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Gjerde v. Employers Insurance of Wausau

Court of Workers Compensation of Montana

December 9, 1994

BRANDON GJERDE Petitioner
v.
EMPLOYERS INSURANCE OF WAUSAU Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Twenty-four year old laborer was injured when 100 pound bag of rice fell and hit him on the shoulder, causing him back and leg pain. Time of injury position was disapproved due to lifting requirements, though other jobs were medically approved. Claimant sought rehabilitation benefits and/or additional permanent partial disability benefits.

         Held: Considering claimant's age, education, training, work history, residual physical capacities, and vocational interests, his desire for two years of rehabilitation benefits to obtain certification in computer programming and business management at a technical college is not a reasonable vocational goal that would significantly enhance his earning potential requiring the insurer to approve his vocational plan, which was not approved by a vocational counselor. Claimant has already had two years of schooling and failed to diligently pursue the career for which he prepared; his motivation and follow-up are questionable. While claimant may be entitled to vocational assistance in finding employment, he has not requested that assistance. He is entitled, however, to additional permanent partial disability benefits under section 39-71-703, MCA (1991). Where the insurer has agreed to a lump-sum advance of permanent partial disability benefits, it is not entitled to discount that advance to present value where no statutory provision authorizes that discount.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-2001, MCA (1991). Considering claimant's age, education, training, work history, residual physical capacities, and vocational interests, his desire for two years of rehabilitation benefits to obtain certification in computer programming and business management at a technical college is not a reasonable vocational goal that would significantly enhance his earning potential requiring the insurer to approve his vocational plan, which was not approved by a vocational counselor. Claimant has already had two years of schooling and failed to diligently pursue the career for which he prepared; his motivation and follow-up are questionable.
Benefits: Rehabilitation Benefits: Retraining. Considering claimant's age, education, training, work history, residual physical capacities, and vocational interests, his desire for two years of rehabilitation benefits to obtain certification in computer programming and business management at a technical college is not a reasonable vocational goal that would significantly enhance his earning potential requiring the insurer to approve his vocational plan, which was not approved by a vocational counselor. Claimant has already had two years of schooling and failed to diligently pursue the career for which he prepared; his motivation and follow-up are questionable.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-703, MCA (1991). Where the insurer has agreed to a lump-sum advance of permanent partial disability benefits under 39-71-703, MCA (1991), it is not entitled to discount that advance to present value where no statutory provision authorizes such discount.
Benefits: Permanent Partial Disability Benefits: Generally. Where the insurer has agreed to a lump-sum advance of permanent partial disability benefits under 39-71-703, MCA (1991), it is not entitled to discount that advance to present value where no statutory provision authorizes such discount.

         This case came to trial in Billings, Montana, on November 16 and 17, 1994. Petitioner, Brandon Gjerde (claimant), was present with his attorney, Mr. Patrick R. Sheehy. Respondent, Employers Insurance of Wausau (Wausau), was represented by Mr. Kelly M. Wills. Exhibits 1 though 5 and 7 through 9 were admitted. (There is no Exhibit 6.) Depositions of Jeanne Adams and the claimant were submitted for the Court's consideration. (At trial counsel could not find the original deposition of claimant and agreed that the Court could consider a copy.) Claimant, Mary Dvarishkis and Patricia Hink testified.

         Issues Presented: Claimant seeks total rehabilitation benefits to enable him to attend two years of vocational technical school. He also seeks additional permanent partial disability benefits.

         Bench Ruling: After all evidence had been taken, the parties were permitted closing statements. The Court then entered a bench ruling. It denied claimant's request for total rehabilitation benefits and awarded him an additional twenty (20%) percent in permanent partial disability benefits based on loss of wages, to be paid in a lump-sum without discount. The Court denied claimant's request for an additional two (2%) percent based on education and denied his request for attorney fees and a penalty.

         The following findings of fact, conclusions of law and judgment confirm the Court's bench ruling and are based on its consideration of the testimony at trial, the demeanor of the witnesses, the two depositions, the exhibits, and the arguments of counsel.

