THOMAS H. MILLS Petitioner
AMERICAN STORES COMPANY Respondent/Insurer/Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
made a motion to amend the pretrial order to request a lump
sum advance. The motion was denied.
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
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.
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.
Claimant was employed by Buttrey at the Great Falls warehouse
for approximately twelve years.
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.
the time of the injury Buttrey was enrolled under Plan I of
the Workers' Compensation Act and was self-insured.
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.)
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).
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.
Buttrey paid claimant temporary total disability benefits
during the time he was attending school and has also paid the
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.
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.
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.
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.
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
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.
Both consultants agreed that teaching jobs for claimant are
generally available in Great Falls and surrounding
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