                                                                                                 08/01/2017


                                           DA 15-0298
                                                                                             Case Number: DA 15-0298

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 185



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARK DUANE SHEEHAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2012-149
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Deborah S. Smith, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Mary E. Cochenour, Assistant Attorney General, Helena, Montana


                                                    Submitted on Briefs: June 7, 2017

                                                               Decided: August 1, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Mark Sheehan received workers’ compensation benefits after suffering a

job-related injury in 2009. In 2012, the State charged Sheehan with felony theft, by

common scheme, for obtaining benefits by means of deception after he allegedly

misrepresented the severity of his injury to medical providers.       At the close of the

evidence, Sheehan moved to dismiss based on insufficient evidence. The District Court

denied the motion. The District Court also rejected Sheehan’s proposed jury instruction

on the termination of benefits under workers’ compensation statutes. The jury found

Sheehan guilty. On appeal, Sheehan contends that there was insufficient evidence to

convict him and that the District Court abused its discretion in rejecting his proposed jury

instruction.

¶2     We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     Sheehan worked as a heavy equipment operator for Riverside Sand and Gravel in

Billings, Montana. He injured his left shoulder on October 1, 2009, when his jacket

sleeve got caught on the controls as he was exiting an excavator. Riverside’s manager,

Kenneth Crouse, submitted a “First Report of Injury Form” the next day to the Montana

State Fund—Riverside’s workers’ compensation insurer. Sheehan returned to his home

in Plains to recover from the injury.

¶4     The State Fund accepted Sheehan’s claim and assigned it to claims examiner

Karen Horne. The State Fund began paying Sheehan temporary total disability (TTD)




                                         2
benefits of $1,252 on a bi-weekly basis on October 7, 2009. The State Fund also paid

medical services benefits related to Sheehan’s injury.

¶5        After returning to Plains, Sheehan went to see Dr. Terry Smith. Dr. Smith initially

diagnosed Sheehan’s injury as a sprained shoulder. After receiving MRI results, Dr.

Smith added a diagnosis of a cervical sprain and a brachial plexus injury. Sheehan saw a

physical therapist, Dr. Stanley Stanhope, from October 2009 to January 2010.             Dr.

Stanhope observed that, throughout the course of therapy, Sheehan demonstrated a

limited range of motion and self-reported acute pain symptoms. Dr. Stanhope noted that

Sheehan’s pain symptoms were “odd,” “bizarre,” and “rare,” given the nature of his

injury.

¶6        In January 2010, Crouse conveyed his suspicions to Horne about Sheehan’s

inability to work and his concerns regarding Sheehan’s motivation to return to work.

Crouse requested that Horne investigate Sheehan’s workers’ compensation claim. Horne

referred an “activity check” to the State Fund’s Special Investigation Unit. The State

Fund contracted with a private investigator to monitor Sheehan and observe his activities.

The private investigator observed Sheehan twice in early February 2010.                  The

investigator did not observe Sheehan engage in any activities that were inconsistent with

his reported injury. Also in early February 2010, Horne contacted Sheehan and told him

that Riverside had a modified duty position available. Sheehan said that he would

attempt to return to work, but he never did.

¶7        Around that same time, Sheehan began seeing Dr. Michael Righetti, an orthopedic

surgeon. Dr. Righetti took a history of Sheehan’s symptoms at his initial visit. Dr.


                                            3
Righetti noted that Sheehan’s case was “difficult . . . because the symptoms that he was

having were confusing.” Based on his evaluation of Sheehan, Dr. Righetti ascertained

that Sheehan’s subjective symptoms did not match the doctor’s objective findings. For

example, Dr. Righetti noted that Sheehan exhibited “give-away weakness,” which he

explained “is usually a sign that somebody is trying to show that they are weak, but they

may not be weak.” Dr. Righetti noted further that Sheehan’s injured arm showed no

evidence of loss of muscle mass, which he stated would be unusual after five months of

alleged non-use since “muscles atrophy considerably” within a week of non-use.

Additionally, Dr. Righetti observed that Sheehan displayed “exaggerated expressions of

pain.”

