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Kapor v. Liberty Mutual Fire Insurance Corporation3/14/2003
PARTIAL SUMMARY JUDGMENT
Claimant is seeking rehabilitation benefits. Liberty Mutual Fire Insurance Corporation (Liberty) has denied her request based on section 39-71-1006(5), MCA (1995), which provides:
(5) To be eligible for [rehabilitation] benefits under this section, a worker is required to begin the rehabilitation plan within 78 weeks of reaching maximum medical healing.
Liberty argues that claimant's present request is time-barred under the section because she reached MMI on August 22, 1997, and the 78-week period has expired. Claimant moves for a partial summary judgment determining that the 78-week limitation does not apply in light of the facts of this case.
The facts set out below are limited to those which are material to disposition of the claimant's motion and which are undisputed by the parties. Many are taken from an exhibit notebook submitted by claimant in support of her motion. Those exhibits are not challenged by Liberty and the Court has looked to them in setting out the facts below. Liberty has also submitted exhibits in connection with its brief and claimant has not objected to them. The Court has therefore relied on them as well in preparing a final statement of facts.
Facts
On February 3, 1997, Marcia Kapor suffered an industrial injury arising out of and in the course of employment with United Parcel Service (UPS) in Yellowstone County, Montana. She injured her neck and upper back when she was unloading boxes off a shelf and several boxes fell striking her in the head and posterior neck.
Ms. Kapors employer, UPS, was enrolled under Compensation Plan 2 of the Workers Compensation Act and its insurer is Liberty.
At the time of her injury, Ms. Kapor held two jobs, the first was at UPS as a delivery person, the second was at CarQuest as a delivery person. The UPS job required that she lift up to seventy pounds.
Ms. Kapor was initially treated at St. Vincent Emergency Room and thereafter by Dr. Bill S. Rosen, a physiatrist at St. Vincent Rehabilitation Center. Dr. Rosen diagnosed "inner scapular thoracic strain with probably associated cervical strain. (Ex. 2 at 85-86.) On August 22, 1997, he declared her at MMI with a 0% impairment rating. (Id. at 86.) He released her to light-duty employment without other restrictions. (Id. at 85-87.)
Upon Dr. Rosen's recommendation, claimant went through a functional capacity evaluation (FCE) on October 13, 1997 (id. at 46-59), which found she was able to work in a medium-heavy capacity. (Id. at 60.) Based on the FCE, Dr. Rosen raised her restrictions to a level consistent with the FCE. (Id. at 43-44.) He approved her return to work at UPS with the proviso that UPS accommodate physical restrictions set out in the FCE. (Ex. 2 at 43.) However, he was pessimistic she would be able to actually preform her UPS job , writing: "Overall, I am not optimistic that Marcia [claimant] will be able to return to successful employment at UPS . . . ." (Id.รท
In November 1997, Liberty designated a rehabilitation provider for claimant. (Ex. 3 at 13.)
Thereafter, on January 24, 1998, Dr. Rosen reviewed a job description for claimant's time-of-injury job and disapproved it. (Id. at 20-22.)
Liberty agrees claimant suffered an actual wage loss under section 39-71-703, MCA (1995). (Liberty's Reply Brief in Opposition to Motion for Partial Summary Judgment at 2.) On February 7, 1998, it notified claimant that it was paying her a 25% permanent partial disability (PPD) award, 20% for wage loss and 5% for a reduction in labor capacity from heavy to light. (Ex. B to Liberty's Reply Brie
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