Cross v. LLP Transport

Insurance Company

Great Falls Insurance

Date Decided

September 3, 2015

Panel Members

Timothy Collier

David Hirtle

Evelyn Knopf


Partial Incapacity Partial Incapacity Pre-Existing Injury


Pre-Existing Neck Truck Driver Medical Improvement Return to Work

File Size

242 KB


Summary from the Troubh Heisler Attorneys

Cross worked as a long-haul truck driver hauling a flatbed trailers. He had a serious, though asymptomatic, pre-existing neck condition. While pulling on a tarp to cover a load he aggravated that condition, leading to neck fusion surgery. He was ultimately released to return to work with a lifting restriction due to his fusion that precluded him from hauling flatbeds, although he could do other truck driving work. Relying on medical evidence that Cross’s post-surgical neck condition was better and stronger than his pre-injury condition, and that if the physician had known about Cross’s pre-existing condition before the injury occurred he would have imposed the same lifting restrictions as he did after the surgery, the hearing officer found that the injury no longer caused any incapacity as of the date Cross was released to work.

Relying upon the 1978 St. Amand case, in which the employee had been awarded closed-ended benefits but given the right to petition for additional benefits if he was unable to find work, the panel ruled that restrictions resulting from an injury coupled with an inability to perform the pre-injury job constitutes incapacity as a matter of law. The hearing officer’s decision was partially vacated and remanded for a determination whether Cross was entitled to partial incapacity benefits after he was released to return to work.

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