EDWARD KILLOY, JR. Petitioner
RELIANCE NATIONAL INDEMNITY Respondent/Insurer for RHONE-POULENC BASIC CHEMICALS COMPANY Employer.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
Claimant sought permanent total disability benefits,
testifying that jobs identified by the insurer would increase
his pain and make him a "cranky" employee.
While the Court was persuaded claimant does have pain and
that activity increases his pain, it was not convinced that
claimant's pain physically prevents him from working as
either a motel clerk or cashier.
trial in this matter was held on August 30, 1995, in Butte,
Montana. Petitioner, Edward Killoy, Jr. (claimant), was
present and represented by Mr. Bernard J. Everett.
Respondent, Reliance National Indemnity (Reliance National),
was represented by Mr. Brendon J. Rohan. The claimant
testified on his own behalf. Patricia Hink, a certified
rehabilitation counselor, also testified. Exhibits 1 through
6 were admitted by stipulation. Exhibit 7 was admitted
without objection. The parties agreed that the depositions of
claimant and Dr. Richard C. Dewey may be considered by the
partial trial transcript has been prepared. Unless otherwise
noted, the facts found herein are based on the trial
testimony or on claimant's deposition.
Claimant seeks permanent total disability benefits, attorney
fees and costs, and a penalty. Respondent contends claimant
is not permanently totally disabled and that he is not
entitled to fees, costs, or a penalty.
* * * *
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 makes the following:
Claimant was 58 years old at the time of trial. He did not
graduate from high school but obtained a GED when he was in
the Navy. He has no further formal education. He served two
years active duty in the Navy and eight years in the Naval
Since 1956 claimant has principally worked as a mechanic. He
was trained as a heavy-duty automotive mechanic in an
apprenticeship program beginning in 1962. He is certified by
the State of Montana as a heavy-duty mechanic. Since 1962 he
has worked for various employers, primarily as a heavy-duty
worked for Rhone-Poulenc Basic Chemicals Company (then known
as "Stauffer") for a few months in both 1986 and
1987 as a mechanic. He then went to work for the company
full-time in April 1991.
Claimant was injured in the course and scope of his
employment with Rhone-Poulenc on August 20, 1993. He was
injured when a large, heavy shaker screen, which he and three
other employees were lifting, fell and struck him on the
head, jamming his neck.
the time of claimant's injury, Rhone-Poulenc was insured
by Reliance National Indemnity, which accepted liability for
claimant's injury. Reliance has paid medical benefits and
paid claimant temporary total disability benefits until May
27, 1995, when it converted his benefit status to permanent
partial disability. Since May 27, 1995, it has paid claimant
permanent partial disability benefits at the rate of $181 per
Following his industrial accident, claimant was initially
examined by Dr. Bruce Knutsen on August 23, 1993. At that
time claimant was complaining of severe neck pain with
radiation of the pain into his shoulders. He also complained
of numbness in his fingers. X-rays showed
"[d]egener-ative disc changes, spurring, and some
narrowing of the lower foramina." Dr. Knutsen prescribed
physical therapy and medication, directed that claimant be
placed on light duty, and ordered an MRI scan of the neck.
(Ex. 4 at 1.)
August 27, 1993, claimant told Dr. Knutsen that his
light-duty work was aggravating his neck pain. Dr. Knutsen
advised him to take a full week off of work. (Id. at
Knutsen continued to treat claimant conservatively. He
prescribed rest, physical therapy, cervical traction, and
medication. Claimant remained off work. Although he initially
reported his condition as improving with physical therapy,
his condition then deteriorated and he was referred to Dr.
Richard Dewey for a second opinion. (Killoy Dep. at 25-26;
Ex. 4 at 2-6.)
Claimant was examined by Dr. Dewey on October 14, 1993. Dr.
Dewey interpreted the MRI as showing "significant
cervical canal stenosis at L4-5, 5-6 and 6-7 [sic].
There is degenerative disc disease at these levels, some
neuroforaminal encroachment." (Ex. 1 at 2.) The
reference to lumbar disks appears to be in error, and should
refer to the cervical level. (Dr. Dewey was interpreting a
cervical, not a lumbar MRI. An L-6 vertebra is an
oddity, and the Court has never heard of an L-7 vertebra.)
There were no radicular findings. Dr. Dewey advised claimant
to engage in an aggressive stretching program and requested
that he return in three or four weeks. (Id.)
Claimant returned to see Dr. Dewey on November 9, 1993. Dr.
Dewey reported that claimant was much improved. He felt that
decompression surgery was unwarranted and advised claimant to
continue his stretching exercises and return for a yearly
examination to determine whether his spinal stenosis was
progressing. (Id. at 4.)
Claimant was released to full-duty work on November 16, 1993
by both Dr. Dewey and Dr. Knutsen. (Ex. 4 at 7.) Dr. Knutsen
advised claimant to avoid any trauma to or hyperextension of
his neck. (Id.)
Claimant returned to work but experienced increasing pain in
his neck. Dr. Knutsen took claimant off work on December 14,
1993, due to his increased neck pain. (Id.) Over the
next two weeks, claimant's condition improved and he ...