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Boharski v. Aetna Casualty & Surety Co.

Court of Workers Compensation of Montana

December 15, 1995

GEORGE BOHARSKI Petitioner
v.
AETNA CASUALTY & SURETY COMPANY Respondent/Insurer for MATHEWS McCRACKEN Employer. Pre Lump Sum Statement of Financial Condition

          Date Submitted: December 12, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: Claimant, who is receiving permanent total disability benefits, sought lump-sum advance in amount of $28, 328.85 to build heated garage and to purchase sleeper sofa, nightstands, and new gas stove, and to insulate the floor of his house. Insurer had already agreed to advance money for floor insulation and new stove, to be recouped from benefits at rate of $15 per week.

         Held: Where court found claimant wholly incredible, and was not convinced he would spend lump-sum advance as he claims, request is denied, except for those amounts to which insurer already agreed.

         Topics:

Witnesses: Credibility. Where court found claimant wholly incredible, and was not convinced he would spend lump-sum advance as he claims (to build heated garage, purchase sofa bed, furniture, and stove, and insulate house), request is denied, except for those amounts to which insurer already agreed.
Benefits: Lump Sums: Generally. Where court found claimant wholly incredible, and was not convinced he would spend lump-sum advance as he claims (to build heated garage, purchase sofa bed, furniture, and stove, and insulate house), request is denied, except for those amounts to which insurer already agreed.

         The trial in the above-entitled matter came on Tuesday, December 12, 1995, at 10:04 a.m., in Courtroom 1, Flathead County Justice Center, Kalispell, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presided. Petitioner, George Boharski, was present and represented by Ms. Laurie Wallace. Respondent was represented by Mr. Charles E. McNeil. The court reporter in this matter was Ms. Beth Gilman.

         Opening statements were made by counsel. Exhibit 1 was admitted by stipulation. Judge McCarter asked for Exhibits 2 through 4, which were admitted. Ms. Wallace asked that the Court take judicial notice of Exhibit 5, which it did. The parties agreed that the deposition of claimant can be considered part of the record. Petitioner, George Boharski, was sworn and testified.

         Findings of Fact

         1. Claimant is 62 years of age and lives alone.

         2. On July 17, 1980, he suffered an industrial injury while working for Mathews McCracken. McCracken was insured by Aetna Casualty & Surety Company at the time of the injury. Aetna accepted liability for the claim submitted on account of the injury.

         3. The parties agree that claimant is permanently totally disabled. He is receiving permanent total disability benefits on a biweekly basis.

         4. According to a financial statement prepared by the claimant, he currently has the following income and expenses:

Pre Lump Sum Statement of Financial Condition
Income

Workers' Compensation:

$ 543.59

Social Security:

1, 008.00

Union Pension:

68.00

Total $ 1, 619.59

Monthly Expenses
Creditors Monthly payments

Mortgage or Rent

$222.00

Land or Lot Rent

50.68

Electricity

70.00

Wood

40.00

Telephone

40.00

Groceries/Mis. Household

300.00

Clothing

50.00

Auto Maintenance, Gas

125.00

Auto Insurance

75.00

Homeowners Insurance

23.00

Entertainment

50.00

Property Taxes

30.00

Other Loans and Payments:

$386.72

Truck Payment Total Payments/Expenses

$1, 462.40

Total Income Less Expenses

$157.19


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