¶8       Nevertheless, Dr. Righetti believed that Sheehan could have an injury, and he

referred Sheehan for a functional capacity exam. The results of that exam, coupled with

the results of a nerve conduction study, led Dr. Righetti to conclude that Sheehan suffered

from a mild brachial plexus lesion. Dr. Righetti admitted that he “missed the diagnosis

originally.” Dr. Righetti’s letter to Horne following a February 24, 2010 visit with

Sheehan acknowledged that his “original impressions are likely to have been inaccurate

in that this patient is probably not exaggerating his symptoms.” Dr. Righetti set a

treatment plan for Sheehan and followed up with him on April 5, 2010. Dr. Righetti’s

letter to Horne following the April 5 visit confirmed the brachial plexus diagnosis and

clarified that the diagnosis “explains his symptoms and the lingering symptoms.” In that

same letter, Dr. Righetti indicated that Sheehan’s symptoms were not yet under control,

so Dr. Righetti could not determine what Sheehan was “capable of performing.”


                                         4
¶9     Dr. Righetti examined Sheehan again on May 3, 2010, at the request of Horne, to

determine whether Sheehan could return to work as an equipment operator. After seeing

him, Dr. Righetti determined that Sheehan could not return to work at that time. Dr.

Righetti based his opinion on Sheehan’s continued complaints of pain and his

“expression of an inability to do this job.” Dr. Righetti notified Horne of his conclusion,

and she requested an alternative job analysis.

¶10    Sheehan saw Dr. Smith again on May 13, 2010. Sheehan expressed concern to Dr.

Smith that Dr. Righetti was going to release him to work. Sheehan told Dr. Smith that he

had tried operating a mini excavator, but after thirty minutes he was in extreme pain and

could barely move his arm. Dr. Smith noted that Sheehan’s ability to use his left arm had

not improved and that his pain levels were worse than when Dr. Smith initially treated

him. Dr. Smith’s letter to the State Fund following the visit indicated that Sheehan may

“not regain much function of the left arm due to nerve damage.”

¶11    Sheehan saw Dr. Righetti the next day. Dr. Righetti concluded that Sheehan was

at maximum medical improvement—meaning that Sheehan’s injury was not “going to

get much better with the treatment options . . . available” and that his “condition [had]

established a certain degree of stability.” Dr. Righetti determined that Sheehan had a

thirteen percent upper extremity impairment and an eight percent whole body impairment

due to his injury. Dr. Righetti clarified that he based the impairment rating on the

objective findings from the nerve conduction study—not on his physical examinations of

Sheehan—and on Sheehan’s subjective symptoms, which Dr. Righetti explained were

“unsubstantiated by objective findings” and led him to suspect that Sheehan’s symptoms


                                         5
“were not valid.”      Dr. Righetti cleared Sheehan to work with restrictions and

recommended no further treatment on his shoulder. Dr. Righetti noted in a letter to

Horne regarding his May 14 visit with Sheehan that he did “not have any tapes to observe

on [Sheehan] to indicate that his subjective complaints and/or activities outside of the

observed medical arena are greater than one would expect for his complaints of pain.”

¶12    Less than two weeks later, the private investigator took video of Sheehan helping

to construct a family friend’s cabin. The videos showed Sheehan hammering, removing

concrete forms, lifting and carrying multiple pieces of plywood, and operating a skid

steer. While working on the cabin, Sheehan demonstrated a full range of motion in his

left shoulder. The private investigator took another video of Sheehan working at the

same construction site on June 28. The video showed Sheehan starting a pull-start chain

saw with his left arm, using the chain saw to cut logs above his shoulder-height, carrying

a ladder with his left arm, and operating a skid steer.

¶13    When Horne received the May videos, she sent them to Dr. Righetti.           After

reviewing the videos, Dr. Righetti sent a letter to Horne.       Dr. Righetti noted that

Sheehan’s “representation and reported abilities in [Dr. Righetti’s] office are not

consistent with his activities on the video.” Dr. Righetti noted further that the video

demonstrated a number of inconsistencies and misrepresentations Sheehan made

regarding his activity limitations and actual capabilities. The doctor pointed out, for

instance, that Sheehan stated that he could not use equipment because the movement of

his arm caused him extreme pain, but the videos showed him operating a skid steer. Dr.

