ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF
LAW OFHEARING EXAMINER AND ENTERING JUDGMENT
above-entitled matter was duly heard by Court-appointed
Hearing Examiner, ROBERT J. CAMPBELL who conducted the
hearing, considered the evidence and prepared and submitted
Findings of Fact and Conclusions of Law and Proposed Judgment
for consideration by the Court.
the Court considered the record in the above- captioned
matter, considered the Findings of Fact and Conclusions of
Law and Proposed Judgment of the Hearing Examiner and does
hereby make and enter the following Order and Judgment.
HEREBY ORDERED the Findings of Fact and Conclusions of Law
and Proposed Judgment of the Hearing Examiner are adopted.
FURTHER ORDERED the Judgment is to be entered as follows:
Court has jurisdiction over this matter pursuant to section
Petitioner's current condition is the result of his
August 9, 1986 industrial injury and he is entitled to the
thoracic outlet syndrome surgery as diagnosed by his treating
physician, Dr. Kobold.
Petitioner is entitled to reinstatement of temporary total
disability benefits for his 1986 injury effective January 5,
1993. The insurer is entitled to a credit for any temporary
total disability benefits it paid petitioner subsequent to
January 4, 1993.
Court cannot determine petitioner's entitlement to
rehabilitation or permanent partial benefits until
petitioner's surgery and his reaching maximum healing.
Petitioner is not entitled to a penalty pursuant to section
Petitioner is entitled to attorney fees and costs pursuant to
section 39-71-612, MCA, in accordance with ARM 24.5.343.
JUDGMENT herein is certified as final for purposes of appeal
pursuant to ARM 24.5.348.
party to this dispute may have 20 days in which to request a
rehearing from this Order Adopting Findings of Fact and
Conclusions of Law and Proposed Judgment of the Hearing
Examiner and Entering Judgment.
OF FACT AND CONCLUSIONS OF LAW AND PROPOSED JUDGMENT
filed a petition to resolve a dispute between himself and the
insurer under Title 39, Chapter 71, Part 29, MCA.
Clerk of Court gave notice to interested parties of (a) the
time, place and nature of the trial; (b) the legal authority
and jurisdiction under which the trial was to be held; (c)
the particular sections of the statutes and rules involved;
and (d) the matters asserted by notifying all parties who
appeared of record to have an interest by mailing to them a
copy of the ORDER SETTING TRIAL AND PRETRIAL CONFERENCE with
a copy of the PETITION FOR TRIAL attached and a copy of the
Clerk's Certificate of Mailing the Order and Petition.
Section 2-4-601, MCA.
conferences were conducted on October 21, 1992 and December
30, 1992, before Clarice V. Beck, Hearing Examiner. The
Pretrial Order was docketed on January 26, 1993. Pertinent
parts of the Pretrial Order are as follows:
Worker's Compensation Court has jurisdiction over this
matter pursuant to Sections 39-71-2901 - 2909, MCA (1985,
1989) and Rules 24.5.101 - 24.5.360 of the Administrative
Rules of Montana.
August 9, 1986, Claimant suffered an industrial accident
arising out of and in the course of his employment with
Employer/Defendant. On September 22, 1989, Claimant suffered
an aggravation of the August 9, 1986 injury. Claimant was
earning $9.57 per hour at the time of the aggravation.
Claimant's treating physicians are Dr. Robert Snider and
Dr. Elmer Kobold.
Defendant has denied Claimant's request for thoracic
American Stores, d/b/a Buttrey Foods, is self-insured in
Montana under Plan I of ...