Walters v. Emp'rs Ins. Co.
| Decision Date | 30 July 2020 |
| Docket Number | WCC No. 2020-5018 |
| Citation | 2020 MTWCC 14 |
| Parties | ASHLEY WALTERS Petitioner v. EMPLOYERS INSURANCE COMPANY OF WAUSAU Respondent/Insurer. |
| Court | Montana Workers Compensation Court |
Summary: After Petitioner was injured in the course of her employment, her employer discharged her for being a "no call, no show" for two shifts. The day after her discharge, Petitioner's employer found a Medical Status Form on which her physician stated that she was not released to work on the days on which she was a "no call, no show." Realizing that it had made a mistake, Petitioner's employer contacted her to discuss her returning to work and, the day after that, to notify her that it did not consider her discharged. Petitioner did not respond. Once Petitioner was released to return to modified work, the employer offered her a position within her restrictions, but she refused to return to work on the grounds that she was not an employee. The parties filed cross-motions for summary judgment on the issue of Petitioner's entitlement to TTD benefits under § 39-71-701, MCA. Respondent argues that Petitioner is not entitled to TTD benefits because the employer timely fixed its mistake and thereafter offered her a job that was within her restrictions. Thus, Respondent maintains that the job was available to Petitioner and that her wage loss has been entirely due to her voluntary refusal to return to work. Petitioner argues that she is entitled to TTD benefits because her employment contract was irreparably severed and thus, there has been no work to which she could return.
Held: Petitioner is not entitled to TTD benefits. Because Petitioner's employer timely fixed its mistake and was thereafter willing to employ her in a modified position, the job was available to her. Petitioner offers no good reason for refusing the employer's offer of modified employment. Thus, Petitioner's wage loss has been entirely due to her voluntary refusal to return to work. Neither § 39-71-701(4), MCA, nor the express policies of the Workers' Compensation Act, allow an injured worker to refuse an employer's offer of modified employment without good reason and collect TTD benefits from the insurer.
¶ 1 Respondent Employers Insurance Company of Wausau (Employers) moves for summary judgment on Petitioner Ashley Walters' claim for temporary total disability (TTD) benefits. Employers asserts that after Kismet Big LLC d/b/a Lake View Care Center (Lake View) notified Walters that it discharged her employment based on a mistake and that it did not consider her discharged, Lake View made work available to her that was within her restrictions. Employers argues that Walters is not entitled to TTD benefits under § 39-71-701, MCA, because the only reason she was not working is that she refused to accept the modified position.
¶ 2 Walters cross-moved for summary judgment, asserting the employment relationship was irreparably severed when Lake View discharged her. Thus, she claims that she is not an employee and, therefore, that there has been no work available to her under § 39-71-701(4), MCA. Thus, she asserts that she is entitled to TTD benefits.
¶ 3 Neither party requested a hearing.
¶ 4 For the reasons that follow, this Court grants Employers' Motion for Summary Judgment and denies Walters' Cross-Motion for Summary Judgment.
¶ 5 On October 22, 2019, Walters injured her back in the course of her employment with Lake View.
¶ 6 That day, Walters went to the emergency department at Kalispell Regional Medical Center. Darren Sean Brockie, MD, diagnosed Walters with an upper-back strain, and took her off work for two days.
¶ 7 On October 25, 2019, Walters saw Cameron T. Gardner, MD, who diagnosed her with left-side sciatica based on her work injury. He referred her for physical therapy and restricted her to working four-hour shifts and lifting no more than 10 pounds until November 5, 2019. The same day, Walters provided her Medical Status Form to Lake View.
¶ 8 Thereafter, Walters worked a four-hour shift but doing so left her in significant pain.
¶ 9 On October 28, 2019, Walters followed-up with Dr. Gardner, who took her off work until her reevaluation on November 8, 2019. The same day, Dr. Gardner's office faxed to Lake View a Medical Status Form on which Dr. Gardner checked the "Employee Not Released to Work" box.
