McCrary v. Liberty Mut. Fire Ins. Co.
| Decision Date | 02 March 2018 |
| Docket Number | WCC No. 2009-2376 |
| Parties | ROBERT McCRARY Petitioner v. LIBERTY MUTUAL FIRE INSURANCE CO. Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: Petitioner suffered an industrial injury to his low back in 1977. His PTD rate for this injury is $174, which would be payable for his lifetime under the 1977 WCA. Petitioner subsequently worked in a "sheltered" position with his time-of-injury employer and suffered an industrial injury to his knee in 1983. His PTD rate for this injury is $277, which would be payable until his receipt of Social Security retirement under the 1983 WCA. He returned to work, but his time-of-injury employer went out of business in 1996, and he has not worked since. From 1997 to 2009, Petitioner: asserted that the combination of his back and knee injuries rendered him permanently totally disabled; demanded PTD benefits under his 1983 claim at the rate of $277; acknowledged that such benefits would terminate on his receipt of Social Security retirement benefits; obtained PTD benefits at the $277 rate; obtained attorney fees calculated on a percentage of the PTD benefits he received; and then, after a dispute arose over periods in which Respondent had not paid PTD benefits, obtained a judgment from this Court pursuant to which Respondent was legally obligated to pay PTD at the $277 rate and attorney fees calculated on the amount of PTD benefits awarded. Petitioner and Respondent stipulate that Respondent "has not paid any benefit to which [Petitioner] is not entitled." However, Petitioner now argues that his back injury was the "actual cause" of his permanent total disability and, therefore, that Respondent should have paid him PTD benefits under his 1977 claim, and that he is now entitled to PTD benefits under his 1977 claim. Respondent argues that Petitioner is estopped from claiming, and waived his asserted right to, PTD benefits for his 1977 claim.
Held: Petitioner waived his claimed right to PTD benefits under his 1977 claim. Petitioner arguably had the right to PTD benefits under his 1977 claim because he thereafter worked in a sheltered job, which is not to be considered when determining whether a claimant is PTD. However, by his express declarations and his course of conduct, Petitioner intentionally and voluntarily acted inconsistently with his asserted right to PTD benefits under his 1977 claim. And, although the parties have agreed that if Petitioner prevails, Respondent would be entitled to a credit in the amount of what would then be deemed an overpayment of PTD benefits, prejudice to Respondent would result if Petitioner was now allowed to obtain PTD benefits under his 1977 claim because Petitioner has not agreed to reimburse Respondent for the attorney fees calculated on the higher rate, nor to provide any compensation to Respondent for the time-value-of money.
¶ 1 Issues Presented: The parties presented two stipulated issues1 for determination, which the Court restates as follows:
¶ 2 Because this Court's resolution of Issue Two is dispositive of McCrary's entitlement to permanent total disability (PTD) benefits, Issue One is not addressed.
¶ 3 On October 17, 1977, Petitioner Robert McCrary sustained an industrial injury to his back in the course and scope of his employment at Missoula White Pine Sash Company (White Pine). McCrary was working at the trim saw "pulling green chain" when he was hit on the right side of his back with a board. His position was a heavy duty position.
¶ 4 At the time of the 1977 back injury, White Pine was enrolled in Compensation Plan Number II under the Workers' Compensation Act (WCA) and its insurer was Liberty Mutual Fire Insurance Company (Liberty).
¶ 5 Liberty accepted liability for McCrary's October 17, 1977, back injury.
¶ 6 At the time of his October 17, 1977, injury, McCrary earned $7.02 per hour and his temporary total disability (TTD) and PTD rate were $174 per week.
¶ 7 In 1977, Dr. N.S. Green diagnosed a lumbosacral strain after x-rays of McCrary's lumbar spine were taken.
¶ 8 Following the 1977 injury, McCrary returned to work at White Pine. However, as a result of the injury, he was unable to perform his time-of-injury position, and as a consequence suffered actual wage loss and actual loss of earning capacity. Liberty ultimately paid McCrary the maximum permanent partial disability (PPD) award for this injury.
