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Moldenhauer v. Lumbermens Mutual

Court of Workers Compensation of Montana

September 4, 1997

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

          Submitted: August 11, 1997

          ORDER DENYING PETITIONER'S ALTERNATIVE MOTIONS FOR REHEARING OR FOR RECONSIDERATION

          MIKE MCCARTER JUDGE.

         Summary: On request for reconsideration, claimant argued the Court should have awarded her permanent partial disability benefits under section 39-71-703(3)(d), MCA (1993), because her doctor opined she could not engage in heavy lifting post-injury and the Court found she had engaged in heavy lifting pre-injury.

         Held: The heavy lifting performed by claimant pre-injury involved carrying boxes of copy paper and bankers boxes a few times a year and once a week assisting in carrying a mail cart. While it stretches common sense to characterize her work as involving heavy lifting where such lifting was so infrequent, the Court did find her job to include heavy lifting because this lifting was performed on occasion. The Court reaffirms its original conclusion, that claimant is not entitled to PPD benefits for loss of heavy lifting capacity where she continued to perform similar heavy lifting post-injury. While medical opinion recommended against that performance, she continued to lift occasionally and did not quit work on account of lifting capacity.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703(3)(d), MCA (1993). Where claimant performed similar very infrequent heavy lifting both before and after injury, she was not entitled to permanent partial disability benefits for loss of lifting capacity, even though her doctor opined she could not perform heavy lifting.
Benefits: Permanent Partial Benefits: Labor Capacity. Where claimant performed similar very infrequent heavy lifting both before and after injury, she was not entitled to permanent partial disability benefits for loss of lifting capacity, even though her doctor opined she could not perform heavy lifting.

          The petitioner (claimant) has moved, in the alternative, for a rehearing or for reconsideration of the Findings of Fact, Conclusions of Law and Judgment entered by the Court on June 23, 1997. (Request for Rehearing/reconsideration and Supporting Brief.) However, as the text of her argument demonstrates, she is seeking reconsideration only. She asks the Court to reconsider (1) the 2% age factor, § 39-71-703(3)(a), MCA (1993), and (2) the finding that she was performing heavy labor after her injury.

         In its response to the request, the respondent, Lumbermens Mutual (Lumbermens), acknowledges that the Court overlooked the 2% age factor requested by claimant but states that Lumbermens has agreed to pay the 2% age factor to claimant. (Respondent's Response to Petitioner's Request for Rehearing at 2.) It therefore urges that the age factor issue is moot and represents that "[p]etitioner's counsel has requested the Respondent to advise the Court that it does not need to address this issue as well." (Id.) Accepting Lumbermens' representation, the Court will consider only the second of the two issues raised by claimant.

         Discussion

         In its Findings of Fact, Conclusions of Law and Judgment, this Court determined that claimant is not entitled to compensation on account of a reduction in her laboring capacity. That determination was rooted in factual findings that claimant was performing heavy labor both before and after her injury, and therefore does not qualify for benefits under section 39-71-703(3)(d), MCA (1993). Petitioner challenges the determination on two grounds. First, she argues that the Court should be bound by her physician's opinion restricting her lifting to less than heavy. Second, she urges that the insurer never argued that she is performing heavy lifting post-injury and that the Court therefore went beyond the issues stated in the Pre-trial Order. I am unpersuaded by either argument.

         This case involves the application of section 39-71-703(3)(d), MCA (1993), which provides that where a worker "was performing heavy labor activity" at the time of the injury and "can perform only medium labor activity" after the injury, she is entitled to 15% of 350 weeks of permanent partial disability benefits, i.e., 52.5 weeks of benefits.[1]

         Heavy labor is defined as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." § 39-71-703(6)(a), MCA (1993).

         The Court's findings of fact determined that prior to her injury the claimant occasionally, albeit infrequently, lifted more than 50 pounds. Specifically, three or four times a year she lifted boxes of copy paper which were just over 50 pounds. On occasion she also lifted bankers boxes exceeding 50 pounds. Finally, once a week she helped carry a cart of mail up a set of stairs. The cart generally weighed 100 to 120 pounds, thus claimant's load was 50 or more pounds. Post-injury, claimant's personal physician restricted claimant to lifting no greater than 50 pounds occasionally (ex. 1 at 1 and 4); however, following her return to work, and for approximately a year and one-half thereafter, claimant continued to lift the ...


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