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McLaughlin v. ANR Freight Systems

Court of Workers Compensation of Montana

June 4, 1997

KEN M. McLAUGHLIN Petitioner
v.
ANR FREIGHT SYSTEMS Respondent/Insurer/Employer. ANR FREIGHT SYSTEMS, Petitioner/Insurer/Employer
v.
KEN M. McLAUGHLIN Respondent.

          Submitted: September 12, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge.

         Summary: 45-year old truck driver suffered crush injury to hand and wrist while unloading at federal facility. He recovered $60, 000 in settlement of lawsuit against federal government. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that claimant now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. He claimed additional permanent partial disability benefits based on loss of earning capacity theory, section 39-71-703, MCA (1985). Insurer claimed right to subrogation based on third-party recovery.

         Held: The relevant inquiry under section 39-71-703, MCA (1985) is whether claimant's ability to earn in the open labor market is diminished by a work-related injury after taking into account all relevant factors, including age, occupation, skills and education, previous health, number of productive years remaining, and degree of physical or mental impairment. While a worker may return to his time-of-injury job and earn more than before, he may still lose earning capacity if his performance is impaired and his ability to compete in the open labor market is lessened. WCC was persuaded claimant can no longer work safely as a truck driver or endure pain that would result. WCC was also convinced that claimant's job market is reflected by his present accounts manager position. Under sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder. Insurer is not entitled to subrogation where claimant was not made whole by the $60, 000 recovery. His settlement was made in order to put that litigation to an end, not because it reflected his actual losses.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-414, MCA (1985). 45-year old truck driver suffered crush injury to hand and wrist while unloading at federal facility. He recovered $60, 000 in settlement of lawsuit against federal government. WCC rejected insurer's claim for subrogation where claimant was not made whole by his third-party recovery. He settled in order to end that litigation, but proved his losses far exceeded $60, 000.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1985). 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.
Benefits: Permanent Partial Disability Benefits: Lost Earning Capacity. 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.
Subrogation. 45-year old truck driver suffered crush injury to hand and wrist while unloading at federal facility. He recovered $60, 000 in settlement of lawsuit against federal government. WCC rejected insurer's claim for subrogation where claimant was not made whole by his third-party recovery. He settled in order to end that litigation, but proved his losses far exceeded $60, 000.
Wages: Overtime. 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under loss of earning capacity theory, sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.
Wages: Wage Loss. 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under loss of earing capacity theory, sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.

         The trial in these two consolidated matters was held on August 27, 1996, in Helena, Montana.

         Petitioner, Ken McLaughlin (claimant), was present and represented by Mr. John C. Doubek. Respondent, ANR Freight Systems (ANR), was represented by Mr. Thomas A. Marra.

         Exhibits: Exhibits 1-18 were admitted by stipulation of the parties.

         Witnesses and Depositions: Claimant, Teresa McLaughlin, Michael Anderson, and Patricia Hink were sworn and testified. In addition, the parties submitted the depositions of claimant, Ren Beyer, and Michael Anderson for the Court's consideration. Exhibit 15 contains additional depositions of claimant, Michael Anderson, Ren Beyer, and Dr. Paul Donaldson. These depositions were taken in a third-party action brought by claimant against the United States.

         Issues Presented: The issue in WCC No. 9507-7343 is whether claimant is entitled to permanent partial disability benefits and, if so, in what amount. Claimant also seeks attorney fees, costs and a penalty. The issue in WCC No. 9603-7517 is whether ANR is entitled to subrogation with respect to a $60, 000 settlement obtained by claimant in his third-party action against the United States.

         Having considered the Pretrial 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:

         FINDINGS OF FACT

         1. Claimant is 45 years old and resides in Helena, Montana. He is married and has three children. He is a high school graduate and has completed approximately one year of college. (Ex. 15 at 533; Tr. at 30.)

         2. Claimant was a credible witness. His testimony has therefore been incorporated and adopted in the following findings.

         3. In the early 1970s claimant served in the National Guard and in the Army Reserve. (Tr. at 30-31.) He also worked for Burlington Northern (ex. 15 at 533), Kentucky Fried Chicken (id.), Boyles Brothers Drilling Company (id. at 534), and the Highway Department on a survey crew (id.).

         4. In March 1973 claimant began working as a truck driver for Garrett Freight Lines (Garrett). (Ex. 15 at 525.) ANR Freight (ANR) acquired Garrett in 1988. (Tr. at 33.) Claimant continued to work as a truck driver for ANR. (Ex. 5. at 525.)

         5. Claimant's job duties as a truck driver included loading and unloading freight weighing as much as 300 pounds. (Id.)

         6. During his employment as a truck driver for Garrett and ANR, and later for Consolidated Freightways, claimant was a member of the Teamsters Union. (Id. at 530-31.) Contracts between the Teamsters Union and his employers governed his wages.

         7. On April 15, 1987, while employed by ANR, claimant injured his left wrist while unloading 2500-pound crates of tank cannon barrels at Fort Harrison in Helena. (Tr. at 36-37.) During unloading, a forklift driven by a government worker lurched forward, pinning claimant's wrist between a crate and the forklift. (Ex. 15 at 541; Tr. at 38.) Claimant's left wrist and forearm were crushed.

