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Moldenhauer v. Lumbermens Mutual

Court of Workers Compensation of Montana

June 23, 1997

ELVINA MOLDENHAUER Petitioner
v.
LUMBERMENS MUTUAL Respondent/Insurer for BUTTREY FOOD & DRUG Employer.

          Submitted: February 21, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT\

          Mike McCarter Judge

         Summary: After suffering knee injury at work, 47-year old food store transportation clerk demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included the following activities: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Claimant's vocational expert testified the term "occasionally" means "up to one-third" of the time; respondent's vocational expert testified he considered activity taking less than six percent of work time to be defined as "rarely," but acknowledged that most people in the field consider "occasionally" to mean from 0 to 33 percent of work time. WCC found claimant quit her job due to conflict with a coworker and performed the same duties post-injury, with the exception of moving the mail cart.

         Held: Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-703(3)(d), MCA (1993). 47-year old food store transportation clerk with knee injury demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.
Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-703(6)(a), MCA (1993). 47-year old food store transportation clerk with knee injury demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.
Benefits: Permanent Partial: Labor Capacity. 47-year old food store transportation clerk with knee injury demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.

         The trial in this matter was held on February 21, 1997, in Great Falls, Montana. Petitioner, Elvina Moldenhauer (claimant), was present and represented by Mr. Thomas J. Murphy. Respondent, Lumbermens Mutual (Lumbermens), was represented by Mr. Thomas A. Marra. No transcript of the trial has been prepared.

         Exhibits: Exhibits 1 through 8 were admitted without objection.

         Witnesses and Depositions: Claimant, Michelle Rowe, Margie Gardipee, David Axtman, Bruce Jeffrey, and Rita Mee-Sauke were sworn and testified. In addition the parties submitted depositions of claimant, Rita Mee-Sauke, Michelle Rowe, and David Axtman to the Court for its consideration.

         Issues Presented: Claimant seeks a determination that she is entitled to 15% permanent partial disability benefits for loss of labor activity. She also seeks attorney fees and costs.

         Having 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:

         FINDINGS OF FACT

         1. Claimant is 47 years old and resides in Great Falls, Montana. She has an associate degree in Business Administration from Montana State University, Northern.

         2. Claimant began working for Buttrey Food and Drug (Buttrey) in November of 1992. In February 1994 she became a transportation clerk in Buttrey's transportation department. The transportation department oversees a fleet of semitrailer trucks that ...


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