Ingbretson v. Louisiana-Pacific Corp. , 52 State Rptr. 764 ( 1995 )

No. 94-622
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
VERNON L. INGBRETSON,
Claimant and Respondent,
v.
LOUISIANA-PACIFIC CORPORATION,
Respondent, Insurer,
Employer and Appellant.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jerry Schuster, Kelso & Irwin, Coeur d'Alene, Idaho
For Respondent:
Jon L. Heberling, Attorney at Law, Kalispell,
Montana
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Louisiana-Pacific Corporation appeals a judgment of the
Workers' Compensation Court granting Vernon Ingbretson temporary
total disability benefits for an occupational disease sustained
within the course of his employment with Louisiana-Pacific. The
court also awarded Ingbretson costs and attorney fees and a 20
percent penalty. We affirm.
We restate the issues as follows:
1. Did the Workers' Compensation Court abuse its discretion
by deciding issues not raised in the pretrial order?
2. Did the court exceed its jurisdiction by deciding that
Ingbretson was wrongfully discharged from his employment and did it
then err in failing to apply the provisions of Montana's Wrongful
Discharge from Employment Act?
3. Did the court err in finding that Ingbretson was tempo-
rarily totally disabled within the meaning of 55 39-71-116(28) and
-701, MCA?
4. Did the court err in awarding costs and attorney fees to
Ingbretson pursuant to 5 39-71-611 and § 39-72-402(l), MCA?
5. Did the court err in assessing a 20 percent penalty
against Louisiana-Pacific pursuant to § 39-71-2907, MCA?
Vernon Ingbretson was employed as a laborer at Louisiana-
Pacific's lumber mill in Libby, Montana. In 1992, he began
noticing problems with his elbows. In June of 1993, he gave notice
of an occupational disease to Louisiana-Pacific, which initially
denied his claim.
2
Ingbretson continued working for Louisiana-Pacific except
during periodic layoffs when there was not enough work at the mj.11.
In August of 1993, he returned from a layoff to his regular job, or
"bid job," as a forklift operator.
On August 4, 1993, the Employment Relations Division of the
Montana Department of Labor & Industry entered an order determining
that Ingbretson had an occupational disease--bilateral lateral
epicondylitis. In an effort to keep him on the job, Louisiana-
Pacific reassigned Ingbretson to a job as a stacker operator.
On August 13, 1993, Dr. Brus examined Ingbretson. Dr. Brus
approved Ingbretson to work as a stacker operator, based on a
description of the job as "to stand and keep in visual contact with
3 automatic stacking machines and on occasion pushing a button."
The actual work as a stacker operator was more physically
demanding than suggested by the above job description. While on
the stacker, Ingbretson had the task of picking short, rotten, or
broken 2x4's off the machine. He often fell behind, and had to
repeatedly lift the lumber. He was told to ask for help when he
needed it, but often there was no one in view for him to ask.
From August 16 to September 28, 1993, Ingbretson alternated
between the stacker position and a guard shack position. The guard
shack position consisted of giving directions to vehicles entering
the mill. At that time, Louisiana-Pacific did not have a full-time
day shift guard shack worker. When Ingbretson was working the
stacker, a secretary in the office performed the duties of the
guard shack worker in addition to her secretarial duties.
3
Ingbretson worked the guard shack position when the pain in his
elbows made it impossible to perform the stacker job, usually three
days per week. His "bid job" remained forklift operator.
At Louisiana-Pacific's request, Dr. Hvidston examined
Ingbretson on September 2, 1993. Dr. Hvidston disapproved the job
of fork lift operator for Ingbretson. He approved a job of stacker
operator, with the following conditions: "However Vernon relates
help for the heavier lumber is not available and this causes pain.
If he has repetitive lifting I would not approve." Dr. Hvidston
approved a job of security officer without limitation.
On September 27, 1993, Ingbretson worked the stacker. He told
his supervisor that his elbows were sore and asked to be taken off
the stacker, but he was not reassigned during that shift. After
work, Ingbretson took four Tylenol. He could not sleep that night
because of pain in his elbows. Early the next morning, he called
Louisiana-Pacific and told the night security guard that he was not
coming to work because of his sore elbows. However, he changed his
mind and decided to go to work.
At work, Ingbretson told his supervisor that his elbows were
sore and that he had no sleep the night before. He was instructed
to work at the guard shack. After about two hours, Ingbretson went
to his truck, about twelve feet from the gate. He took four more
Tylenol and drank a cup of coffee. He sat in the passenger seat of
his truck, tilted the seat back, and fell asleep. Ingbretson's
supervisor discovered him sleeping in his truck and fired him.
