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Ferguson v. County: Hill American Stores

Court of Workers Compensation of Montana

December 15, 1993

HAROLD DALE FERGUSON, Petitioner,
v.
County: Hill AMERICAN STORES, d/b/a BUTTREY FOODS, Defendant/Employer.

          ORDER ADOPTING FINDINGS OF FACT AND CONCLUSIONS OF LAW OFHEARING EXAMINER AND ENTERING JUDGMENT

          Mike McCarter Judge

         The 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.

         Thereupon, 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.

         IT IS HEREBY ORDERED the Findings of Fact and Conclusions of Law and Proposed Judgment of the Hearing Examiner are adopted.

         IT IS FURTHER ORDERED the Judgment is to be entered as follows:

         JUDGMENT

         1. This Court has jurisdiction over this matter pursuant to section 39-71-2905, MCA.

         2. 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.

         3. 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.

         4. The Court cannot determine petitioner's entitlement to rehabilitation or permanent partial benefits until petitioner's surgery and his reaching maximum healing.

         5. Petitioner is not entitled to a penalty pursuant to section 39-71-2907, MCA.

         6. Petitioner is entitled to attorney fees and costs pursuant to section 39-71-612, MCA, in accordance with ARM 24.5.343.

         7.The JUDGMENT herein is certified as final for purposes of appeal pursuant to ARM 24.5.348.

         8.Any 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.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW AND PROPOSED JUDGMENT

         1.Petitioner filed a petition to resolve a dispute between himself and the insurer under Title 39, Chapter 71, Part 29, MCA.

         2.The 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.

         3.Pretrial 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:

         STATEMENT OF JURISDICTION

         The 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.

         UNCONTESTED FACTS

         1. On 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.

         2. Claimant's treating physicians are Dr. Robert Snider and Dr. Elmer Kobold.

         3. Defendant has denied Claimant's request for thoracic outlet surgery.

         4. American Stores, d/b/a Buttrey Foods, is self-insured in Montana under Plan I of ...


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