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Stermitz v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 12, 1995

MICHAEL STERMITZ Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Fish, Wildlife and Parks field technician sought additional permanent partial disability benefits for lost earning capacity, and additional temporary total disability benefits for days taken as sick leave or vacation.

         Held: Claimant is entitled to additional benefits under section 39-71-703, MCA (1985), an old law section, where his ability to perform his time-of-injury job has been diminished. Although he is now performing that job satisfactorily, he can no longer perform some aspects of the job and has suffered diminished capacity to compete for jobs within his usual field of employment. Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer's denial of benefits gave claimant no alternative but to use other forms of paid leave. Cf. 44 Op. Att'y Gen. No. 33 (1992), where Attorney General concluded that if annual leave benefits are being paid, there is no total loss of wages to render an employee eligible for workers' compensation benefits.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1985). The benefits provided under old law section 39-71-703, MCA, are for actual loss of earning capacity. Post-injury wages, while one item of evidence in determining future earning capacity, are not conclusive; rather, the measure is whether there has been a loss of ability to earn in the open labor market. The loss must be permanent, with the Court taking into consideration not only pre-injury and post-injury wages but also the claimant's age, occupational skills, education, previous health and remaining number of productive years and degree of physical or mental impairment. While a worker may return to his time-of-injury job and earn more than before, there may still be a loss of earning capacity if the workers' performance is impaired and his ability to compete in the open labor market is lessened. Loss of efficiency in work decreases a worker's chances of finding employment in the open labor market and translates into a reduced earning capacity.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1985). Fish, Wildlife and Parks field technician was entitled to additional benefits under section 39-71-703, MCA (1985), an old law section, where his ability to perform his time-of-injury job has been diminished. Although he is now performing that job satisfactorily, he can no longer perform some aspects of the job and has suffered diminished capacity to compete for jobs within his usual field of employment.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-116(19) -- (20), MCA (1985). Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer's denial of benefits gave claimant no alternative but to use other forms of paid leave. Cf. 44 Op. Att'y Gen. No. 33 (1992), where Attorney General concluded that if annual leave benefits are being paid, there is no total loss of wages to render an employee eligible for workers' compensation benefits.
Benefits: Permanent Partial Disability Benefits: Lost Earning Capacity. The benefits provided under old law section 39-71-703, MCA, are for actual loss of earning capacity. Post-injury wages, while one item of evidence in determining future earning capacity, are not conclusive; rather, the measure is whether there has been a loss of ability to earn in the open labor market. The loss must be permanent, with the Court taking into consideration not only pre-injury and post-injury wages but also the claimant's age, occupational skills, education, previous health and remaining number of productive years and degree of physical or mental impairment. While a worker may return to his time-of-injury job and earn more than before, there may still be a loss of earning capacity if the workers' performance is impaired and his ability to compete in the open labor market is lessened. Loss of efficiency in work decreases a worker's chances of finding employment in the open labor market and translates into a reduced earning capacity.
Benefits: Permanent Partial Disability Benefits: Lost Earning Capacity. Fish, Wildlife and Parks field technician was entitled to additional benefits under section 39-71-703, MCA (1985), an old law section, where his ability to perform his time-of-injury job has been diminished. Although he is now performing that job satisfactorily, he can no longer perform some aspects of the job and has suffered diminished capacity to compete for jobs within his usual field of employment.
Benefits: Temporary Total Disability Benefits. Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer's denial of benefits gave claimant no alternative but to use other forms of paid leave.
Wages: Vacation and Sick Leave. Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer's denial of benefits gave claimant no alternative but to use other forms of paid leave. Cf. 44 Op. Att'y Gen. No. 33 (1992), where Attorney General concluded that if annual leave benefits are being paid, there is no total loss of wages to render an employee eligible for workers' compensation benefits.

         The trial in this matter was held on February 28 and March 1, 1994, in Kalispell, Montana. The petitioner, Michael Stermitz (claimant or Stermitz), was present and represented by Ms. Sydney E. McKenna. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Ken C. Crippen and Mr. Oliver H. Goe. Claimant, David Charles Gray, D.C., Anne Arrington, Lucinda Dixon and William Lynn testified. Additionally, the depositions of William Lynn, Anne Arrington, Dr. Dean Ross and claimant were submitted for the Court's consideration. Exhibit 1 was admitted with the exception of pages 38a and 38b. Exhibits 2 through 23, 25, 26, 27 and 29 through 35 were admitted. Exhibit 24 was withdrawn and Exhibit 28 was admitted over the objection of Ms. McKenna.

         Transcript references: The trial transcript is in two parts, one for each day. Each transcript begins at page 1. Therefore references to the transcript will be in the form of Tr. I for the February 28, 1994 transcript and Tr. II for the March 1, 1994 transcript.