The Workers' Compensation Court found that
4
[Ingbretson'sl falling asleep at work was indirectly, if
not directly, attributable to the policies of his
employer. On the day prior, [he1 was forced to continue
working on the stacker despite his pain and his request
that he be relieved. As a result, he had a sleepless
night. The next morning he initially called in sick but
thought better of it. [Louisiana-Pacific] had on prior
occasions pressed him to come to work despite pain and
doctor's appointments so it could avoid reporting lost
employee time due to an accident. The job he reported to
on the morning of his termination was a boring and
insignificant one, indeed a position that was filled only
when [Ingbretsonl was unable to work on the stacker.
The court found that Ingbretson's discharge was a pretext by which
Louisiana-Pacific rid itself of a disabled employee. It determined
that Ingbretson was eligible for temporary total disability
benefits and awarded him costs and attorney fees, plus a 20 percent
penalty for unreasonable refusal to pay his claim
Issue 1
Did the Workers' Compensation Court abuse its discretion by
deciding an issue not raised in the pretrial order?
The issue to which Louisiana-Pacific here refers was the
merits of Ingbretson's discharge, "resulting in a conclusion that
he was wrongfully terminated." Louisiana-Pacific argues it was
entitled to notice that the court was going to determine this
issue.
The pretrial order should be liberally construed to permit any
issues at trial that are "embraced within its language." Nentwig
v. United Industry, Inc. (1992), 256 Mont. 134, 139, 845 P.2d 99,
102. In the pretrial order, Louisiana-Pacific's first contention
was its defense that Ingbretson was discharged for cause. It is
disingenuous for Louisiana-Pacific to now claim surprise that the
5
merits of Ingbretson's discharge were considered by the court.
Because this issue was raised in the pretrial order, we conclude
the court did not abuse its discretion by considering it.
Issue 2
Did the court exceed its jurisdiction by deciding that
Ingbretson was wrongfully discharged from his employment and did it
then err in not applying the provisions of Montana's Wrongful
Discharge from Employment Act?
The Workers' Compensation Court based its decision on 5 39-71-
701(4), MCA. That statute allows an employer to avoid paying
temporary total disability benefits to an injured employee who has
not reached maximum healing by providing a modified or alternative
position for the employee. The statute provides:
If the treating physician releases a worker to return to
the same, a modified, or an alternative position that the
individual is able and qualified to perform with the same
employer at an equivalent or higher wage than the
individual received at the time of injury, the worker is
no longer eligible for temporary total disability
benefits even though the worker has not reached maximum
healing. A worker requalifies for temporary total
disability benefits if the modified or alternative
position is no longer available for anv reason to the
worker and the worker continues to be temporarily totally
disabled, as defined in 39-71-116.
(Emphasis added.)
Louisiana-Pacific argues that the decision of the Workers'
Compensation Court amounts to a determination of wrongful dis-
charge, which was outside the jurisdiction of the court. It also
contends that even if the Workers' Compensation Court had jurisdic-
tion to make such a determination, it erred by failing to apply the
6
standards and procedures set forth in the Wrongful Discharge from
Employment Act, §§ 39-2-901 through -915, MCA.
In interpreting and applying § 39-71-701(4), MCA, the Workers'
Compensation Court concluded:
On its face, subsection (4) requires payment of temporary
total disability benefits to a worker released to perform
a modified or alternative job when the alternative or
modified position is "no longer available" to him. The
Court need not consider whether the "no longer available"
language applies in cases where the worker refuses to
work in a modified or alternative position, or he is
terminated by the employer for deliberate misconduct
which he knows, or should know, will result in his
termination. This is not such a case. Rather, it is a
case where the employer has fired a worker, and thereby
made the position unavailable, because of circumstances
created by the worker's occupational disease. Moreover,
in this case the employer's termination of claimant's
employment was pretextual. Under these circumstances,
the alternative positions previously available to
claimant have become unavailable.
Here, it was not necessary for the court to use the Wrongful
Discharge from Employment Act to make its determination. In
reaching its decision, the court relied upon its interpretation of
the words "no longer available for any reason" in 5 39-71-701(4),
MCA. The similarity of considerations necessary in applying that
statute to those which would be involved in a determination of
whether Ingbretson was wrongfully discharged does not mean that the
two determinations are the same.
We note that the Workers' Compensation Court did not make a
sweeping interpretation of the phrase "no longer available for any
reason." It interpreted the phrase only as applied to the facts of
this case. We conclude that the court did not exceed its jurisdic-
tion in reaching its decision, nor was it required to apply the
provisions of the Wrongful Discharge from Employment Act.
Issue 3
Did the court err in finding that Ingbretson was temporarily
totally disabled within the meaning of §§ 39-71-116(28) and -701,
MCA?
