Pugh v. Charter Oak Fire Insurance Company, 2010 MTWCC 1 (MTWC 1/12/2010)

• Decision Date: 12 January 2010
• Docket Number: WCC No. 2008-2075.
• Citation: 2010 MTWCC 1
• Parties: NANCY PUGH, Petitioner, v. CHARTER OAK FIRE INSURANCE COMPANY, Respondent/Insurer.
• Court: Montana Workers Compensation Court

Page 1

2010 MTWCC 1

NANCY PUGH, Petitioner, v. CHARTER OAK FIRE INSURANCE COMPANY, Respondent/Insurer.

WCC No. 2008-2075.

Workers' Compensation Court of Montana.

Submitted: September 2, 2009.

January 12, 2010.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

JAMES JEREMIAH SHEA, JUDGE.

Summary: Petitioner petitioned the Court for a determination of temporary total disability (TTD) benefits due to her. Petitioner argues that she was constructively discharged from her time-of-injury employment and is entitled to TTD benefits pursuant to § 39-71-701(4), MCA. Petitioner contends she is also entitled to TTD benefits for a period of time following her cubital tunnel release surgery.

Held: Petitioner voluntarily resigned her employment and was not constructively discharged. Petitioner failed to meet her burden of proof that she suffered a total loss of wages as a result of her injury after her voluntary resignation.

¶ 1 The trial in this matter was held on September 1, 2009, in Great Falls, Montana, and continued on September 2, 2009, in Helena, Montana. Petitioner Nancy Pugh (Pugh) was present and represented by Richard J. Martin. Respondent Charter Oak Fire Insurance Company (Charter Oak) was represented by G. Andrew Adamek.

¶ 2 Exhibits: Exhibits 1 through 10 were admitted without objection. Exhibit 11 was admitted over Pugh's objection at trial for purposes of impeachment.

¶ 3 Witnesses and Depositions: The depositions of Pugh and Patrick J. Thomas, M.D., were taken and submitted to the Court. Pugh, Brian Lewis McKinney (McKinney), Cynthia Schultz (Schultz), and Mike Lutins (Lutins) were sworn and testified at trial.

¶ 4 Issues Presented: The Pretrial Order states the following contested issues:¹

¶ 4a Whether Pugh is entitled to TTD benefits pursuant to § 39-71-701, MCA, after the cessation of her work at Air Host, Inc. in April 2005.

¶ 4b What periods of time and what amounts of TTD benefits are payable?

FINDINGS OF FACT

¶ 5 I found the trial testimony of the witnesses to be credible.

¶ 6 Pugh was hired as a manager for the Great Falls, Montana, Air Host operation in February 2002.² Prior to working for Air Host, Pugh owned and operated the restaurant Kickers in Great Falls. She also has several years of experience working as a caterer.³

¶ 7 The corporate headquarters of Air Host is located in Memphis, Tennessee.⁴ John Simank (Simank) is the Executive Vice President of Air Host. Simank was Pugh's supervisor during her employment with Air Host. Simank's office is located in Memphis, but he traveled to Great Falls once or twice a year to meet with Pugh.⁵

¶ 8 As a manager for Air Host, Pugh's responsibilities included overseeing the operations of the airport restaurant, gift shop, and catering business. Pugh ordered food for the restaurant and banquet events, kept an inventory, and hired and supervised Air Host employees.⁶

¶ 9 In 2003, the airport in Great Falls underwent an extensive renovation that lasted approximately eight months. The renovation project included parts of the Air Host operation and caused some disruption to Air Host's restaurant and catering services. On August 16, 2003, while in the course and scope of her employment, Pugh tripped over an electrical outlet box that was protruding from the floor during the renovation project work conditions.⁷ Pugh testified that she landed on the floor with her arms outstretched and heard a snapping sound.⁸

¶ 10 Pugh was taken to the emergency room and diagnosed with a fracture of her proximal left humerus. Her shoulder was placed in a sling and she was given a prescription for Vicodin.⁹ Pugh returned to work within two days of her injury. Pugh testified that she needed the assistance of other employees to lift heavy objects, but she could perform all other duties of her employment.¹⁰

¶ 11 As a result of her injury, Pugh was referred to Patrick J. Thomas, M.D., an orthopedic surgeon in Great Falls.¹¹ Dr. Thomas examined Pugh on August 25, 2003. Dr. Thomas' notes reflect that Pugh was not experiencing any numbness, tingling, or neck pain at that time.¹² Dr. Thomas' impression was that Pugh had a minimally displaced left humeral tuberosity fracture.¹³

¶ 12 On March 8, 2004, Pugh reported to Dr. Thomas with symptoms of numbness originating in her left elbow and extending out to her hand.¹⁴ Pugh had been experiencing these symptoms for approximately one to two months prior to this visit.¹⁵ Dr. Thomas diagnosed Pugh with ulnar neuritis in her left elbow and recommended that Pugh seek physical therapy to improve her range of motion and strength in her left shoulder. He also recommended follow-up with W. Lea Gorsuch, M.D., for treatment of Pugh's ulnar nerve symptoms.¹⁶

