Nat'l Union Fire Ins. of Pittsburgh v. Rainey

• Citation: 2021 MTWCC 10
• Decision Date: 30 June 2021
• Docket Number: WCC No. 2021-5499
• Parties: NATIONAL UNION FIRE INS. OF PITTSBURGH Appellant v. BENJAMIN RAINEY Appellee.
• Court: Montana Workers Compensation Court

2021 MTWCC 10

NATIONAL UNION FIRE INS. OF PITTSBURGH Appellant v. BENJAMIN RAINEY Appellee.

WCC No. 2021-5499

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: May 12, 2021

June 30, 2021

ORDER AFFIRMING ORDER REINSTATING BENEFITS PENDING A HEARING

(PER 39-71-610, MCA)

Summary: An insurer appeals an order from the DLI awarding interim benefits under § 39-71-610, MCA. The insurer asserts that the claimant's treating physician gave him a full duty release and contends that it had the right to immediately terminate his TTD benefits without complying with § 39-71-609(2)(a)-(d), MCA, which are commonly called the "Coles criteria."

Held: The DLI correctly awarded interim benefits. As one of the insurer's adjusters noted, the full duty release generated by the treating physician's office was most likely a mistake because it could not be reconciled with the claimant's other medical records, which indicate that his physical restrictions preclude him from returning to his time-of-injury job. Moreover, even if the physician intended to release the claimant to work, a general release to work in some unknown job is insufficient grounds for an insurer to terminate TTD benefits under the first sentence of § 39-71-609(2), MCA. Montana law requires an insurer to have a physician approve a job analysis for an actual job that the claimant is physically able, and vocationally qualified, to perform. Finally, the insurer did not have grounds to terminate the claimant's TTD benefits under the first clause of the second sentence of § 39-71-609(2), MCA, because the Medical Status Form purporting to release him to full duty cannot reasonably be construed as the treating physician's determination that he had reached MMI, had fully recovered, and could return to his time-of-injury job.

¶ 1 National Union Fire Ins. of Pittsburgh (National Union) appeals an order from the Department of Labor & Industry (DLI) reinstating Benjamin Rainey's temporary total disability (TTD) benefits under § 39-71-610, MCA.

¶ 2 Under ARM 24.5.314(2), this Court conducted a formal evidentiary hearing via videoconference on May 6, 2021. Rainey was present and was represented by Paul D. Odegaard. National Union was represented by Charlie K. Smith.

¶ 3 This Court admitted National Union's exhibits, which are attached to its Notice of Production of Exhibits for Hearing.¹ This Court admitted Rainey's exhibits, which are attached to his Notice of Production of Exhibits for Hearing.²

¶ 4 Peggy Payne and Rainey were sworn and testified at the evidentiary hearing.

STANDARD OF REVIEW

¶ 5 Section 39-71-610, MCA, states:

If an insurer terminates biweekly compensation benefits and the termination of compensation benefits is disputed by the claimant, the department may, upon written request, order an insurer to pay additional biweekly compensation benefits prior to a hearing before the workers' compensation court or prior to mediation, but the biweekly compensation benefits may not be ordered to be paid under this section for a period exceeding 49 days or for any period subsequent to the date of the hearing or mediation. A party may appeal this order to the workers' compensation court. A proceeding in the workers' compensation court brought pursuant to this section is a new proceeding and is not subject to mediation. If after a hearing before the workers' compensation court it is held that the insurer was not liable for the compensation payments ordered by the department, the insurer has the right to be reimbursed for the payments by the claimant.

¶ 6 On appeal, this Court reviews de novo an order from the DLI regarding benefits under § 39-71-610, MCA.³

¶ 7 At the hearing, this Court questioned whether a justiciable controversy existed, as National Union had informed the DLI that it had agreed to pay Rainey TTD benefits. Because National Union asserts that it has the right to be reimbursed under the last sentence of § 39-71-610, MCA, this Court ruled that a justiciable controversy exists.

FINDINGS OF FACT

¶ 8 This Court finds the following facts by a preponderance of the evidence.

¶ 9 Rainey worked as a laborer on a road paving crew, a heavy-duty job which required him to be on his feet for his entire shift. This job was his sole source of income.

¶ 10 On October 25, 2018, Rainey suffered injuries, including a broken ankle, in the course of his employment.

¶ 11 National Union accepted liability for Rainey's injuries. National Union's third-party administrator, Sedgwick Claims Management Services, Inc. (Sedgwick) adjusted Rainey's claim.

¶ 12 On October 26, 2018, Kyle Lybrand, MD, of Ortho Montana, surgically repaired Rainey's ankle.

¶ 13 Dr. Lybrand restricted Rainey from weightbearing until January 10, 2019, when she advanced his weightbearing to "as tolerated," with a walking boot.

¶ 14 In March 2019, Rainey returned to work in a modified position that did not require constant standing.

