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Blaylock v. National Union Fire Insurance of Pittsburgh

Court of Workers Compensation of Montana

June 1, 1994

WAYNE BLAYLOCK Petitioner
v.
NATIONAL UNION FIRE INSURANCE OF PITTSBURGH Respondent/Insurer for MANVILLE CORPORATION Employer.

         FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter

         The 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. Wills.

         Claimant 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 (1983).

         Having 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 the following:

         FINDINGS OF FACT

         1. Claimant is currently 34 years old. He is married and has three children. He graduated from high school but has no post-highschool education.

         2. 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.

         3. In 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.

         4. On 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.

         5. At 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.

         6. Claimant was initially treated with pain medication and suturing of his wounds.

         7. On 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.

         8. Dr. 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).

         9. Claimant returned to work in late April 1984. In July of1984 he resumed his duties as a core driller.

         10. 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.)

         11. In 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 Mine.

         12. 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 overpaid.

         13. 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 disclosed.

         14. 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 ...


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