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Perryman v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 14, 1993

MONTE PERRYMAN Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BLUE RANGE MINING COMPANY Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         The trial in this matter was held on September 10, 1993 in Great Falls, Montana. Petitioner, Monte Perryman, was present and represented by Torger S. Oaas. Respondent, State Compensation Insurance Fund, was represented by Charles G. Adams. Monte Perryman, Susan Amicucci and Betty Cross were sworn and testified. No depositions were submitted as evidence. Exhibit Nos. 1 through 3 and 5 through 16 were admitted into evidence by stipulation of the parties. Exhibit No. 4 was objected to and was not received into evidence.

         Having considered the pretrial order, the testimony presented at trial, the demeanor of the witnesses, and the exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. Petitioner was 30 years old at the time of trial and living in Lewistown, Montana. He has a 10th grade education, and has attended a technology school for automotive diagnostics.

         2. Petitioner was injured on September 18, 1990, in the course and scope of his employment with Blue Range Mining Company in Fergus County, Montana, when a rock fell and struck him in the back. Petitioner suffered a herniated disc and has undergone back surgery.

         3. Petitioner's workers' compensation claim was accepted as compensable by the respondent, State Compensation Insurance Fund (State Fund). The present dispute between petitioner and respondent is over petitioner's entitlement, if any, to wage supplement benefits.

         4. At the time of his injury, petitioner was working at an hourly rate of $12.00 per hour.

         5. Petitioner's wages for the four pay periods immediately preceding his injury were as follows:

Pay period ending

Hours

Amount

8/04/90

80

$960.00

8/18/90

78.5

942.00

9/01/90

58

696.00

9/15/90

46

552.00

(Ex. No. 10.)

         6. The above earnings averaged $393.75 per week ($3, 150.00 divided by eight weeks).

         7. Petitioner's earnings from the time he began employment at Blue Range Mining on April 26, 1990 through September 30, 1990, totaled $8, 767.00. (Ex. Nos. 7 and 8.)

         8. Petitioner's average weekly wage for the time period of April 26, 1990 to September 30, 1990 was $388.61 ($8, 767.00 divided by 22 4/7 weeks).

         9.Petitioner testified at the time of the trial that the reason he did not always work 40 hour weeks at Blue Range Mining was due to equipment failures and financial difficulties with the mining project.

         10. Crawford and Company of Billings was designated the rehabilitation provider in this case. It prepared a Final Status III Employability Assessment Report which identified Option C under section 39-71-1012, MCA, as the most appropriate rehabilitation option for petitioner. The report identified the position of equipment operator as typically available within the claimant's local and/or state job pool. Dr. Snider, who performed the back surgery on the petitioner, approved a job analysis for a typical heavy equipment operator.

         11. The Employment Relations Division of the Department of Labor and Industry issued a Final Order of Determination on April 13, 1993. The Order determined that a "return to related occupation suited to the petitioner's education and marketable skills," as outlined in the Panel Report, was the appropriate rehabilitation option for petitioner. Neither party appealed the Order and both parties agreed at trial that the Department's determinations that heavy equipment operator is within petitioner's post-injury labor market, and that he is capable of returning to work as a heavy equipment operator, are binding.

         12. Petitioner's post-injury employment included approximately three months work as a heavy equipment operator for Sanburn Construction in Lewistown at $10.00 per hour; a period of time from the end of October "until winter set in" working for Williams Brothers Construction in Lewistown at $15.00 per hour;[1] approximately one and one-half months work as a skidder operator for Maverick Logging for "a couple hundred bucks here, a 100 bucks there"; and approximately three months work as a greenskeeper at $4.50 per hour. He is presently working as a truck driver for Casino Creek Concrete at $8.00 per hour. (Petitioner testified that his wage at Casino Creek was $7.00 per hour, yet his ...


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