Righetti stated that he “did not notice pain behaviors as [Sheehan] represented in [his]


                                          6
office” and that Sheehan’s “range of motion appeared almost normal.” Based on his

review of the videos, Dr. Righetti concluded that Sheehan was “misrepresenting his

condition” and that “he would be able to return to work as an excavator operator.”

¶14    After receiving Dr. Righetti’s letter, Horne sent Sheehan a fourteen-day notice that

the State Fund would be discontinuing Sheehan’s TTD benefits. The State Fund closed

Sheehan’s claim on July 8, 2010, and he stopped receiving benefits. In total, the State

Fund paid Sheehan $24,593 in TTD benefits and $22,273 in medical services benefits.

¶15    In May 2012, the State charged Sheehan with theft, by common scheme. The

State alleged that from May 3, 2010, to July 8, 2010, Sheehan “collected approximately

$5,991 in TTD benefits from Montana State Fund while he was misrepresenting his

physical capabilities to medical providers.” Dr. Smith, Dr. Stanhope, and Dr. Righetti—

among others—testified during the four-day jury trial. Before the case went to the jury,

Sheehan orally moved to dismiss based on insufficient evidence. The District Court

denied his motion.     The court also rejected Sheehan’s proposed jury instruction on

§ 39-71-609, MCA (2009), which governs the termination of TTD benefits.1 Although

settlement of jury instructions took place off the record, the District Court allowed

Sheehan’s counsel to state his objection to the rejected instruction on the record.




1
   The workers’ compensation statutes in effect “at the time of an injury govern[ ] the claim.”
Wiard v. Liberty Northwest Ins. Corp., 2003 MT 295, ¶ 21, 318 Mont. 132, 79 P.3d 281.
Similarly, the version of the criminal statute “in effect at the time the crime was committed”
controls throughout the prosecution. State v. Daniels, 2003 MT 30, 314 Mont. 208, 64 P.3d
1045. All references to Montana Code Annotated sections are to the 2009 versions of the
statutes.


                                           7
¶16    The jury convicted Sheehan of felony theft, by common scheme. The District

Court imposed a deferred sentence of six years and ordered Sheehan to pay restitution to

the State Fund in the amount of $5,991.44, plus a ten percent restitution fee. On June 2,

2015, we granted Sheehan leave to file an out-of-time appeal.2

                               STANDARD OF REVIEW

¶17    We review questions on the sufficiency of evidence in a criminal case to

determine whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Spottedbear, 2016 MT 243, ¶ 8, 385 Mont. 68,

380 P.3d 810. We review a jury’s verdict to determine whether sufficient evidence exists

to support the verdict, not whether the evidence could have supported a different result.

Spottedbear, ¶ 8. It is within the province of the jury to weigh the evidence based on the

credibility of the witnesses and determine which version of events should prevail.

Spottedbear, ¶ 8.

¶18    A district court’s statutory interpretation constitutes a conclusion of law, which we

review for correctness. State v. Shively, 2009 MT 252, ¶ 13, 351 Mont. 513, 216 P.3d

732. Similarly, this court reviews for correctness the legal determinations a lower court

makes when giving jury instructions, including whether the instructions, as a whole, fully

and fairly instruct the jury on the applicable law. State v. Lackman, 2017 MT 127, ¶ 8,

336 Mont. 6, 395 P.3d 477. District courts are given broad discretion when instructing a

2
 The District Court revoked Sheehan’s deferred sentence after Sheehan failed to abide by two
conditions of his sentence. Sheehan does not challenge the revocation of his deferred sentence
on appeal.


                                          8
jury; reversible error occurs only if the instructions prejudicially affect a defendant’s

substantial rights. Lackman, ¶ 8. A district court’s decision on jury instructions is

presumed correct, and the appellant has the burden of showing error. Lackman, ¶ 8.

                                      DISCUSSION

¶19 1. Whether the State presented sufficient evidence that Sheehan obtained
unauthorized control over workers’ compensation benefits by means of deception.

