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Burgan v. Nationwide Insurance Co.

Court of Workers Compensation of Montana

October 4, 1995

WILLIAM BURGAN Petitioner
v.
NATIONWIDE INSURANCE COMPANY Respondent/Insurer for CENEX Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Claimant sought permanent partial disability benefits pursuant to sections 39-71-705 through -708, MCA (1985).

         Held: The permanent partial disability benefits available under sections 39-71-705 through -708, MCA (1985), commonly referenced as "indemnity benefits," seek to indemnify the injured worker for "possible" loss of future earning capacity, rather than any "actual" loss of earning capacity. These benefits are based on a schedule of injuries, but in the case of a non-scheduled injury, such as the back injury at issue here, the maximum number of weeks of benefits is 500 weeks, with the award for less than a total loss to "be proportionate to loss or loss of use." §39-71-706(1), MCA (1985). In determining disability, the Court must consider the claimant's age, education, work experience, pain and disability, actual wage loss, and possible loss of future earning capacity. Considering all these factors, the Court finds claimant entitled to 250 weeks of permanent partial disability benefits at the maximum rate. Claimant is also entitled to attorneys fees and costs, as well as a penalty under section 39-71-2907, MCA (1985) because the claimant's right to some amount of permanent partial disability benefits should have been patently clear to the insurer, but it made no offer to settle claims for permanent partial disability benefits, but tied offers to settle to claimant's relinquishment of all claims for TTD and PTD benefits.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: sections 39-71-705 through -708, MCA (1985). The permanent partial disability benefits available under sections 39-71-705 through -708, MCA (1985), commonly referenced as "indemnity benefits," seek to indemnify the injured worker for "possible" loss of future earning capacity, rather than any "actual" loss of earning capacity. These benefits are based on a schedule of injuries, but in the case of a non-scheduled injury, such as the back injury at issue here, the maximum number of weeks of benefits is 500 weeks, with the award for less than a total loss to "be proportionate to loss or loss of use." §39-71-706(1), MCA (1985). In determining disability, the Court must consider the claimant's age, education, work experience, pain and disability, actual wage loss, and possible loss of future earning capacity.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: sections 39-71-2907, MCA (1985). Claimant is also entitled to a penalty under section 39-71-2907, MCA (1985) because the claimant's right to some amount of permanent partial disability benefits should have been patently clear to the insurer, but it made no offer to settle claims for permanent partial disability benefits, but tied its offers to relinquishment of all claims for TTD and PTD benefits.
Benefits: Permanent Partial Disability Benefits: Lost Earning Capacity. The permanent partial disability benefits available under sections 39-71-705 through -708, MCA (1985), commonly referenced as "indemnity benefits," seek to indemnify the injured worker for "possible" loss of future earning capacity, rather than any "actual" loss of earning capacity. These benefits are based on a schedule of injuries, but in the case of a non-scheduled injury, such as the back injury at issue here, the maximum number of weeks of benefits is 500 weeks, with the award for less than a total loss to "be proportionate to loss or loss of use." §39-71-706(1), MCA (1985). In determining disability, the Court must consider the claimant's age, education, work experience, pain and disability, actual wage loss, and possible loss of future earning capacity.
Penalties: Insurers. Claimant is also entitled to a penalty under section 39-71-2907, MCA (1985) because the claimant's right to some amount of permanent partial disability benefits should have been patently clear to the insurer, but it made no offer to settle claims for permanent partial disability benefits, but tied its offers to relinquishment of all claims for TTD and PTD benefits.

         The trial in this matter was held on August 15, 1995, in Billings, Montana. Petitioner, William Burgan (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, Nationwide Insurance Company (Nationwide), was represented by Mr. Neil S. Keefer. The claimant and William Strauch testified at trial. In addition, the depositions of William Shaw, M.D. and claimant were submitted for the Court's consideration. Exhibits 1 through 9 were admitted by stipulation.

         Issues Presented: Claimant seeks permanent partial disability benefits pursuant to sections 39-71-705 through 708, MCA (1985). He also seeks attorney fees, costs and a penalty.

         Citations to record: A transcript of trial testimony has not been prepared. Therefore, no citation is made where the basis of the finding is testimony introduced at trial. Also, since claimant testified both at trial and by deposition, and there is substantial overlap in that testimony, I have not specifically cited to his deposition.

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

         FINDINGS OF FACT

         1. Claimant is 46 years old. He is married and resides in Billings, Montana, with his wife and young child.

         2. Claimant is a high school and college graduate. He received a Bachelor of Arts degree in business and economics in 1973.

         3. After graduating from college, claimant went to work for Cenex at its Laurel, Montana refinery in March of 1974. He has continued to work at the Laurel refinary since that time (over 22 years). He has no other significant employment history and has never utilized his college degree in his employment.

         4. Claimant was initially hired by Cenex in an entry level position as a laborer. After two years in that position he bid into the position of assistant operator in the crude unit and, except for a few brief periods, has been employed in that position since that time.

         5. The crude unit at the Laurel refinery is split into two sides which are operated by four workers. A console operator monitors computer readings from both sides of the unit. A zone operator supervises all work on both sides of the unit. Finally, there are two assistant zone operators (assistant operators), one on each side of the unit.

         6. The assistant operators perform much of the physical work involved in the operation of the crude unit. That work includes climbing ladders and stairs on tanks and towers to read gauges, checking equipment, and adjusting valves. Some of the towers are over 100 feet high. From 15% to 100% of a shift may involve climbing. The assistant operator opens and closes valves which are 16 to 18 inches in diameter and wheels which are up to 30 inches in diameter. The valves are especially difficult to turn in cold weather and some require the use of a 36-inch pipe wrench to obtain adequate leverage to turn them. The job also involves substantial walking, and on occasion the use of a bicycle to get from place to place. Walking is typically on a concrete surface. Most of the time the assistant operator is on his feet. The assistant operator must also respond quickly to emergency situations. Those situations may require dragging heavy hoses and lifting heavy equipment in tight and awkward places.

         7. The zone operator supervises the two assistant operators. The zone operator may also perform some of the physical work.

         8. On August 15, 1986, while working as an assistant operator, claimant fell off a pipe while working at the Laurel refinery and injured his lower back.

         9. Following his fall claimant was initially treated by a chiropractor. He was then examined by Dr. William Shaw, who specializes in occupational medicine, on September 23, 1986. (Ex. 3 at 19.) Dr. Shaw noted that claimant "had a radiculopathy, most likely at the L5 or S1 root." (Shaw Dep. at 6.)

         10. In early October 1986, claimant was evaluated at the Billings Deaconess Hospital by Dr. Robert C. Wood. Dr. Wood diagnosed a ...


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