¶ 9 White Pine provided McCrary with a "sheltered" work environment. This employment did not reflect McCrary's ability to hold a job in the normal open labor market at any time after his back injury precluded him from all but sedentary to light-lifting job duties.
¶ 10 McCrary alleges that because of physical limitations caused by his back injury, he was unable to return to his job of injury and had no prospect of finding regular employment of any kind in the normal open labor market.
¶ 11 Since the 1977 back injury, no doctor has released McCrary to return to work at regular employment in the normal open labor market.
¶ 12 Liberty has never identified regular employment of any kind in the normal open labor market which McCrary could perform after his 1977 back injury.
¶ 13 On November 29, 1983, McCrary suffered a work-related injury when he slipped and fell on an icy road and sustained a right patellar fracture. At that time, McCrary worked for White Pine as a night driver.
¶ 14 Liberty accepted liability for the November 29, 1983, right knee injury.
¶ 15 At the time of the 1983 injury, McCrary earned $10.43 per hour. McCrary's 1983 TTD and PTD total rate were $277 per week.
¶ 16 After both the 1977 and 1983 industrial injuries, McCrary continued his employment with White Pine.
¶ 17 At some point in the 1980s, Liberty began adjusting McCrary's claim for his 1977 back injury and his 1983 knee injury out of the same file.
¶ 18 On May 11, 1984, Dr. Sterling noted that there was "no evidence per permanent partial impairment" concerning McCrary's knee.
¶ 19 By 1989, McCrary's patellar fracture had healed.
¶ 20 On November 12, 1996, McCrary's employment with White Pine ended because White Pine ceased operations and terminated all employees. This was McCrary's last day of employment of any kind.
¶ 21 After White Pine ceased operation, McCrary stated in response to discovery requests:
Missoula White Pine Sash terminated its operations in Missoula on or about November 12, 1996. Irrespective of the plant closure, Petitioner had (prior to closure) undertaken treatment for his back and knee condition and could not have continued this work in any event due to his back and knee symptoms and limitations. Petitioner could not have continued to tolerate the standing, walking, lifting, turning and other physical requirements of his job.
Within those discovery responses, McCrary asserted that he considered his back or knee symptoms and limitations a reason for his permanent total disability.
¶ 22 McCrary has borderline intellectual functioning, performing better than 4% of the general population on standardized testing. He also suffers from an anxious adjustment disorder and chronic avoidant personality disorder together with stuttering and speech articulation problems which profoundly interfere with his ability to interact with others.
¶ 23 McCrary is only able to read single words and short phrases. He has difficulty: reading anything involving sentences or paragraphs; performing arithmetic involving fractions, decimals or percentages; following verbal instructions; performing tasks with problem solving; and learning a more complex task. He has a slow work speed; he is slow to learn a new task and is anxious and fearful when confronted with a new task.
¶ 24 McCrary also has difficulty hearing, and difficulty tolerating sitting and standing. He can lift only in the sedentary to light physical demand level with limited endurance and stamina.
¶ 25 On July 22, 1997, McCrary requested that Liberty pay PTD benefits retroactive to November 13, 1996. He alleged that he had not worked since November 12, 1996, and that he was unable to work. Specifically, McCrary's attorney wrote:
¶ 26 On July 28, 1997, McCrary filed a Petition for Hearing3 regarding his October 17,4 1977, back injury and November 29, 1983, right knee injury. McCrary contended: "due to the above described industrial injuries, he became permanently totally disabled as of November 13, 1996." In his prayer for relief, McCrary sought, "[a]n Order stating the nature and extent of Petitioner's disability and entitlement through the time of hearing on this petition," and his attorney fees and costs.
¶ 27 In its Response to the July 28, 1997, Petition for Hearing, Liberty contended that McCrary was not permanently totally disabled as a result of any work-related injuries, and that he was not entitled to any PTD or PPD benefits. Liberty also raised the affirmative defenses of laches and equitable estoppel.
¶ 28 In the fall...
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