¶20   Sheehan contends that there was insufficient evidence to convict him of theft by

common scheme because he was authorized under Montana’s workers’ compensation

statutes to receive TTD benefits until July 8, 2010. He argues that the State could not

show that he obtained unauthorized control over the TTD benefits because the State Fund

was statutorily required to go through certain procedures before terminating his

benefits—procedures the State Fund had not complied with by May 3, the first date he

was charged with receiving unauthorized benefits. Sheehan observes that it is undisputed

that he was entitled to receive TTD benefits prior to May 3. In order to be eligible for

TTD benefits in the first place, Sheehan points out, he had to meet the requirements of

§ 39-71-701, MCA. Once he qualified for TTD benefits, Sheehan contends, he was

authorized to receive those benefits until the State Fund complied with the statutory

requirements for terminating them.

¶21   The Workers Compensation Act requires the State Fund to give an injured worker

fourteen   days’    notice   before    terminating    the   worker’s     TTD     benefits.

Section 39-71-609(1), MCA.       Sheehan posits that § 39-71-609(2), MCA, placed

additional restrictions on terminating his benefits because Dr. Righetti determined, based



                                        9
on objective medical findings, that Sheehan had suffered permanent partial impairment

from his injury.   Therefore, Sheehan contends, his “TTD payments lasted until July 8,

2010, not because of [his] alleged misrepresentations, but because by law the State Fund

could not terminate his benefits until it fully complied with [statutory criteria], and

provided a 14-day notice of benefit termination pursuant to Mont. Code Ann.

§ 39-71-609(1), (2).” Sheehan asserts that his receipt of TTD benefits was authorized up

until the point the State Fund completed these statutory prerequisites. Accordingly,

Sheehan argues that he could not be guilty of theft under § 45-6-301(5)(b), MCA,

because the State could not demonstrate that he obtained unauthorized control over the

TTD benefits he received from May 3 through July 8.

¶22    The theft statute provision under which Sheehan was charged provides, in

pertinent part, that “[a] person commits the offense of theft when the person purposely or

knowingly obtains or exerts . . . unauthorized control over any part of any benefits

provided under Title 39, chapter 71, by means of . . . deception or other fraudulent

action.” Section 45-6-301(5)(b), MCA. We construe § 45-6-301(5)(b), MCA “according

to the plain meaning of its language.” Lackman, ¶ 15 (citation and internal quotations

omitted). In so doing, “[w]e must attempt to give effect to the purpose of the statute and

avoid an absurd result.” State v. Nelson, 2014 MT 135, ¶ 17, 375 Mont. 164, 334 P.3d

345.

¶23    Sheehan stresses that § 45-6-301(5)(b), MCA, includes the Workers’

Compensation Act within its terms—thereby incorporating the Act’s processes of

administering and terminating benefits. Contrary to Sheehan’s arguments, however, the


                                        10
statute’s reference to Title 39, chapter 71, does not mean that administrative requirements

of the workers’ compensation system are included in the elements of § 45-6-301(5)(b),

MCA.      Rather, subsection 5 establishes a separate offense of theft based on the

defendant’s wrongful receipt—or helping another to receive—“benefits provided under

Title 39, chapter 71.”     Section 45-6-301(5)(b), MCA. In other words, the statute’s

reference to Title 39, chapter 71, simply specifies that workers’ compensation benefits

are the subject of the theft.

¶24    The plain language of § 45-6-301(5)(b), MCA, requires the State to prove the

following elements: that the defendant “obtain[ed] or exert[ed] . . . unauthorized control

over any part of any” workers’ compensation benefits; that the defendant did so “by

means of . . . deception or other fraudulent action”; and that the defendant acted

“purposely or knowingly.” Section 45-6-301(5)(b), MCA. The State Fund’s compliance

with statutory requirements for terminating TTD benefits, such as providing the claimant

with fourteen days’ notice, has no bearing on whether a defendant obtained

“unauthorized control” of those benefits by deception or fraudulent action.        Section

45-6-301(5)(b), MCA. The purpose of § 45-6-301(5), MCA, is to deter people from

obtaining workers’ compensation benefits through false statements, deception, or fraud.

If a person purposely or knowingly engages in such conduct, he has committed theft.

