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Mills v. American Stores Co.

Court of Workers Compensation of Montana

August 1, 1994

THOMAS H. MILLS Petitioner
v.
AMERICAN STORES COMPANY Respondent/Insurer/Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge

         The trial in this matter was held on June 29, 1994, in Great Falls, Montana, the Honorable Mike McCarter, Judge of the Workers' Compensation Court, presiding. Petitioner, Thomas H. Mills (claimant), was present and represented by Mr. D. Patrick McKittrick. Respondent, American Stores Company (Buttrey), was represented by Mr. Thomas A. Marra. Claimant was sworn and testified on his own behalf. William R. Goodrich and Anne Arrington were sworn and testified. Exhibits 1 through 17 and 21 through 23 were admitted into evidence. Exhibits 18 through 20 were objected to by claimant. Those exhibits concern settlement offers and are admissible, if at all, only as to an issue of attorney fees. It is therefore unnecessary to rule on claimant's objections at this time. The objections may be renewed at the time of any hearing on attorney fees. The parties stipulated that the Court could consider the deposition testimony of Thomas H. Mills, William Goodrich and Anne Arrington.

         Claimant made a motion to amend the pretrial order to request a lump sum advance. The motion was denied.

         Having considered the Pre-trial 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 issued a bench ruling finding that pursuant to section 39-71-703, MCA, the claimant is entitled to permanent partial disability benefits of $75.75 weekly for a period of 500 weeks. The Court found that Buttrey did not unreasonably delay or refuse payment of benefits to claimant. It therefore denied claimant's request for a penalty but determined that he is entitled to attorney fees and costs in an amount to be determined at a later date. The following findings of fact, conclusions of law and judgment confirm that bench ruling.

         FINDINGS OF FACT

         1. Claimant is forty-three years old and has lived for a number of years in Great Falls. He is married, and has a seventeen year old son.

         2. Prior to his industrial injury claimant worked as a manual laborer. He worked as a warehouseman at Malmstrom Air Force Base Exchange, a laborer for the Anaconda Copper Company, a laborer for Pepsi-Cola Bottling, a carpenter's helper, and, finally, a warehouseman for Buttrey. He also served in the United States Army.

         3. Claimant was employed by Buttrey at the Great Falls warehouse for approximately twelve years.

         4. On May 19, 1986, claimant injured his back in the course and scope of his employment with Buttrey. At the time he was working as a meat stocker and was stacking a box of meat on a pallet overhead when he felt something "pop" in his back, followed by a sharp pain.

         5. At the time of the injury Buttrey was enrolled under Plan I of the Workers' Compensation Act and was self-insured.

         6. Claimant sought medical treatment and was diagnosed as having lumbosacral strain with sciatica on the right, and a degenerative intervertebral disc at L4. Claimant's doctors advised claimant that he should not return to his time-of- injury job at Buttrey, and recommended that he find another type of occupation which did not involve heavy lifting or excessive bending of the back. (Ex. 3.)

         7. Buttrey accepted liability for claimant's industrial injury and instituted temporary total disability benefits but thereafter terminated those benefits on December 2, 1988. Claimant then commenced an action in this Court seeking total disability benefits and a Holton award. On January 22, 1990, the Court issued a decision determining that claimant was entitled to temporary total disability benefits retroactive to December 6, 1988, along with a Holton award of $3, 362.00. Thomas H. Mills v. Buttrey Foods, WCC No. 8812-5023 (January 22, 1990) (as amended on May 11, 1990).[1]

         8. Claimant pursued a vocational retraining program, enrolling in the College of Great Falls in the fall of 1988. He graduated with a bachelor of science degree (cum laude) in social science in 1993, and has obtained a teaching certificate to teach social sciences in grades 5 through 12.

         9. Buttrey paid claimant temporary total disability benefits during the time he was attending school and has also paid the Holton award.

         10. Following claimant's graduation from college, by letter dated August 11, 1993, Buttrey notified claimant that it was terminating his total disability benefits fourteen days from the date of the letter.

         11. On September 13, 1993, Buttrey notified the claimant that it was initiating permanent partial disability benefits in the amount of $30.86 per week under a full reservation of rights until the Workers' Compensation Court determines claimant's entitlement to permanent partial disability benefits. The basis for the odd rate was not explained and in any event is irrelevant to the Court's determination in this matter. Buttrey has paid the $30.86 per week since August 25, 1993.

         12. The present action was commenced to determine claimant's entitlement, if any, to permanent partial disability benefits. Claimant is unable to return to his job at Buttrey or to other heavy manual laboring jobs.

         13. Since his graduation from college claimant has been actively seeking a teaching position in Great Falls and in surrounding communities. He worked as a substitute teacher during the 1993-94 school year, earning $55.00 per day with the Great Falls School District, $50.00 per day with the Centerville School District and $45.00 per day with the Ulm School District. His total earnings for the school year were $7, 335.00. He is presently seeking a permanent teaching position. Based on claimant's academic record, his appearance, his persistence, and his ambition, the Court believes that claimant will ultimately find employment and lauds claimant for his hard work in obtaining an education so he can find employment.

         14. Claimant has limited his job search to the Great Falls and surrounding areas because Great Falls is his home and his wife has a good job. If he relocated his wife would lose her job.

         15. At trial the Court heard testimony from two vocational consultants. William R. Goodrich testified on behalf of the claimant and Anne Arrington testified on behalf of Buttrey. Both individuals are certified rehabilitation counselors. Both are very qualified in their field.

         16. Both consultants agreed that teaching jobs for claimant are generally available in Great Falls and surrounding communities.

         17. Ms. Arrington identified other non-teaching positions as part of claimant's current labor market. She identified the jobs based on his transferable and marketable skills, which in turn are based on his education. Examples of non-teaching jobs identified by Ms. Arrington are employment service specialist and case worker, social service types of jobs. The ...


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