         8. At the time of claimant's industrial accident, ANR was self-insured under Plan I of the Workers' Compensation Act. It accepted liability for the accident and paid temporary total disability benefits at the rate of $299 per week. It has also paid medical benefits and an impairment award. (Ex. 15 at 564.) Its payments on account of the injury are $5, 591.30 as an impairment award; $12, 301.68 in temporary total disability benefits, and $10, 091.69 in medical benefits. (Pretrial Order at 2.)

         9. Immediately following the industrial accident, claimant was taken to St. Peter's Community Hospital in Helena. Dr. Chess initially examined claimant and admitted him to the hospital. (Ex. 9.) Thereafter, claimant was treated by his family physician, Dr. Paul S. Donaldson. (Ex. 15 at 189.) Dr. Donaldson diagnosed claimant with "[e]arly compartment syndrome with evidence of compression of the median nerve" (id.) and discharged claimant the next day (id. at 191). Dr. Donaldson gave claimant a splint, prescribed physical therapy, and predicted that he would recover from his injury within two to three weeks. (Id. at 217.)

         10. However, claimant's wrist continued to be painful. On April 30, 1987, his wrist was x-rayed but the x-ray was negative for a fracture. (Id. at 188.) Dr. Donaldson fit claimant with a new splint and told him to return in two weeks. (Id.)

         11. The pain continued and on June 22, 1987, Dr. Bill J. Tacke, performed an electromyography nerve conduction study of claimant's wrist. His findings were as follows:

FINDINGS: 1) Nerve conduction studies normal for bilateral median and ulnar motor and sensory nerves. Left ulnar motor forearm segment slightly slower than similar segment on the right (left 56 m/s; right 65 m/s).
2) EMG testing showed recruitment reduction for the ulnar innervated hand muscles on the left.
ASSESSMENT: Findings indicate there may be some mild left ulnar nerve neuropraxia but no marked denervation is present. If symptoms persist, repeat testing may be helpful in 2-3 months.

(Ex. 1 at 13.)

         12. Dr. Donaldson also referred claimant to Dr. M. Brooke Hunter, an orthopedic surgeon. Dr. Hunter examined claimant in June of 1987 and noted that when working for prolonged periods of time, claimant's wrist pain became intense on the "ulnar border of his wrist and he goes numb in the 4th and 5th fingers." (Ex. 2 at 14.) Dr. Hunter noted that claimant should not be performing any heavy lifting. (Id.)

         13. On June 30, 1987, Dr. Hunter made the following note:

Is making slow improvement now that he is not lifting and pushing all the time. Has tried to mow the lawn and so on with his splint but had problems with that. Went thru the results of his EMG and CV which showed some ulnar nerve problems. Explained that I'd like to wait 2-3 months and repeat the studies if he is not making subjective improvement. . . .

(Ex. 15 at 214.)

         14. Dr. Hunter thereafter referred claimant to Dr. Stephen G. Powell, an orthopedic surgeon in Missoula. (Id. at 207.) Dr. Powell examined claimant on August 4, 1987, and entered the following impressions:

(1) a non-union of the ulnar styloid, actually off the distal metaphysis; whether or not this involves the area of attachment of the triangular fibrocartilage is difficult to say clinically.
(2) tenderness over the lunate triquetral joint suggests a possibility of a tear in this area, although X-rays do not indicate this.

(Id. at 208.) He recommended a wrist arthrogram and arthrotomy. (Id.) Arthrotomy is the surgical incision of a joint.

         15. On August 18, 1987, Dr. Powell performed arthroscopic surgery on claimant's wrist. (Ex. 1 at 1.) During the arthroscopy, Dr. Powell fused the triquetral and lunate joints with small fragment screws. (Id.)

         16. Dr. Powell provided follow-up care. On September 4, 1987, he observed: "Wrist looks good S/P arthroscopy with triquetrum to lunate arthrodesis [fusion] and repair of non-union of the styloid." (Id.) He noted again on November 19, 1987, that the x-ray of the styloid looks good but that it is "certainly not totally healed." (Id.) On January 5, 1989, Dr. Powell noted that claimant's wrist was doing very well. (Id.) At that time Dr. Powell recommended that claimant continue working on increasing his range of motion and strength exercises but stop physical therapy. (Id.)

         17. Claimant was off work on account of his injury for 11 months. (Ex. 15 at 564.) In March 1988 he returned to ANR as a truck driver. (Ex. 15 at 580.)

         18. In May of 1989, claimant believed that ANR's Helena business was decreasing, so he applied for a job with Consolidated Freightways (Consolidated). (Id. at 1033.) He was hired and began working for Consolidated as a truck driver. (Id. at 580.)

         19. Claimant worked as a truck driver for Consolidated for approximately two years. (Id. at 581.) Ren Beyer, claimant's supervisor at Consolidated, testified that claimant performed his duties satisfactorily and that claimant "[d]id his job ...


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