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Wallace v. State Compensation Insurance Fund12/7/1999
Wallace v. State Fund from wallace
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Based upon an industrial injury occurring May 21, 1982, claimant, Carl Wallace, seeks summary judgment awarding him total disability benefits retroactive to July 28, 1987, and 500 weeks of permanent partial disability benefits commencing when he reaches age 65. He further seeks a 20% penalty, attorney's fees, and costs. The motion is denied.
Facts
Claimant's MOTION FOR SUMMARY JUDGMENT sets forth 18 numbered factual allegations, most of which are not disputed by respondent. (See RESPONSE TO PETITIONER'S MOTION FOR SUMMARY JUDGMENT at 2.) The relevant undisputed facts taken from the MOTION FOR SUMMARY JUDGMENT are as follows:
1. Claimant was injured on May 21, 1982, while employed by Professional Farm Systems, which was insured by State Fund. The insurer accepted liability, has paid all medical benefits, and has paid some bi-weekly disability benefits. (Claimant's undisputed facts 1.)
2. Claimant's injury involved a herniated disk which was surgically removed on May 26, 1982. Claimant was evaluated by the Mayo Clinic in 1985 and again in 1993. On both occasions, the diagnosis was early onset arachnoiditis causing fixation of lumbar nerve roots, leading to friction with spine movement and radicular pain. An evaluation by Dr. Ron Peterson in February 1997, confirmed this diagnosis. (Claimant's undisputed facts 1.)
3. Claimant was paid temporary total disability benefits from May 24, 1982, until May 14, 1985. At that time, he attempted to return to his time-of-injury job , and received permanent partial disability benefits from May 15, 1985, until November 4, 1985, when he stopped working due to his injury . Temporary total disability benefits were reinstated on November 5, 1985, and continued until July 28, 1987. (Claimant's undisputed facts 5.)
4. At the request of the State Fund, claimant was examined by Dr. David Friedrick on November 5, 1986. (Claimant's undisputed facts 14.) Dr. Friedrick found claimant to have reached maximum medical improvement and provided a five percent impairment rating. He limited claimant to light work with occasional restrictions on stooping or bending. (Claimant's undisputed facts 15.)
5. Dr. Friedrick was not provided with a specific description of claimant's time- of-injury job . He was not provided with job descriptions for any occupations that may have been included in claimant's normal labor market. Dr. Friedrick was not given information about claimant's work experience, other than being told claimant had been a farmer and a salesman. (Claimant's undisputed facts 16.)
6. On July 28, 1987, claimant's benefits were converted from temporary total to permanent partial because he had obtained his realtor 's license and was an independent contractor under a broker at Bison Realty in Great Falls. (Claimant's undisputed facts 8). The evaluation by Dr. Friedrick on November 5, 1986, was also a basis for the change in benefit rate. (Claimant's undisputed facts 14.)
7. When claimant's benefits were converted on July 28, 1987, he was not given notice that Dr. Friedrick's report had been received by State Fund, nor given a copy of the report attached to a notice. (Claimant's undisputed facts 17.)
8. The termination of temporary total disability benefits and the letter informing claimant of this change in benefits were simultaneous. Claimant did not receive 14- days notice prior to conversion of benefits. Claimant did not receive the medical report until January 15, 1997, when his counsel received a copy of the State Fund claim file. (Cl
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