¶ 13 On April 28, 2004, Dr. Gorsuch examined Pugh. Pugh complained that she was experiencing tingling and pain in her left elbow, hand, and shoulder.¹⁷ Dr. Gorsuch's impression was that Pugh had a probable left peripheral neuropathy and questioned whether there was compression of the ulnar nerve.¹⁸

¶ 14 Pugh packed up her house in Great Falls in October of 2004 and readied it for sale. The house sold in November 2004 and Pugh moved in with her sister. During this time, she sent some of her furniture and restaurant equipment from her house in Great Falls to her daughter's house in Colorado Springs, Colorado. Pugh testified that her daughter paid for the move and hoped Pugh would leave her job at Air Host and move to Colorado Springs because she knew how stressful the job was and how many hours Pugh was working.¹⁹ Pugh sent the proceeds from the house sale to her daughter to invest in a house in Colorado Springs. Pugh testified that she hoped to one day spend part of the year at her house in Florida and part of the year living near her family in Colorado Springs.²⁰

¶ 15 McKinney was hired to be the assistant manager at Air Host in Great Falls in October 2004. Pugh had recommended McKinney for the position because she had previously worked with him when she operated Kickers. McKinney was a sales representative for Food Services of America at that time and Pugh was impressed by McKinney's work ethic.²¹

¶ 16 McKinney initially turned down the assistant manager position because he had concerns about Pugh's management style. However, Pugh informed McKinney that they could work out any problems that may arise. Pugh also told McKinney that the manager position would be his when she moved to Colorado Springs in the spring of 2005.²²

¶ 17 McKinney testified that Pugh did not provide him with job training or clear directives of his responsibilities after he was hired. Their working relationship eventually became strained.²³ Based on his observations of Pugh's mismanagement of Air Host, McKinney eventually called Simank and relayed his concerns.²⁴

¶ 18 In the early part of 2005, Jim Lofino (Lofino), a manager for the Air Host operations in Moline, Illinois, arrived at the Air Host operation in Great Falls. Pugh arrived at work one morning to find Lofino and McKinney in the Air Host office with various files spread across the desk. Lofino spent approximately one month in Great Falls reviewing time cards, payroll records, and other business records. ²⁵

¶ 19 During the latter part of Lofino's visit, Pugh received a letter from Simank. This letter detailed Simank's increasing concern about Pugh's management of Air Host operations in Great Falls. Simank specified certain issues of concern which included, "poor financial performance, continuing severe bookkeeping and accounting problems, discrepancies as to the allocation of banquet tips among employees, and serious food inventory control problems."²⁶ Other areas of concern expressed by Simank included Pugh's extended absences without authorization, contract bookkeeping services Pugh had authorized, and poor personnel practices.²⁷ As a result of Pugh's poor performance review, she was placed on probationary status and told by Simank that "[u]nless we see immediate and sustained improvement in the areas I have mentioned in this letter, further disciplinary action up to and including termination will be taken."²⁸

¶ 20 Pugh and Lofino went to breakfast together after she read Simank's letter. Pugh testified that after her conversation with Lofino, she decided to resign from her employment with Air Host.²⁹ On April 5, 2005, Pugh tendered a letter of resignation to Air Host effective April 6, 2005.³⁰ Pugh then retained attorney Roger T. Witt³¹ to represent her and entered into a termination of employment agreement with Air Host which provided her "a special monetary allowance" of $4500.³²

¶ 21 Following her resignation from Air Host, Pugh did not seek employment in Great Falls, but rather moved to Colorado Springs six weeks after her resignation. Pugh testified that she moved to Colorado Springs to be with her daughter for the birth of her grandchild. Pugh hoped to provide support to her daughter and grandchild during this period of time.³³

¶ 22 While living in Colorado Springs, Pugh worked at a few small catering events. Pugh also applied for employment at several restaurants and grocery stores. Pugh testified that she was unsure if she applied for these jobs before or after her cubital tunnel release surgery that occurred in 2007.³⁴ Pugh did not apply for any office employment because she wanted to be available to help her daughter during the daytime.³⁵ Pugh testified that nothing would have prevented her from seeking employment prior to her April 2007 cubital tunnel release surgery.³⁶

¶ 23 Having reviewed the totality of the circumstances surrounding Pugh's cessation of employment with Air Host, I find as a matter of fact that Pugh voluntarily resigned her position from Air Host in April 2005. I find that Pugh's decision to resign from Air Host was unrelated to her employment conditions. It is apparent to me that Pugh intended to resign from Air Host long before receiving Simank's letter. Specifically, I note the following:

¶ 23a Pugh put...