FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on June 14, 1994 in Kalispell,
Montana, the Honorable Mike McCarter, Judge of the
Workers' Compensation Court, presiding. Petitioner, Mr.
David Williams (claimant) was present and represented by Mr.
David W. Lauridsen. Respondent, Plum Creek Timber Company
(Plum Creek), was represented by Mr. Kelly M. Wills. Claimant
was sworn and testified on his own behalf. Julie Anderson,
Glen Flaget and Lee TenEyck were sworn and testified. The
depositions of David Williams, Julie Anderson and George
Ingham, M.D., were stipulated into the record by the parties
and considered by the Court in reaching its decision. Exhibit
Nos. 1 through 6 were admitted into evidence by stipulation
of the parties.
close of trial, the Court issued a bench ruling finding that
claimant is entitled to permanent partial disability benefits
under section 39-71-703, MCA. However, the Court found that
Plum Creek's denial of benefits was not unreasonable. It
therefore denied claimant's requests for attorney fees
and the penalty.
considered the Pretrial Order, the testimony presented at
trial, the demeanor and credibility of the witnesses, the
depositions and exhibits, and the arguments of the parties,
the Court makes the following:
claimant is 34 years old. He is married and has two children.
He graduated from high school.
was employed for a number of years as a timber-faller or
sawyer and also drove a logging truck for four years. On
November 12, 1992, claimant was hired by Plum Creek to work
at its sawmill. His position was classified as an "extra
board laborer." His primary job was pulling wood slabs
off a conveyor belt.
December 4, 1992, claimant injured his left foot while
working for Plum Creek. He caught his foot in a chain and
sprocket and suffered an amputation of the distal portion of
his fifth toe (small toe) and a comminuted compound fracture
of the great toe (big toe).
December 4, 1992, Plum Creek was self-insured pursuant to
Plan I of the Workers' Compensation Act. Plum Creek
accepted liability for claimant's injury and paid
temporary total disability benefits.
was treated by Dr. G.W. Ingham, an orthopedic surgeon. On
August 2, 1993, Dr. Ingham assigned the claimant an
impairment rating of one percent of the whole man. The rating
was based on the partial amputation of the distal portion of
the fifth toe and a deformity of the great toe.
has reached maximum healing.
was off work for approximately a month. He returned to his
job at Plum Creek on January 6, 1993.
worked at Plum Creek for approximately another month, then
went to work for Montana Mokko, another sawmill. At Montana
Mokko, claimant operated equipment moving logs from the yard
into the sawmill. He worked there for nine months and then
accepted employment with the City of Kalispell as a truck
driver. He is presently operating a street sweeper.
injury to his foot does not interfere with his driving a
truck or as a street sweeper. Although claimant testified
that he quit his job at Plum Creek because he could not stand
on his left foot for ten hours a day, he told his foreman
that he quit to find a better job in Alaska. The Court finds
that claimant's injury did not hinder or interfere with
his work at Plum Creek. However, his foot does ache after
continuous standing for three or four hours.
foot is sensitive to cold as the result of his injury. Cold
causes pain in his foot and toes. He wears two pairs of sock
to keep his foot warm. Hunting bothers his foot since his
foot becomes cold and sore. Claimant's testimony
concerning the effect of cold was credible.
testified as to his belief that he cannot return to work as a
sawyer due to his foot injury.
Ingham released claimant to return to work without
specifically assigning claimant any restrictions, although on
1-28-93 he noted that the claimant "has some residual
soreness over the great toe and 5th toe and hypersensitivity
to cold." (Ex. 6 at 17.)
Ingham testified by deposition. He confirmed that claimant is
affected by the cold and that his complaints of aching after
standing for three to four hours are consistent with his
injury. With regard to medical restriction, he testified as
Q (by Mr. Lauridsen) What restrictions would you place on
him, given the injury that he has got?
A (by Dr. Ingham) We didn't really talk about that too
much. Obviously, I think if you worked in extremely cold
climates for extremely long periods of time that that could
be a restriction, if symptomatic.
Dep. at 7-8.)
Q Okay. But does he have a physical restriction? What we need
to show is a medically ...