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Peone v. Liberty Northwest Insurance2/1/2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Case Summary: Claimant, a certified nurses aid, fell and injured her back in April 1998 but returned to work and continued working until August 1999, when she quit work. She claims that her doctor told her to quit working on account of her back pain and seeks temporary total disability benefits.
Held: Claimant did not prove entitlement to temporary total disability (TTD) benefits. She was not a credible witness. Her story about quitting work was contradicted in numerous aspects. The Court finds that she did not quit work on account of her back condition and that her wage loss is not the result of her injury. Moreover, the medical evidence failed to establish that she had not reached maximum medical improvement at the time she ceased working.
Topics: Benefits: Temporary Total Benefits. Where claimant quit work for reasons unrelated to her industrial injury her wage loss is not the result of her injury and she is not entitled to temporary total disability benefits.
Benefits: Temporary Total Benefits. Where medical opinion that claimant has not reached maximum medical improvement is based on the fact that claimant would benefit from physical therapy, and the claimant has had the opportunity for the therapy but failed to pursue it, the claimant has reached MMI and is not entitled to temporary total disability benefits.
Maximum Medical Improvement. Where medical opinion that claimant has not reached maximum medical improvement is based on the fact that claimant would benefit from physical therapy, and the claimant has had the opportunity for the therapy but failed to pursue it, the claimant has reached MMI and is not entitled to temporary total disability benefits.
The trial in this matter was held on November 27, 2000, in Kalispell, Montana. Petitioner, Joyce Peone (claimant), was present and represented by Ms. Laurie Wallace. Respondent, Liberty Northwest Insurance (Liberty), was represented by Mr. Larry W. Jones. No trial transcript has been prepared.
Exhibits: Exhibits 1 through 11 were admitted without objection.
Witnesses and Depositions: The Court received and has considered the depositions of claimant, Dr. Victor M. Davis, and Gary Schild. Claimant, Connie Fryslie, and Walter Woyden were sworn and testified at trial.
Issues: The issues stated in the pretrial order are:
1 Whether the Petitioner is entitled to temporary total disability benefits from the date she was released from work, August 23, 1999, and continuing until alternative positions can be identified or the Petitioner is released to return to her time-of-injury position.
2. Whether Petitioner is entitled to a 20% increase of award for refusal to pay benefits pursuant to section 39-71-2907, MCA.
3. Whether Petitioner is entitled to reasonable attorney fees and costs pursuant to section 39-71-611, MCA. (pretrial order at 3.)
At trial, counsel for claimant waived oral argument on the penalty issue, but reserved the right to brief that issue should the Court find claimant is entitled to additional temporary total disability (TTD) benefits.
Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant is 40 years old. She has worked as a certified nurses aid since the early 1980s.
In 1996, claimant began working for Mission Mountain Enterprise (Mission Mountain). Mission Mountai
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