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Williams v. Timber

Court of Workers Compensation of Montana

June 28, 1994

DAVID WILLIAMS Petitioner
v.
PLUM CREEK TIMBER Respondent/Insurer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         The 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.

         At the 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.

         Having 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:

         FINDINGS OF FACT

         1.The claimant is 34 years old. He is married and has two children. He graduated from high school.

         2.Claimant 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.

         3.On 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).

         4.On 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.

         5.Claimant 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.

         6.Claimant has reached maximum healing.

         7.Claimant was off work for approximately a month. He returned to his job at Plum Creek on January 6, 1993.

         8.Claimant 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.

         9.Claimant's 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.

         10.Claimant's 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.

         11.Claimant testified as to his belief that he cannot return to work as a sawyer due to his foot injury.

         12.Dr. 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.)

         13.Dr. 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 follows:

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.

         (Ingham Dep. at 7-8.)

Q Okay. But does he have a physical restriction? What we need to show is a medically ...

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