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Caekaert v. State Fund11/22/1994
s of "permanent total disability," "permanent partial disability," and "temporary total disability."
Permanent total disability, according to the terms in effect at the time that Caekaert's condition occurred, referred to a worker who had reached maximum healing and was unable to return to work in his job pool. Section 39-71-116(15), MCA (1987). Permanent partial disability referred to a worker who had reached maximum healing but was left with physical restrictions which affected his wages. Section 39-71-116(14), MCA (1987).
The only disability benefits sought in this case are temporary total disability benefits. Those are awarded to a worker who sustains a total loss of wages because he has not yet reached maximum healing. Section 39-71-116(21), MCA (1987). It was Dr. Hansen's undisputed testimony that Caekaert would be temporarily totally disabled for six to eight weeks following each of the procedures that he performed in 1992 and 1993. Whether he was able to work prior to those surgical procedures in spite of median nerve symptomatology, and whether at some time several years earlier he was totally unable to work because of back complaints, is irrelevant. The record established that although Caekaert was unable to return to work as a plumber because of his back injury , he did return to some form of gainful employment prior to the surgeries performed by Dr. Hansen and was subsequently removed from any form of occupation for a short period of time due to further surgery.
We conclude that Caekaert's prior testimony regarding the impact of his back injury on his ability to work as a plumber, and his prior statements regarding his ability to work in spite of ongoing symptoms from carpal tunnel syndrome, are not inconsistent with his claim for temporary total disability benefits while he recovers from the surgical procedures that were performed in 1992 and 1993. Therefore, we conclude that he is not judicially estopped from claiming and receiving temporary total disability benefits in this case.
ISSUE 3
Did the Workers' Compensation Court err when it denied Caekaert's claim for reasonable attorney fees and costs?
Caekaert requested the Workers' Compensation Court to award attorney fees and a statutory penalty under §§ 39-71-611 and -2907, MCA (1987). Section 39-71-611, MCA, provides for attorney fees if the insurer was unreasonable. Likewise, § 39-71-2907, MCA, provides for statutory penalties where the insurer unreasonably delays or refuses to pay compensation. The issue of reasonableness is one for the Workers' Compensation Court to decide, based on all of the evidence. Therefore, this case is remanded to the Workers' Compensation Court for reconsideration of the attorney fee and penalty issues, after taking into consideration this decision, and all of the evidence.
The judgment of the Workers' Compensation Court is reversed and this case is remanded for the limited purpose of considering Caekaert's claim for attorney fees, costs, and the statutory penalty, and the duration of any temporary total disability benefits to which Caekaert is entitled.
JUSTICES GRAY, HUNT, NELSON and WEBER concur.
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