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Davis v. Credit General Insurance Co.1/29/2002
UNPUBLISHED
APPEAL FROM: Montana Workers' Compensation Court The Honorable Mike McCarter, Judge presiding.
Submitted on Briefs: August 16, 2001
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
Phillip Davis (Davis) appeals from the Findings of Fact, Conclusions of Law and Judgment entered by the Workers' Compensation Court (WCC) in his claim against Credit General Insurance Company (Credit General). We affirm.
We address the following issues:
1. Did the WCC err in finding Credit General did not wrongfully terminate Davis' temporary total disability benefits?
2. Did the WCC err in finding that Davis is not permanently totally disabled and not entitled to treatment at a pain clinic?
3. Is Davis entitled to attorney fees and a statutory penalty?BACKGROUND
On August 29, 1995, Davis sustained an injury to his right shoulder after he fell while tightening straps that secured a load he was carrying on his truck. At the time of the accident, Davis was employed by United Staffing, Inc. which was insured for workers' compensation purposes by Credit General. Credit General accepted liability for the accident and immediately began paying Davis temporary total disability and medical benefits. Davis' primary treating physician, Dr. Lawrence Toder (Dr. Toder), diagnosed a torn rotator cuff and operated on Davis' right shoulder in November of 1995.
After the surgery, Davis underwent physical therapy with Richard Smith (Smith) and demonstrated steady improvement in his right shoulder. In April of 1996, Smith concluded Davis was able to return to light-duty work, but Davis did not return to work. In September of 1996, at Credit General's request, Davis saw Dr. Stephen G. Powell (Dr. Powell) for a second opinion. Dr. Powell expressed concern about another possible rotator cuff tear that was hindering Davis' recovery. Dr. Toder concurred and recommended Davis undergo a second surgery. Davis declined.
In December of 1996, Credit General consulted Dr. Powell and ascertained Davis had reached maximum medical improvement because he was unwilling to undergo further surgery. Davis reconsidered surgery and consulted Dr. Toder and Dr. Robert Seim (Dr. Seim), eventually scheduling the second surgery for February of 1997. Davis subsequently cancelled this surgery and did not see Dr. Toder again until shortly before a determination of his disability status in 1999. In March of 1997, the Social Security Administration awarded Davis disability benefits retroactive to April 1996. Smith examined Davis again in June of 1997 and found that his condition had deteriorated, but approved various jobs that were within Davis' capabilities. Dr. Powell reviewed the jobs recommended by Smith and determined Davis was capable of employment.
In August of 1997, Davis moved to Jamestown, North Dakota. In November of that year Credit General sent Davis a 14-day notice of termination of temporary total disability benefits and conversion to permanent partial disability benefits based on Dr. Powell's earlier conclusion that Davis had reached maximum medical improvement.
Davis filed his first petition in the WCC in July of 1998. In August of 1998, Credit General hired a private agency to conduct video s
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