of a physician’s report determining his ability to work. Note: this decision was affirmed by the Montana Supreme Court in Ness v. Anaconda Minerals Co., 279 Mont. 472, 929 P.2d 205 (1996) (Ness II).