¶25    To conclude that a defendant cannot exert unauthorized control over workers’

compensation benefits under § 45-6-301(5)(b), MCA, until the State Fund has completed

the statutory process for terminating those benefits would not give effect to the statute’s

purpose, and it would lead to an absurd result. As Sheehan emphasizes, once the State


                                        11
Fund has awarded TTD benefits, it generally cannot terminate those benefits or convert

them to permanent partial disability benefits until it provides fourteen days’ notice and

fully complies with certain criteria. Section 39-71-609, MCA. Those criteria require

physicians to make the following determinations: “that the claimant has reached medical

stability”; “the claimant’s physical restrictions resulting from the industrial injury”; and

“that the claimant can return to work, with or without restrictions, on the job on which the

claimant was injured or on another job for which the claimant is suited by age, education,

work experience, and physical condition.” Section 39-71-609(2), MCA. Making those

determinations necessarily requires the claimant to be forthcoming with her physician.

¶26    Under Sheehan’s interpretation, a claimant who misrepresents the nature of his

injury to a physician could not be prosecuted under § 45-6-301(5)(b), MCA, as long as

the claimant was “authorized” to receive benefits under the workers’ compensation

statutes. The claimant would be “authorized” to receive workers’ compensation benefits

until the State Fund met the statutory criteria for terminating or converting benefits, based

in part on a physician’s findings. Sheehan’s interpretation of § 45-6-301(5)(b), MCA,

would foreclose prosecution of a person who obtains workers’ compensation benefits by

means of deception or fraud as long as the State Fund had not yet completed the required

termination process, even when the claimant—by deceiving his physician—prevented the

State Fund from knowing that it should terminate his benefits.

¶27    Sheehan’s interpretation of § 45-6-301(5)(b), MCA, is illogical because once the

State Fund complies with the statutory criteria for terminating TTD benefits, the claimant

no longer receives those benefits. If a claimant is not receiving workers’ compensation


                                         12
benefits, the claimant cannot be guilty of “obtain[ing] or exert[ing] unauthorized control

over any part of any benefits provided under Title 39, chapter 71.”               Section

45-6-301(5)(b), MCA.      Sheehan’s interpretation of § 45-6-301(5)(b), MCA, would

effectively nullify the statute because a claimant always would be “authorized” to receive

workers’ compensation benefits up until the point she no longer received workers’

compensation benefits.

¶28    Processes established in the Workers’ Compensation Act are not incorporated into

the elements of § 45-6-301(5)(b), MCA. But the State did have to prove each element of

the theft offense by sufficient evidence beyond a reasonable doubt. The elements of

§ 45-6-301(5)(b), MCA, “are factual in nature and their existence must be determined by

the jury.” Spottedbear, ¶ 23 (citation and internal quotations omitted).

¶29    Sheehan presented evidence that he did not obtain the TTD benefits by means of

deception or fraud from May 3 to July 8. He stressed that Dr. Smith and Dr. Righetti

diagnosed him with a brachial plexus injury and that both doctors acknowledged that his

injury could explain his symptoms. Our inquiry on appeal, however, is “not whether the

evidence could have supported a different result,” but whether “sufficient evidence exists

to support the verdict.” Spottedbear, ¶ 8. Dr. Stanhope and Dr. Righetti both testified as

to their doubts regarding Sheehan’s self-reported pain symptoms.              Dr. Smith

acknowledged that Sheehan’s representations to him did not match the activities in which

Sheehan was engaged in the videos. Those videos, played to the jury, showed Sheehan

seemingly using his arm pain-free to build a friend’s cabin a few weeks after representing

both to Dr. Smith and to Dr. Righetti that his pain was too great to allow his return to


                                         13
work as an equipment operator. The jury weighed the conflicting evidence and

determined that Sheehan had obtained the TTD benefits by means of deception or fraud.

“Such a determination is exclusively within the province of the trier of fact.”

Spottedbear, ¶ 32 (citation and internal quotations omitted).

¶30    We conclude, viewing the evidence in the light most favorable to the prosecution,

that any rational trier of fact could have found beyond a reasonable doubt that Sheehan

obtained the TTD benefits by means of deception or fraud from May 3 to July 8.

Accordingly, the State presented sufficient evidence to convict Sheehan under

§ 45-6-301(5)(b), MCA.

¶31 2. Whether the District Court abused its discretion in rejecting Sheehan’s
proposed jury instruction on the termination of workers’ compensation benefits under
§ 39-71-609, MCA.

