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Wilson v. Ace American Insurance Group6/7/2002
MCA (1997), defines permanent total disability as follows:
(24) "Permanent total disability" means a physical condition resulting from injury as defined in this chapter, after a worker reaches maximum medical healing, in which a worker does not have a reasonable prospect of physically performing regular employment. Regular employment means work on a recurring basis performed for remuneration in a trade, business, profession, or other occupation in this state. Lack of immediate job openings is not a factor to be considered in determining if a worker is permanently totally disabled.
Claimant has reached MMI with respect to her shoulder and neck condition. She has not reached MMI with respect to her low-back condition, therefore, to receive permanent total disability benefits she must prove that her shoulder and neck condition are permanently totally disabling. She has failed to do so. To the contrary, I am persuaded that but for her herniated disk she can return to her prior jobs with Town Pump. Therefore, she is not permanently totally disabled and is not entitled to permanent total disability benefits.
The next question presented for decision is whether claimant's herniated disk was caused or permanently aggravated by claimant's March 1999 injury . As a matter of fact, I have found, by a bare preponderance of evidence, that it was. In light of that finding , and the testimony of Drs. Sorini and Hayward ( s 34 and 45) that claimant's condition will be improved by surgery, I conclude that claimant has not reached maximum medical improvement with respect to her March 1999 industrial accident. Ace is therefore liable for the proposed surgery and for temporary total disability benefits until she recovers from the surgery.
JUDGMENT
Claimant's herniated disk was caused by her March 1999 industrial accident, Since she has not been released to return to work with respect to her herniated disk condition, has not reached MMI with respect to the condition, and is suffering a total wage loss, she is entitled to temporary total disability benefits retroactively to the date they were terminated and until such time as she has surgery and reaches MMI following surgery.
Since the claimant's herniated disk was caused by her March 1999 industrial accident, she is entitled to medical benefits for the treatment of that condition, including the surgery recommended by Dr. Sorini.
The Court retains continuing jurisdiction to determine the actual amount owed claimant in the event the parties disagree on the amount.
Claimant is entitled to her costs and shall file her memorandum of costs in accordance with Court rules.
This JUDGMENT is certified as final for purposes of appeal.
Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 7th day of June, 2002.
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