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Burglund v. Liberty Mutual Northwest Insurance Co.

Court of Workers Compensation of Montana

April 10, 1995

STEVEN K. BURGLUND Petitioner
v.
LIBERTY MUTUAL NORTHWEST INSURANCE COMPANY Respondent/Insurer for UNITED PARCEL SERVICE Employer.

          AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: The parties agreed the Court should decide whether claimant, a UPS driver who hurt his back in 1984, is entitled to permanent partial disability benefits under either section 39-71-703, MCA (1983) or sections 39-71-705 through -708, MCA (1983). Also before the Court were issues of attorneys fees and penalty on any award other than for his impairment rating.

         Held: Claimant is not entitled to benefits under section 39-71-703, MCA (1983) for loss of earning capacity where the performance of his present job is unaffected by his injury and the Court is persuaded he will be able to continue to perform his job duties at a satisfactory level. However, claimant is entitled to benefits under sections 39-71-705 through -708, MCA (1983) where those benefits are to indemnify the worker for "possible" loss of future earning capacity. "Indemnity benefits" under those statutes are based on a schedule of injuries set forth in section 39-71-705, MCA (1983). In the case of a non-scheduled injury, such as claimant's back condition the maximum number of weeks of benefits is 500. With reference to the statute's purpose of providing benefits in proportion to the loss, and the factors for consideration (age, education, work experience, pain and disability, actual wage loss, possible loss of future earning capacity), the Court finds an additional ten percent appropriate, which amounts to a total of twenty percent given the ten percent award for impairment already paid. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).).

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1983). UPS driver is not entitled to benefits under section 39-71-703, MCA (1983) for loss of earning capacity where the performance of his present job is unaffected by his injury and the Court is persuaded he will be able to continue to perform his job duties at a satisfactory level. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).)
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-705 through -708, MCA (1983). UPS driver is entitled to benefits under sections 39-71-705 through -708, MCA (1983) where those benefits are to indemnify the worker for "possible" loss of future earning capacity. "Indemnity benefits" under those statutes are based on a schedule of injuries set forth in section 39-71-705, MCA (1983). In the case of a non-scheduled injury, such as claimant's back condition the maximum number of weeks of benefits is 500. With reference to the statute's purpose of providing benefits in proportion to the loss, and the factors for consideration (age, education, work experience, pain and disability, actual wage loss, possible loss of future earning capacity), the Court finds an additional ten percent appropriate, which amounts to a total of twenty percent given the ten percent award for impairment already paid. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).)
Benefits: Permanent Partial: Generally. UPS driver is not entitled to benefits under section 39-71-703, MCA (1983) for loss of earning capacity where the performance of his present job is unaffected by his injury and the Court is persuaded he will be able to continue to perform his job duties at a satisfactory level. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).)
Benefits: Permanent Partial: Lost Earning Capacity. UPS driver is entitled to benefits under sections 39-71-705 through -708, MCA (1983) where those benefits are to indemnify the worker for "possible" loss of future earning capacity. "Indemnity benefits" under those statutes are based on a schedule of injuries set forth in section 39-71-705, MCA (1983). In the case of a non-scheduled injury, such as claimant's back condition the maximum number of weeks of benefits is 500. With reference to the statute's purpose of providing benefits in proportion to the loss, and the factors for consideration (age, education, work experience, pain and disability, actual wage loss, possible loss of future earning capacity), the Court finds an additional ten percent appropriate, which amounts to a total of twenty percent given the ten percent award for impairment already paid. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).)

         The trial in this matter was held on October 13, 15, and 22, 1993, in Kalispell, Montana, and December 1, 1993, in Helena, Montana. Petitioner, Steven K. Burglund (claimant), was present throughout and represented by Mr. Darrell S. Worm. Respondent, Liberty Mutual Insurance Company (Liberty), was represented by Mr. Larry W. Jones.

         Witnesses at trial and by deposition: Claimant testified on his own behalf. Randy Kenyon, Jerry Auger, Mitch Noack, Kim Stevens, Bud Howe, Patrick Herron and Harold Wiltshire also testified. The depositions of Tim Tracy, O.T., Dr. Henry Gary, Dr. Alfred Swanberg and Dr. James Mahnke were admitted for the Court's consideration.

         Exhibits: Exhibits 1 through 3, 5, 6, 11 through 37, 41 through 48, 57 through 66 and 69 through 73 were admitted by agreement of the parties. Exhibits 4, 8 through 10, 38 through 40 and 75 were admitted without objection. Exhibit 68 was not offered. Exhibits 49 through 56, 77 and 81 were admitted over objection. Exhibits 7, 67, 76, 78 and 80 were withdrawn. Exhibits 74 and 79 were admitted for demonstrative purposes only.

         Issues presented: In his petition the claimant requested permanent partial disability benefits pursuant to section 39-71-705 through 708, MCA (1983) (indemnity benefits). On January 19, 1995, the Court issued Findings of Fact, Conclusions of Law and Judgment awarding claimant indemnity benefits.

         The Court then learned that it erred by overlooking the parties' stipulation, filed on the first day of trial, that this case be considered under section 39-71-703, MCA (loss of earning capacity). Upon learning of its mistake the Court withdrew its January 19, 1995 decision and conferred with counsel as to how to proceed. Following discussion with the Court, counsel filed a second stipulation dated March 28, 1995, which authorizes the Court to determine claimant's entitlement on both a loss of earning capacity basis and an indemnity basis. The stipulation also states that a penalty with respect to the impairment award "would be inappropriate." The Pretrial Order is deemed amended to encompass these two stipulations. The amendments do not affect claimant's request for attorney fees or his request for a penalty on any award of benefits other than for his impairment rating. Thus, those issues are still before the Court.