¶32    Sheehan again argues that he could not have obtained “unauthorized control” of

the TTD benefits until the State Fund complied with § 39-71-609, MCA. As such, he

contends that the District Court’s rejection of his jury instruction regarding the

termination of workers compensation benefits under § 39-71-609, MCA, “caused the jury

not to be instructed on the law governing termination of workers’ compensation benefits

as it relates to the elements of felony theft.” Moreover, Sheehan asserts, without an

instruction on § 39-71-609, MCA, “the jury could not ascertain whether Mr. Sheehan had

obtained or exerted unauthorized control of his TTD benefits, in violation of Mont. Code

Ann. § 45-6-301(5).”       Accordingly, Sheehan argues, the court’s rejection of his

instruction prejudicially affected his right to a fair trial and the District Court therefore

abused its discretion in rejecting his proposed instruction.


                                          14
¶33   As demonstrated above, whether the State Fund complied with statutory

procedures for terminating Sheehan’s TTD benefits has no bearing on whether Sheehan

obtained unauthorized control over those benefits by means of deception or fraud under

§ 45-6-301(5)(b), MCA. The District Court correctly concluded as much in rejecting

Sheehan’s proposed instruction regarding § 39-71-609, MCA.            The District Court

instructed the jury that in order to convict Sheehan, the State had to prove the following

elements:

      1. That the Defendant obtained or exerted unauthorized control over any
      part of any benefits exceeding $1,500 in value provided under the Worker’s
      Compensation Act;

      AND

      2. That the Defendant acted purposely or knowingly;

      AND

      3. That the Defendant obtained or exerted control by means of deception or
      other fraudulent action.

The court further instructed the jury on the meaning of “obtains or exerts control,”

“deception,” and when a person acts purposely or knowingly. A court fulfills its duty to

instruct the jury on each theory that finds support in the record “by giving instructions

which accurately and correctly state the law applicable in a case.” State v. Kaarma,

2017 MT 24, ¶ 26, 386 Mont. 243, 390 P.3d 609 (citations and internal quotations

omitted). The District Court’s instructions fully and fairly instructed the jury on the

applicable law.




                                        15
¶34    Sheehan has failed to satisfy his burden of demonstrating that the District Court

erred in instructing the jury. Accordingly, we conclude that the District Court did not

abuse its discretion in rejecting Sheehan’s proposed jury instruction on the termination of

workers’ compensation benefits under § 39-71-609, MCA.

                                    CONCLUSION

¶35    We affirm Sheehan’s conviction of theft under § 45-6-301(5)(b), MCA.


                                                 /S/ BETH BAKER


We Concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE


Justice James Jeremiah Shea, concurring.

¶36    I concur fully in the Court’s Opinion. I write separately only to address Sheehan’s

attempt to conflate the circumstances that gave rise to his prosecution for felony theft

with the process by which injured workers legitimately receive TTD benefits, and the

legitimate process by which those benefits may be terminated or converted. In my view,

our rejection of Sheehan’s argument reflects nothing more than a rejection of that

conflation. It thus bears reemphasizing that Sheehan’s criminal liability had nothing to

do with the mandatory statutory process by which his TTD benefits were terminated.

Rather, as the Court correctly emphasizes, it had to do with the manner by which a

rational trier of fact could have found Sheehan obtained those benefits during the period


                                        16
charged—that being, by means of deception or fraud. Absent evidence that Sheehan

purposely or knowingly obtained the benefits by means of deception or fraud, there

would have been no basis for a criminal charge. Opinion, ¶ 24.

¶37   As the Court correctly notes, when an injured worker is awarded TTD benefits,

certain criteria must be met before those benefits may be terminated or converted.

Opinion, ¶ 25. These statutory criteria are intended to ensure that a worker’s TTD

benefits are not terminated or converted without adequate investigation into the worker’s

physical and vocational limitations and his ability to return to work. They are not, as

Sheehan’s defense would suggest, a grant of immunity from criminal liability. As the

Court correctly notes, if we were to accept Sheehan’s interpretation of the statute, it

would lead to an absurd result. Opinion, ¶ 25. I concur.


                                                /S/ JAMES JEREMIAH SHEA




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