Allum v. Mont. State Fund

• Decision Date: 28 January 2020
• Docket Number: WCC No. 2019-4705
• Citation: 2020 MTWCC 1
• Parties: ROBERT L. ALLUM Petitioner v. MONTANA STATE FUND Respondent/Insurer.
• Court: Montana Workers Compensation Court

2020 MTWCC 1

ROBERT L. ALLUM Petitioner v. MONTANA STATE FUND Respondent/Insurer.

WCC No. 2019-4705

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: December 17, 2019

January 28, 2020

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Summary: After Petitioner's treating physician determined that Petitioner had reached MMI, Petitioner failed to attend an impairment evaluation because he claimed that the letter from the impairment evaluator's office was illegal notice of the evaluation, because his treating physician did not select the evaluator, and because the evaluator would not allow him to videotape the evaluation. Upon receiving Petitioner's Class 2 impairment rating, which was based on a medical records review, and approved job analyses for jobs that paid more than Petitioner's time-of-injury job, Respondent terminated Petitioner's TTD benefits and paid him his impairment award. Petitioner asserts that he has not reached MMI and that Respondent failed to follow the express terms of the WCA and, therefore, that he is entitled to retroactive and ongoing TTD benefits, additional PPD benefits, and a penalty.

Held: Petitioner is not entitled to retroactive and ongoing TTD benefits, additional PPD benefits, nor a penalty. Petitioner had no legal grounds to skip his impairment evaluation. Because Petitioner reached MMI, was released to return to work, and had a Class 2 impairment but no actual wage loss, the only benefit to which he was entitled was an impairment award. Respondent's termination of Petitioner's TTD benefits and its denial of Petitioner's claim for additional PPD benefits was lawful and reasonable.

¶ 1 The trial in this matter was held on December 16 and 17, 2019, in Helena. Petitioner Robert L. Allum was present and represented himself. Respondent Montana State Fund (State Fund) was represented by Thomas E. Martello and Melissa Quale.

¶ 2 Exhibits:

¶ 2a This Court admitted Exhibits 1, 2, 3, 4, 5, 7, 10, 11, 12, 34, 36, 38, 39, and 42 without objection.

¶ 2b ARM 24.5.318(3)(b)(E) and (F), state that, before the pretrial conference, the parties are to make their objections to the other party's exhibits and set forth the grounds for their objections on the exhibit list. Allum did not set forth any objections to State Fund's exhibits before the pretrial conference. However, because Allum is a self-represented litigant, this Court allowed him to make objections at the pretrial conference. Allum objected to Exhibits 6, 8, 9, and 13 through 30 on two grounds. First, Allum asserted that the exhibits were inadmissible because they did not contain "live signatures." Second, Allum asserted that under § 2-4-612(5), MCA, the exhibits could not be admitted unless State Fund called the author to testify. This Court overruled Allum's objections, ruling that there is no requirement for a document to contain a "live signature" before it is admitted and ruling that § 2-4-612(5), MCA, does not state that a party offering the document must call the author; rather, it states that the opposing party has the right to cross examine the author, which it can exercise by calling the author to testify. Because Allum did not set forth any other objection to these exhibits, this Court admitted them. While Allum asserts in Petitioner's Trial Brief that this Court did not allow him to challenge the authenticity of the exhibits at trial, and that the exhibits were inadmissible hearsay, he did not make those objections at the pretrial conference, thereby waiving those objections.¹ Moreover, he did not call the authors to testify to challenge the authenticity.

¶ 2c This Court admitted Exhibits 35, 37, and 41 over State Fund's relevancy objections.

¶ 3 Witnesses: Kimberly Dwyer; Brandi L. Taylor, MS, CRC; and Allum were sworn and testified at trial.

¶ 4 Issues Presented: The Pretrial Order sets forth the following issues:

¶ 4a Issue One: Whether Petitioner is entitled to further temporary total disability (TTD) benefits and if so for what time period.¶ 4b Issue Two: Whether Petitioner is entitled to further permanent partial disability (PPD) benefits, including impairment benefits, and if so for what time period.

¶ 4c Issue Three: Whether Petitioner is entitled to a penalty pursuant to § 39-71-2907, MCA.

PRELIMINARY MATTER

¶ 5 Allum has asserted that this Court has violated his due process rights and his statutory rights under § 2-4-612(5), MCA, which states:

A party shall have the right to conduct cross-examinations required for a full and true disclosure of facts, including the right to cross-examine the author of any document prepared by or on behalf of or for the use of the agency and offered in evidence.