         Transcript citations: Citations to the transcript of the Kalispell proceedings are in the usual form of "Tr. at ." Citations to the transcript of the Helena proceedings appear as "HLN Tr. at _ ."

         Having considered the Pretrial Order, the March 28, 1995 stipulation, the testimony presented at trial, the demeanor and credibility of the witnesses appearing at trial, the exhibits, the depositions, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         1. Claimant's date of birth is April 22, 1955, and he is presently thirty-nine years old.

         2. Claimant graduated from high school. He also attended an electronics institute in the early 1970's. (Tr. at 35.)

         3. For the past fifteen years claimant has been employed by United Parcel Service (UPS) as a package car driver. His duties throughout his employment have included deliveries and pick-ups of UPS packages, as well as "sort-and-load" of packages at the Kalispell UPS Center. Claimant's "sort-and-load" duties are preformed at the beginning of his work shift and involve the lifting of packages off a conveyer belt and transferring them several feet to two or three delivery trucks. (Tr. at 147-153.) This job typically lasts from two to two and one-half hours. (Id. at 122, 153.) Claimant then drives a delivery route in a "package car," (Id. at 206-207) delivering and picking up packages on that route. Packages weigh up to seventy pounds but the "average" package weighs far less, approximately fifteen to twenty-five pounds. (Id. at 229.) On his present route packages in the fifty to seventy pound range constitute only eight to ten percent of all packages delivered by claimant. (Id. at 158.) In 1991 claimant handled five hundred to six hundred packages on sort-and-load, and another three hundred to four hundred and fifty packages on his route. (Id. at 230-31.)

         4. Prior to working for UPS claimant installed security equipment for a year or two and was a parts clerk at several auto supply stores.

         5. On February 14, 1984, claimant suffered an industrial injury arising out of and in the course of his employment with UPS. He injured his back when he fell from a platform.

         6.At the time of claimant's 1984 injury, UPS was insured by Liberty Mutual Northwest Insurance Company (Liberty). Liberty accepted liability for the claim in this matter and has paid various compensation and medical benefits.

         7. Claimant was first treated for injuries on February 29, 1984, by Dr. Alfred V. Swanberg, who specializes in internal medicine. (Swanberg Dep. at 6.) Following his initial examination of claimant, Dr. Swanberg diagnosed claimant as suffering from bruised back muscles. (Id. at 14-16.) The doctor took claimant off work for one week and prescribed Flexeril, a muscle relaxer. (Id. at 15.)

         8.On March 7, 1984, Dr. Swanberg re-examined claimant. At that time he diagnosed claimant as suffering from "LUMBOSACRAL STRAIN, CONTUSION OF LOW BACK." (Id. at 17 and Dep. Exhibit (unnumbered); capitalization in the original.) Claimant did not have radicular pain and Dr. Swanberg did not believe that he had suffered a disc injury or a vertebral fracture. (Id. at 20.) He expected claimant's condition to resolve within twelve weeks. (Id. at 17-20.)

         9. Between February 14, 1984 and March 7, 1984, claimant was also treated by a chiropractor. (Id. Exhibit (unnumbered).)

         10. On March 7, 1984, claimant told Dr. Swanberg that he was feeling better and wanted to return to work on March 12, 1984. (Id. at 17.) Dr. Swanberg approved a return to work and told claimant to contact him if he had any continuing back difficulties. (Id.) Claimant did not thereafter seek treatment from Dr. Swanberg for his low-back condition. (Id.)

         11. After claimant's return to work in 1984, he continued working as a full-time package car driver. (Tr. at 211.) He either returned to a route in the East Kalispell metropolitan area, hereinafter called the "[E]ast Kalispell [R]oute", or shortly after his return he transferred to the East Kalispell Route. (Id.) The claimant was not sure whether he was assigned that route before or after his injury. (Id.) The route was claimant's first permanent assignment; prior to that time he had been filling in for other drivers on vacation. (Id.)

         12. Following his return to work claimant continued to experience intermittent low-back pain.

         13. On February 16, 1988, claimant was examined by Dr. Henry Gary, who is a neurosurgeon. At that time the claimant reported that he had been experiencing low-back pain intermittently for two years, but his pain had increased since October of 1987. Since October his pain had extended into his buttocks and right leg to about the knee. (Gary Dep. of July 13, 1993 at 8-9 and Ex. 1.) Dr. Gary diagnosed claimant's condition as a herniated disc at the L5-S1 level. (Id. at 9.)

         14. Between February 1988 and February 1991, claimant's back and leg pain increased. (Id. at 33.)

         15.On February 18, 1991, Dr. Gary performed a lumbar laminotomy and a foramenotomy at the L5-S1 vertebral level. (Id. at 29 and Ex. 6.)

         16. Based on the following evidence, the Court is persuaded that claimant's herniated disc and February 1991 surgery were related to his 1984 injury:

a. On March 5, 1991, Dr. Gary wrote a letter to Liberty in which he stated, "It is my opinion that Mr. Burglund's herniated disc was a result of his injury of February 14, 1984. I further feel that he would most likely have had to eventually to [sic] come to surgery regardless of the type of work he performed." (Ex. 62.) Dr. Gary reiterated this opinion in his deposition. (Gary Dep. of September 29, 1993 at 6.)
b. Dr. Mahnke testified at his deposition that he agrees with that opinion. (Mahnke Dep. at 12.) Dr. Mahnke also opined that Dr. Swanberg's initial diagnosis of a lumbosacral strain is consistent with Dr. Gary's later diagnosis of a bulging and then ruptured disc at the L5-S1 level.
c. Dr. Swanberg was not asked to give an opinion on whether claimant's 1984 injury ...

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