         Issues Presented: This case involves Mr. Stermitz' claim that he is entitled to additional permanent partial disability benefits, temporary total disability benefits, attorney fees and costs. Other issues raised in the petition have been resolved. At the time of trial, counsel advised the Court that the claim regarding claimant's entitlement to per diem and mileage for physical therapy treatment (Pretrial Order, Page 1, Issued (sic) To Be Determined No. 7) had been settled. Also at trial, the insurer indicated that it had authorized payment of $139.85 to the claimant for reimbursement of expenses for medicine. (Tr. II at 211.) The controversy over payment for custom-made work boots was resolved by a bench ruling. The Court determined that Dr. Ross' deposition testimony concerning the necessity of the boots was equivocal but ordered payment for the boots if the doctor hereafter affirms the necessity of the boots. (Id. at 211, 212.) Additionally, the Court directed counsel to determine from Dr. Ross whether a sport's center membership would be beneficial for the claimant. If Dr. Ross determines the membership is needed the State Fund must pay that expense. Following trial, by letter dated April 15, 1994, the Court was advised that the parties have resolved all issues concerning the proper computation of the impairment award and all penalty issues.

         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. At the time of trial claimant was thirty-four years old. He was single and living in Stevensville, Montana.

         2. Claimant graduated from high school in 1977. (Stermitz Dep. at 6.)

         3. Following his high school graduation he held a number of different jobs. Initially, he worked for the Oregon State Highway Department as a laborer/flagger. He flagged traffic and spread and raked asphalt. (Tr. I at 6.) Later in 1977, he took a job with Intermountain Lumber, tailing lumber and working the dry chain. He continued to work for Intermountain through 1978. (Id.; Ex. 3 at 5.)

         4. Claimant commenced his college education in 1979 at Northern Arizona University. He returned to Montana in 1980 and sometime thereafter enrolled at the University of Montana, earning a bachelor's degree in wildlife biology with a minor in zoology in 1985.

         5. Between 1979 and his graduation from the University of Montana, claimant worked as a crew boss on a telephone crew, shoveling snow and cutting down telephone poles, and as a stock cutter at Missoula White Pine & Sash Company. He also held a variety of summer jobs. He worked for the Young Adult Conservation Corps, as a construction laborer for the U.S. Park Service in Yellowstone Park, as a forest technician at Badlands National Park and as a fisheries technician for Montana Department of Fish, Wildlife and Parks (FWP). His jobs included work on a paving crew and on a crusher crew. He also built trails, hiked up streams and performed heavy lifting. His jobs between 1979 to 1985 were medium to heavy-duty positions.

         6. After graduation from college in the spring of 1985, claimant took an entry level position with FWP as a field technician in Libby, Montana. In 1987 he took a job as a FWP game warden in Glasgow, Montana, where he worked for two years. He was then transferred to Stevensville, Montana, where he continues to work.

         7. Claimant suffered an industrial injury on March 26, 1987, while working for FWP. At the time of the injury he was working as a field technician. He was pulling up a concrete and rebar boat anchor when he felt a pop in his back. By the next day his back and buttocks were sore. His pain increased over the next few days.

         8. At the time of the accident, FWP was insured by the State Fund. The State Fund accepted liability for claimant's March 26, 1987 injury and has paid various disability and medical benefits.

         9. Following his injury the claimant was treated by Dr. Ethan Russo. The doctor first examined claimant on April 10, 1987. (Ex. 1 at 4.) Dr. Russo recommended bed rest for a week, but noted claimant resisted the idea. Dr. Russo therefore prescribed back exercises and Clinoril, which is a non-steroidal anti-inflammatory drug (Physician's Desk Reference, 1994 Ed.), and advised claimant to return in a month if his condition did not improve. (Id.)

         10. Claimant missed work on April 10, 14, 15, 16 and 17, 1987, and received sick leave pay for these days. (Ex. 25.)

         11. Claimant returned to Dr. Russo on May 26, 1987, for a further evaluation of his back, which had not improved. Electrodiagnostic tests were negative and a CT scan was scheduled. Dr. Russo renewed his prescriptions for physical therapy and Clinoril. (Ex. 1 at 8.)

         12. A CT scan performed on May 29, 1987 revealed:

Bulging centrally & to the right of the L5-S1 disc approximately 3-4 mm with possible entrapment of the left S1 root and the lateral recess. Focal near-herniated disc at L5-S1 centrally and to the right effacing the anterior and right lateral aspect of the thecal sac, perhaps involving the right L5 root.

(Id. at 40.)

         13. On June 27, 1987, claimant was again seen by Dr. Russo. Physical therapy and Clinoril had not altered his symptoms. Dr. Russo prescribed an epidural block and noted that if the block was unsuccessful, a surgical opinion would be pursued. (Id. at 10.) The epidural block in fact did not provide claimant with relief. (Id. at 11.) However, ...


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