¶ 10 However, Lake View misplaced this Medical Status Form.
¶ 11 In accordance with Dr. Gardner's guidance, Walters did not show up for her scheduled shifts on October 30, 2019, and November 4, 2019.
¶ 12 On November 4, 2019, Lake View discharged Walters for missing her shifts without calling. Kathleen Lembrich, RN, Director of Nursing (DON) at Lake View, called Walters and informed her of the discharge.
¶ 13 On the morning of November 5, 2019, Lake View found Walters' Medical Status Form from Dr. Gardner, stating that she was not released to work. Lembrich asked Walters, via text message, to call her "asap" to discuss her employment with Lake View. When Walters questioned what there was to discuss given that her employment had been "decided," Lembrich responded, "No, I'd sure like to discuss it with you." Walters did not respond.
¶ 14 On November 6, 2019, Lembrich sent Walters a text message stating:
¶ 15 Because Walters did not respond to Lembrich's text messages, Laurie Normandy, Administrator of Lake View, sent a letter to Walters on November 6, 2019, which stated that Lake View did not consider her discharged:
¶ 16 On November 8, 2019, one of Walters' medical providers took her off work. Thus, Employers started paying Walters TTD benefits.
¶ 17 By mid-February 2020, Walters had attended physical therapy and undergone electromyography and a nerve conduction study. On February 17, 2020, Justin L. Shobe, PA-C, referred Walters for pain management and pool-based physical therapy. He released her to return to work but restricted her to half days and sedentary duties, with occasional bending, no climbing, and lifting up to 10 pounds until February 28, 2020. Starting on March 2, 2020, he thought Walters could return to full hours though still with sedentary duties and the same lifting restrictions. Shobe's office notified Lake View of Walters' restrictions.
¶ 18 On February 18, 2020, Nathaniel Branch - the claims examiner handling Walters' claim - e-mailed Walters' attorney, stating that Lake View had modified work for her within her restrictions.
¶ 19 On February 19, 2020, Normandy sent Walters a text message, stating that she had put Walters on the schedule starting the following day from 11:00 a.m. to 3:00 p.m., and that this would be her schedule, "this week and next week Monday-Friday."
¶ 20 Walters responded with a text message stating, "that's funny knowing that you already fired me."
¶ 21 Normandy replied with a screen shot of her letter from November 6, 2019, and a text stating, in part, "You are still an employee . . . ."
¶ 22 Also on February 19, 2020, Walters' attorney e-mailed a letter to Branch, stating that Lake View had discharged Walters on November 4, 2019, and that, as a result, she was entitled to TTD benefits under § 39-71-701, MCA.
¶ 23 Branch responded the same day, explaining the mistake that led to Walters' discharge and that she had been reinstated. Thus, Branch stated that Employer's position was that Walters would not be entitled to TTD benefits when Lake View had modified work for her:
It is our position that Ashley is still employed and that the employer has attempted to extend an offer of work of 4 hours a shift within the restrictions. I will be changing the benefits from TTD to TPD starting on Monday, 2/24/2020. Hopefully that will provide Ashley with sufficient time to coordinate her return to work, should she opt to take the job offer.
¶ 24 Walters did not show for her scheduled shift on February 20, 2020, or for her scheduled shifts in the following week.
¶ 25 On February 21, 2020, Walters' attorney e-mailed a letter to Branch, stating that once Lake View discharged Walters, whatever work it had available for her became unavailable and that she was, therefore, entitled to TTD benefits.
¶ 26 Employers stopped paying Walters TTD benefits, asserting that she was not entitled to TTD benefits because Lake View had modified work available.
¶ 27 Walters filed her Petition for Trial on April 30, 2020, seeking TTD benefits, as well as costs, fees, and a penalty.
¶ 28 This case is governed by the 2019 version of the Montana Workers' Compensation Act (WCA) since that was the law...
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