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Burtell v. State Compensation Insurnace Fund3/18/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: Claimant's temporary total disability (TTD) benefits were terminated in 1994. For the next five years she did not seek medical care and worked part time only for a few weeks with little or no effort to seek other work. In May 2000 her low-back symptoms increased and she again sought medical care. Surgery on her back was thereafter performed. She now seeks TTD benefits retroactive to 1994.
Held: While surgery was appropriate in 2000, it was not appropriate in 1994. In 1994 there was no treatment prescribed for her that would have improved her condition or which she was willing to undertake, therefore she had reached maximum medical improvement (MMI) at that time. Since she had also been medically and vocationally approved for return to work in a number of jobs, she was no longer entitled to TTD benefits. She became re-entitled to TTD benefits in May 2000, when her condition worsened and she sought out medical care leading to surgery. She is therefore due TTD benefits only since May 2000.
Topics:
Maximum Medical Improvement: Failure to Follow Physician's Recommendations. Where claimant fails to follow through with the only treatment which might materially improve her condition, she has reached MMI.
Maximum Medical Improvement: When Reached. Maximum medical improvement is reached where further treatment would not materially improve claimant's condition, or claimant refuses or fails to follow through with treatment which might improve her condition.
Maximum Medical Improvement: When Reached. The fact that claimant's condition may later deteriorate and require treatment which will improve her condition does not negate the fact that she was MMI prior to the deterioration of her condition. MMI means only that she would not benefit from further treatment at the time of the MMI determination.
Maximum Medical Improvement: When Reached. A claimant who has reached MMI may return to non-MMI status where her condition deteriorates to the point that further treatment would materially benefit her condition.
Benefits: Temporary Total Benefits. A claimant is no longer entitled to TTD benefits where she has reached MMI, has been medically and vocationally approved to return to several jobs, and her excuses for failing to return to work are unpersuasive.
The trial in this matter was held on February 20, 2002, in Helena, Montana. Petitioner, Jody Dierks Burtell, was present and represented by Mr. John C. Doubek. Respondent, State Compensation Insurance Fund was represented by Ms. Ann E. Clark.
Exhibits: Exhibits 1 through 21 were admitted without objection.
Witness and Depositions: Claimant was the only witness at trial. The depositions of claimant and Dr. M. Brooke Hunter were admitted and considered by the Court.
Issues Presented: The sole issue set forth in the Pretrial Order is:
Whether the Insurer wrongfully denied payment of TTD benefits for the period of May 17, 1994 to September 15, 2000. (Pretrial Order at 2.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witness, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant, Jody Dierks Burtell (claimant), is forty-five years old. She has a GED and two years of pre-nursing courses. Her work experience includes waitressing, day care, and nurse's aide. (Burtell Dep. at 5-6.)
On December 31, 1990, claimant was working for West Mont as a certified nur
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