Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Church v. Travelers Indemnity Company of Illinois

Court of Workers Compensation of Montana

May 27, 1997

STEVE CHURCH Petitioner
v.
TRAVELERS INDEMNITY COMPANY OF ILLINOIS Respondent/Insurer for FOOD SERVICES OF AMERICA Employer.

          Submitted Date: May 13, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: Warehouse loader/stocker with back injury returned to work with restriction against lifting more than 20 pounds. Although the insurer paid him an impairment award and PPD benefits based on the age and education factors, it initially refused to pay for loss of ability to perform heavy labor. After input from a vocational consultant and a functional capacity evaluation, the insurer paid 17.5% for the labor factor, based on its decision to "split" the difference between 20% and 15% where claimant was performing post-injury labor that fell "between" medium and light duty.

         Held: There is no statutory basis for "splitting" the labor factor portion of PPD benefits. Where claimant credibly testified he was not lifting 25 pounds or more frequently, he is entitled to PPD benefits for reduction of lifting capacity from heavy to light duty. The insurer's position was unreasonable where its statutory interpretation was without basis and its assertions at trial regarding claimant's lifting capacity were without factual support. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-703, MCA (1993).

Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory basis for "splitting" the labor factor portion of PPD benefits. Where claimant credibly testified he was not lifting 25 pounds or more frequently, he is entitled to PPD benefits for reduction of lifting capacity from heavy to light duty. The insurer's position was unreasonable where its statutory interpretation was without basis and its assertions at trial regarding claimant's lifting capacity were without factual support. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness.

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-2907, MCA (1993).

Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory or factual basis for "splitting" the labor factor portion of PPD benefits, making the insurer's position unreasonable. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness. Penalty and attorneys fees awarded.

Attorney Fees: Unreasonable Denial of Delay of Payment.

Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory or factual basis for "splitting" the labor factor portion of PPD benefits, making the insurer's position unreasonable. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness. Penalty and attorneys fees awarded.

Benefits: Permanent Partial Benefits: Labor Capacity.

Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory basis for "splitting" the labor factor portion of PPD benefits. Where claimant credibly testified he was not lifting 25 pounds or more frequently, he is entitled to PPD benefits for reduction of lifting capacity from heavy to light duty. The insurer's position was unreasonable where its statutory interpretation was without basis and its assertions at trial regarding claimant's lifting capacity were without factual support. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness.

Penalties: Insurers.

Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory or factual basis for "splitting" the labor factor portion of PPD benefits, making the insurer's position unreasonable. The fact that the insurer required trial over $1, 631.88 in benefits magnifies its unreasonableness. Penalty and attorneys fees awarded.

         The trial in this matter was held in Billings, Montana, on May 13, 1997. Petitioner, Steve Church (claimant), was present and represented by Mr. James G. Edmiston. Respondent, Travelers Indemnity Company of Illinois (Travelers), was represented by Mr. Dylan E. Jackson.

         Exhibits: Exhibits 1 through 7 and 9 through 10 were admitted without objection. Claimant's objection to Exhibit 8 was withdrawn and the exhibit was admitted.

         Witnesses and Depositions: Claimant, Kevin Malley, Patricia Hink, and Diane Nelson were sworn and testified. No depositions were submitted.

         Issue Presented: The sole issue regarding benefits is whether claimant is entitled to an additional 2.5% in permanent partial disability benefits for loss of labor capacity. In addition, claimant is seeking attorney fees and a penalty.

         Prior Rulings: The Court previously denied a motion for summary judgment filed by claimant.

         However, in its Order denying the motion, the Court determined that section 39-71-703(3)(d), MCA (1993), does not allow the insurer to "split the difference" between medium and light labor where the claimant does not meet the criteria for medium labor but nonetheless exceeds the minimum definition of light labor. I held that if the claimant does not satisfy the minimum criteria for medium labor then payment of benefits must be based on the percentage specified for light labor. I further held that Travelers' interpretation of the statute was unreasonable. The only matters reserved for trial were whether claimant in fact was performing heavy labor before his injury and whether in fact he has been doing only light labor after the injury. I also reserved judgment as to whether Travelers' factual defense is reasonable.

         Bench Ruling: Following trial the Court ruled from the Bench, finding that claimant is entitled to an additional 2.5% for loss of labor capacity. The Court further found that Travelers' denial of the 2.5% was unreasonable and that claimant is therefore entitled to attorney fees and a penalty. The Court stated the factual and legal basis supporting the rulings at the end of trial. Those findings and conclusions are reaffirmed and supplemented by this written decision.

         * * * * *

         Having considered the Pre-trial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.