¶ 6 Prior to trial, Allum relied on this statute to argue that State Fund could not lay the foundation of any document unless the author testified at trial. In this Court's Order Denying Petitioner's Motion in Limine,² this Court ruled that State Fund did not necessarily need to have the author of an exhibit to authenticate it because this Court follows the Montana Rules of Evidence and M.R.Evid. 803(6) allows records kept in the regular course of business to be authenticated by the custodian or other qualified witness. This Court also ruled that State Fund did not need the authors to authenticate medical records under ARM 24.5.317.

¶ 7 In Petitioner's Trial Brief and at the trial, Allum argued that this Court was violating his right to cross examine the authors of the documents under § 2-4-612(5), MCA, by not requiring State Fund to call the authors as witnesses and by denying his motion to compel Wilbert B. Pino, MD, to testify at trial, which he made at trial. However, Allum's argument is without merit. Section 2-4-612(5), MCA, does not state that the party offering a document has the duty to call the author; it merely states that the opposing party has the right to cross examine the author. With the sole exception of one of State Fund's attorneys,³ Allum had the right to cross examine the author of every document admitted into evidence and could have exercised his right by calling the authors to testify at trial. If the authors of any of the documents would not voluntarily appear at trial, Allum couldhave subpoenaed them.⁴ Because Allum is a self-represented litigant, this Court told him before trial that he had the duty to call the authors to testify at trial. However, Allum did not call any of the authors to testify. In short, Allum did not exercise his right.

FINDINGS OF FACT

¶ 8 The following facts are established by a preponderance of the evidence.

¶ 9 On May 1, 2000, Allum began working for Tatata, Inc., which does business as "Blinds and More." Allum's wife operated this business. Allum sold, installed, repaired, and cleaned window blinds. The job required frequent lifting over 50 pounds.

¶ 10 On November 18, 2013, Allum injured his right knee while working. At the time, Allum was 63 years old and receiving social security retirement benefits.

¶ 11 State Fund accepted liability for Allum's injury.

¶ 12 For the four months before his injury, Allum made a salary of $690 per month. His hours varied, but he averaged 40 hours per week. Allum occasionally worked on a job for a governmental entity and was paid the prevailing wage.

¶ 13 On December 13, 2013, State Fund began paying temporary partial disability benefits and temporary total disability (TTD) benefits, depending on whether Allum was working.

¶ 14 Despite treatment from 2013 to 2015, including a surgery to repair his torn meniscus, Allum's right knee pain did not improve.

¶ 15 On June 4, 2015, Allum saw Martin K. Gelbke, MD, at Bridger Orthopedic and Sports Medicine (Bridger Orthopedic). Dr. Gelbke is an orthopedic surgeon who specializes in joint replacements. Other physicians had told Allum that a total knee replacement was an option and Allum wanted to proceed. But, at that time, Dr. Gelbke did not think Allum was a candidate for a total knee replacement.

¶ 16 In the fall of 2015, Allum was unable to return to his time-of-injury job. On October 2, 2015, State Fund began paying Allum TTD benefits.

¶ 17 Allum returned to Bridger Orthopedic on June 30, 2016. Dr. Gelbke advised Allum of the potential problems with a total knee replacement:

He is really wanting to proceed with a knee replacement. I am very skeptical still about proceeding with a knee replacement as he clearly is not bone-on-bone arthritic. I am worried that if we were to move forward with a knee replacement that he will end up with a knee replacement that he is not happy with. We talked about this exhaustively.

¶ 18 On September 29, 2016, Allum returned to Dr. Gelbke and again requested a total knee replacement. Dr. Gelbke again informed Allum that there was a 15% to 20% patient dissatisfaction rate with total knee replacements. Nevertheless, Allum decided to proceed.

¶ 19 In October 2016, Allum suffered a stroke.

¶ 20 Allum returned to Dr. Gelbke on February 8, 2017. Allum had been cleared by neurology for a total knee replacement and wanted to proceed. Dr. Gelbke again warned Allum that he could be dissatisfied with a total knee replacement. Dr. Gelbke's record states, in relevant part:

Again, we reviewed the fact that in the orthopedic literature, there is a 15% to 20% patient dissatisfaction rate regarding total knee replacement. Furthermore, if not totally bone on bone [t]here is a higher chance he will be dissatisfied with a knee replacement. His MRI demonstrated lateral wear. [D]espite many, many conversations with Mr. Allum, he still wants to move forward with his knee replacement. Informed consent has previously been obtained. We will reschedule him, but I will require repeat clearance.

¶ 21 Dr. Gelbke performed the total knee replacement surgery on April 25, 2017. Royce Pyette, MD, assisted Dr. Gelbke.

¶ 22 Dr. Gelbke anticipated that Allum would be at maximum medical improvement (MMI) between 12 and 18 months after the surgery.

¶ 23 In December 2017, Allum fell on his right knee, which caused pain and...