         FINDINGS OF FACT

         1. Claimant is 24 years of age. He is married.

         2. Claimant was employed as a laborer by Sysco Corporation (Sysco) for a period of several months commencing in 1991. He worked as a laborer loading cases of food onto trucks. Some of the items he lifted weighed one hundred (100) pounds.

         3. On January 3, 1992, claimant injured his back in the course of his employment when a one hundred (100) pound bag of rice fell and hit him on the shoulder, causing him to fall down onto his back. Thereafter the claimant experienced pain in his back and numbness in his legs.

         4. Claimant gave Sysco timely notice of his industrial accident.

         5. At the time of the accident Sysco was insured by Employers Insurance of Wausau, which accepted the claim for compensation.

         6. Claimant worked for three days following his injury. He has not worked since that time.

         7. Claimant was initially treated by a chiropractor but was thereafter treated by orthopedic surgeons. On January 30, 1992, he was examined and treated by Dr. D.R. Huard, an orthopedic surgeon. (Ex. 2 at 10.) Dr. Huard continued caring for claimant until September 15, 1992, when Dr. John Dorr, another orthopedist assumed his care. (Ex. 2 at 10-16.)

         8. An independent medical examination of claimant was performed on January 25, 1993 by Dr. John Diggs. The doctor found claimant to be at maximum healing and gave him a three (3%) percent impairment rating. (Ex. 2 at 1-4.) On February 25, 1993, Dr. Diggs approved several jobs as medically suitable for claimant, including those of Blow Mold Operator/Bagger. (Ex. 2 at 7-8.) He disapproved claimant's time-of-injury job because the lifting requirements of the job exceeded claimant's physical abilities. (Ex. 2 at 5-6.)

         9. On September 13, 1993, Dr. Dorr also determined that claimant had reached maximum healing.

         10. As of the date of trial Wausau had paid, or obligated itself to pay, $15, 024 in permanent partial disability benefits, which represents an award of 25.5 percent or 89.75 weeks. The benefits have been paid biweekly. As of the date of trial, Wausau had provided claimant with a fourteen (14) day notice of termination of benefits and owed claimant an additional $578 which will have been paid by the time these written findings of fact are issued.

         11. One of the issues in this case concerns claimant's entitlement, if any, to further permanent partial disability benefits. Claimant seeks an award based on a forty-five (45%) percent disability rating, while Wausau contends that he has already been overpaid and is entitled to only a twenty-three (23%) percent rating. The difference is due to a dispute over wage loss and education factors.

         12. Wausau agreed at the time of trial to pay any additional permanent partial disability benefits which the Court may find owing in a lump sum.

         13. Claimant also seeks rehabilitation benefits pursuant to section 39-71-2001, MCA, to enable him to attend Montana Technical College of Billings (formerly Vo-Tech) for two years to obtain certification in computer programming and business management.

         14. Claimant graduated from high school in 1988. He then attended Billings Vocational Technical School for two years, learning autobody repair and painting. His grade point average was 2.8 and he received his certification in autobody repair and painting.

         15. Claimant failed to diligently pursue employment in auto repair and painting.

a. While still at Vo-Tech, claimant worked for an auto repair shop in Billings for approximately a week. The job was an internship set up by the school as a part of a program to match students with potential employers. The internship could have led to a job but claimant did not pursue employ- ment at the shop because he felt he was too much of a "perfectionist" to fit in at the shop.
b. For a short time following his graduation, claimant looked for work in auto repair in Billings. In his deposition he testified that, ". . . I looked around and I couldn't find anything that was going to financially make me happy here, so I moved down to South Dakota to see about their body shops." (Gjerde Dep. at 8.) (Italics added.)
c. Claimant testified at trial that he looked for work in auto repair and painting in South Dakota, then took a job as a laborer for a construction company. In his deposition he testified that he went to work in construction because he could make more money than in auto repair and painting. (Gjerde Dep. at 8-9.) Having assessed claimant's overall credibility, the Court finds that claimant took a construction job because of the higher pay rather than any lack of auto repair jobs.
d. After a year in South Dakota, claimant returned to Billings. He worked for an autobody shop for a few days, but the shop apparently went into bankruptcy.
e. Claimant then found employment with Sysco, where he worked for several months. He did not thereafter seek employment in ...

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