¶ 15 Although Rainey continued to suffer from pain and swelling in his ankle, he wanted to return to his time-of-injury job. Thus, on April 22, 2019, Dr. Lybrand released him to return to work with no restrictions. However, she noted, "I explained if this is too much we can back him off to light duty again."

¶ 16 Rainey returned to work but experienced an increase in pain and swelling due to the constant walking.

¶ 17 On June 20, 2019, Rainey returned to Dr. Lybrand. She thought that the internal hardware was causing the pain and swelling and recommended a second surgery to remove it.

¶ 18 On June 24, 2019, Dr. Lybrand surgically removed the hardware.

¶ 19 On July 15, 2019, Dr. Lybrand again released Rainey to return to his time-of-injury job.

¶ 20 However, Rainey's time-of-injury employer would not rehire him. Rainey took a job with another company and travelled to Wisconsin to work a job that required walking on uneven terrain. After a few days, Rainey could no longer work because of intolerable ankle pain.

¶ 21 On August 22, 2019, Rainey returned to Dr. Lybrand, who observed that Rainey's ankle was swollen. Dr. Lybrand also noted tenderness on palpation and weakness. Dr. Lybrand thought that Rainey's pain was caused by posterior tibial tendon dysfunction. Dr. Lybrand prescribed orthotics and physical therapy. Dr. Lybrand restricted Rainey to light duty work.

¶ 22 On October 17, 2019, Rainey returned to Dr. Lybrand. Dr. Lybrand noted that Rainey continued to have pain while walking on uneven ground, inclines, and while climbing, and that such duties were required at his time-of-injury job. Dr. Lybrand told Rainey "that he may always have off and on pain in his ankle with certain activities and it may not be totally normal again . . . [and that] he may need to find a less labor intensive job in the future." She prescribed another course of physical therapy and a walking boot. Dr. Lybrand filled out a Medical Status Form on which she checked the box next to, "Employee released to Full Duty." However, Dr. Lybrand restricted Rainey from climbing, kneeling and squatting, and lifting more than 10 pounds and wrote, "Moderate duty only."

¶ 23 On March 3, 2020, Rainey began treating with Michael R. Yorgason, MD, a foot and ankle specialist, on referral from Dr. Lybrand. Based on physical examinations, which revealed an ankle deformity, additional imaging, and diagnostic injections, Dr. Yorgason eventually diagnosed a partially torn tibial tendon, tendonitis, and ankle dysfunction. Dr. Yorgason thought that Rainey was a surgical candidate, but that Rainey should first try conservative treatments, including steroid injections, physical therapy, and a prescription strength anti-inflammatory.

¶ 24 At Rainey's first appointment with Dr. Yorgason, Dr. Yorgason restricted him to light duty, and from working at heights. Dr. Yorgason reaffirmed these restrictions at subsequent appointments.

¶ 25 In the spring of 2020, National Union retained Bonnie Lyytinen-Hale, MC, CRC, to serve as Rainey's vocational rehabilitation provider, pursuant to § 39-71-1014, MCA. Lyytinen-Hale prepared a job analysis (JA) for Rainey's time-of-injury job, which states, inter alia, that the job was heavy duty and required constant walking on "various outdoor surfaces."

¶ 26 On September 21, 2020, Rainey returned to Dr. Yorgason, still suffering from ankle pain. Dr. Yorgason noted that the conservative treatments had not helped and thought that they were "getting to the point where [we] will probably have to do a reconstruction of his foot." However, because Rainey was hesitant to proceed with another surgery, Dr. Yorgason recommended that Rainey continue with conservative treatments and instructed Rainey to wear an ASO brace daily "[a]s a last step."

¶ 27 On October 26, 2020, Rainey returned to Dr. Yorgason. Because Rainey was still suffering from ankle pain, Dr. Yorgason recommended surgery. However, Rainey reported "so much hell with his fracture [that] he would be very hesitant to have the surgery and start going through another process similar to what he had before."

Dr. Yorgason had Rainey undergo another course of physical therapy and prescribed a different anti-inflammatory.

¶ 28 On December 21, 2020, Rainey returned to Dr. Yorgason. Rainey was still suffering from ankle pain. Dr. Yorgason's medical record states:

Treatment options were reviewed with the patient at today's visit. We discussed continuing conservatively, he has all the tools to continue conservatively including anti-inflammatories, bracing, arch supports, and physical therapy.

We discussed surgical treatment could include a posterior tibial tendon reconstruction and a left ankle arthroscopy. We discussed this has about a 90% chance of improving his pain although it may not completely alleviate all this pain. Following this type of surgery he'll be in a cast and nonweightbearing for 6 weeks followed by a walking boot for a couple of weeks and would likely be 3 months before he is walking well in a tennis shoe.

He is not sure what direction he wants to pursue at this time. This is a

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