Louisiana-Pacific contends that the overwhelming weight of the
evidence was that Ingbretson was not temporarily totally disabled.
This contention is based upon the doctor's releases to perform a
modified stacker operator job or a security officer job. Louisi-
ana-pacific argues that had Ingbretson not left his assigned
position and fallen asleep, he would still be employed in those
positions.
A two-pronged test is used to prove temporary total disability
under § 39-71-116(28), MCA: that the occupational disease results
in a total loss of wages, and that the claimant has not reached
maximum medical healing. Kramer v. EBI Companies (1994), 265 Mont.
525, 531, 878 P.2d 266, 269. In the present case, it was undisput-
ed that Ingbretson could not return to his "bid job." Louisiana-
Pacific has also conceded that Ingbretson had not reached maximum
medical healing at the time he was discharged, thus meeting the
second prong of the test.
Louisiana-Pacific points out that Ingbretson was released to
perform and did perform the positions of a modified stacker
operator and guard shack security officer until he was discharged.
The issue then became whether this situation was subject to the
8
exception set forth at 5 39-71-701(4), MCA, excusing payment of
temporary total disability benefits. Did the modified alternative
jobs become "no longer available for any reason," pursuant to the
statute?
Louisiana-Pacific particularly criticizes as unsupported by
the evidence the finding that the guard shack job was "a boring and
insignificant one." While not dispositive of the case, this
finding is supported in the evidence. Louisiana-Pacific management
staff testified that the job was not staffed on day shifts when
Ingbretson was not filling it. Ingbretson testified that he did
"nothing" when he was stationed in the guard shack.
The record establishes that, on the day before he fell asleep
at work, Ingbretson asked to be taken off the stacker position, but
the foreman did not do so. The record further establishes that
Ingbretson's previous efforts to take time off work due to his
disability had been thwarted. Louisiana-Pacific worked Ingbretson
beyond his medical restrictions and caused the episode which
triggered this lawsuit.
We conclude that the Workers' Compensation Court did not err
in determining that Ingbretson's job was "no longer available"
under § 39-71-701(4), MCA, and that it did not therefore err in
ruling that he was entitled to temporary total disability benefits.
Issue 4
Did the court err in awarding costs and attorney fees to
Ingbretson pursuant to 5 39-71-611 and § 39-72-402(l), MCA?
9
Our standard of review is whether substantial credible
evidence supports the court's finding that the employer's denial of
benefits was unreasonable. Stordalen v. Ricci's Food Farm (1993),
261 Mont. 256, 258, 862 P.2d 393, 394. Louisiana-Pacific's
argument on this issue is dependent on its argument that Ingbretson
was not entitled to temporary total disability benefits. In light
of our reasoning above in ruling that the court did not err in
finding that Ingbretson was entitled to benefits, we hold that
substantial credible evidence supports the court's conclusion that
the denial of those benefits was unreasonable and Ingbretson was
also entitled to costs and attorney fees.
Issue 5
Did the court err in assessing a 20 percent penalty against
Louisiana-Pacific pursuant to 5 39-71-2907, MCA?
There is no penalty provision in the Occupational Disease Act.
In Wunderlich v. Lumbermens Mut. Cas. Co. (Mont. 1995), 892 P.Zd
563, 52 St.Rep. 251, we concluded that the Workers' Compensation
Court did not have jurisdiction to assess a 5 39-71-2907, MCA,
penalty in a dispute arising under the Occupational Disease Act.
Unlike Wunderlich, this is not an appeal from a final
determination by the Department of Labor. It is a benefits dispute
in which it has already been established that Ingbretson suffered
from an occupational disease.
A key element in the Wunderlich opinion is the following:
In contrast, the Workers' Compensation Court's jurisdic-
tion under the Occupational Disease Act is much more
limited. There, the court reviews on appeal final
determinations by the Department regarding occupational
10
disease claims. Section 39-72-612, MCA. The review is
statutorily circumscribedi.]
Wunderlich, 892 P.2d at 568. Here, the Workers' Compensation Court
has direct jurisdiction which is not circumscribed by 5 39-72-612,
MCA, as was the case in Wunderlich.
The Occupational Disease Act provides that "practice and
procedure prescribed in the Workers' Compensation Act applies to
all proceedings under this chapter." Section 39-72-402(l), MCA.
The penalty statute, 5 39-71-2907, MCA, was not a part of the
original Workers' Compensation Act, and therefore its application
is not limited to cases under the Workers' Compensation Act. In
this instance, we agree with the Workers' Compensation Court that
the "practice and procedure" of penalty imposition applies through
5 39-72-402(l), MCA
We affirm the decision of the Workers' Compensation Court in
its entirety.
We ,concur: