OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
trial in this matter was held on November 1, 1993, in
Billings, Montana, the Honorable Mike McCarter, Judge of the
Workers' Compensation Court, presiding. Petitioner, Wayne
Blaylock (claimant), was present and represented by Mr.
Patrick R. Sheehy. Respondent, National Union Fire Insurance
of Pittsburgh (National), was represented by Mr. Kelly M.
testified on his own behalf. Leslie M. Kissler, Kenneth James
Gauthier and John Thompson were sworn and testified. Exhibits
1 through 9 were admitted into evidence by stipulation. No
depositions were offered. The matter at issue in this case is
claimant's entitlement, if any, to permanent partial
disability benefits under sections 39-71-705 to 708, MCA
considered the pretrial order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
exhibits, and the arguments of the parties, the Court makes
Claimant is currently 34 years old. He is married and has
three children. He graduated from high school but has no
After graduation from high school, claimant worked for
approximately a year as a construction and concrete worker;
as a member of a seismograph crew; and as worker on a
"glue crew" making wood laminated beams.
1979 claimant began work at the Stillwater Mine. He began as
a core driller's helper. His duties included breaking
core drilling rods loose and replacing them with empty rods,
loading 50-100 pound sacks of chemicals into agitators, and
removing cores. Claimant rapidly advanced to the position of
core driller. Both jobs involved surface drilling.
October 13, 1983, while working as a core driller,
claimant's left arm and hand were pulled into the
spinning fins of an alternator fan. Claimant was able to
extract his arm and hand by pulling them back through the
alternator fan. He suffered a gash approximately three inches
wide and four inches long extending from his fingers to his
wrist, exposing bones and veins. A less serious gash extended
approximately six inches up his arm from the wrist.
the time of the industrial accident, the operator of the
Stillwater Mine, and claimant's employer, was Manville
Corporation (Manville). Manville was enrolled under
Compensation Plan 2 of the Workers' Compensation Act, and
was insured by National Union Fire Insurance Company of
Pittsburgh. National accepted liability for the claim and has
paid compensation and medical benefits.
Claimant was initially treated with pain medication and
suturing of his wounds.
October 17, 1983, claimant was examined by Dr. Frankel, a
hand specialist, who thereafter treated claimant. On January
16, 1984, Dr. Frankel performed a surgical procedure known as
az-plasty, a scar excision, and a tendon graft on
claimant's wound. Dr. Frankel recommended daily exercises
to increase claimant's wrist flexion. Claimant performed
the exercises, which were painful.
Frankel released claimant to work with no restriction son
April 23, 1984. The doctor performed an impairment evaluation
on July 17, 1984, and assigned claimant a permanent partial
impairment rating of the left upper extremity at 8 percent.
This rating was based on a 5 percent rating for loss of
function/mobility (of about 25 degrees on the left wrist) and
3 percent for "recurrent discomfort about dorsum of
wrist from dorsal capsular scarring." (Ex. 2 at 3).
Claimant returned to work in late April 1984. In July of1984
he resumed his duties as a core driller.
Claimant returned to Dr. Frankel on October 10, 1985, to
determine if anything further could be done about the pain he
was experiencing in his arm, and also to see if his
impairment rating could be increased. In his medical note of
October 10, 1985, Dr. Frankel stated: The patient came in to
see if his impairment rating could be revised. His wrist
still does cause him some discomfort but he is using it in a
reasonably normal manner. His motion is exactly as it was. He
does not have full palmar flexion; he has lost about 20
degrees of full palmar flexion . . . I told him I can see no
legitimate reason for modifying his impairment rating up. If
he feels he does have trouble at any time in the future, I
would be more than happy to check him again. (Ex. 2 at 2.)
1986, when a new company took over operation of the
Stillwater Mine, claimant took an underground mining job as
adiamond driller, a position which is very similar to that of
a coredriller but which is performed underground rather than
on thesurface. Claimant has worked in that position since
then and is the senior diamond driller at the Stillwater
National paid claimant permanent partial disability benefits
of $138.50 per week commencing July 17, 1984 and ending
October 11, 1985. The benefits amounted to 63 and 5/7 weeks,
or$8, 824.48. Claimant asserts that he is entitled to
additional benefits. National claims that he has already been
According to representations made by counsel at the
commencement of trial, an offer of settlement was made by
National prior to trial. The amount of the offer was not
Claimant testified that underground working conditions affect
his wrist and arm. The temperature underground hovers
around60 degrees, although it is colder in areas with more
ventilation. The drill used by claimant uses water ...