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Bratcher v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

October 22, 1997

GERMAINE M. BRATCHER Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurer for NOVCO, INCORPORATED Employer.

          Submitted: September 30, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: 40-year old parts-runner for auto parts store was injured in automobile accident while making a delivery. Because the job involved heavy lifting, and post-injury restrictions precluded heavy lifting, claimant could not return to her time-of-injury work. After a period in which she did not seek work, claimant began working as a housekeeper, making $5.25 an hour. The parts-runner position paid $6.25 an hour. The parties dispute her entitlement to permanent partial disability benefits for wage loss under section 39-71-703(1)(a), MCA (1995).

         Held: Claimant is not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.

         Topics:

Benefits: Permanent Partial Benefits: Lost Earning Capacity. Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71- 703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.
Vocational - Return to Work Matters: Employability. Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.
Wages: Wage Loss. Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.

         The trial in the above-entitled matter was held on September 30, 1997, in Helena, Montana. Petitioner, Germaine Bratcher (claimant), was present and represented by Mr. Cameron Ferguson. Respondent was represented by Mr. Larry W. Jones.

         Exhibits: Exhibits 1 through 4 were admitted without objection.

         Witnesses and Depositions: The parties agreed that the depositions of the claimant and Dr. Ronald M. Peterson can be considered part of the record. Petitioner, Germaine Bratcher and Colleen M. Lordemann were sworn and testified.

         Issues:

1.Whether the Petitioner is due a permanent, partial disability settlement relating to her injury of November 30, 1995 upon the grounds that she has sustained a wage loss, which she claims, pursuant to Section 39-71-703(1)(a).
2.The amount Petitioner is due for a permanent partial disability settlement.
3.Whether Petitioner is entitled to costs.

(Pretrial Order at 2.)

         At the close of the petitioner's case, a directed ruling was made finding that the insurer's denial of wage-loss benefits was not unreasonable and that petitioner is not entitled to attorney fees. A penalty was not requested.

         FINDINGS OF FACT

         1. The claimant is 40 years old. She is a high school graduate and has two children ages 12 and 16. She lives in Vaughn, Montana, which is near Great Falls.

         2. Over the years, claimant has worked as a waitress, a dining room manager, a cashier/checker, a hostess, and a shipping and receiving clerk, and a parts runner for an auto parts store.

         3. In 1989 the claimant went to work for Novco, Incorporated (Novco) in Great Falls, Montana. Novco is an auto parts store. She initially worked as a parts runner, then in 1990 she worked as a shipping and receiving clerk. From 1991 to November 1995, she worked as a parts runner.

         4. Claimant's job duties as a parts runner included retrieving auto parts from the parts store, loading them into a car or truck, and delivering them to customers. Some auto parts, such as batteries and cases of oil and antifreeze, weighed in excess of 50 pounds.

         5. On November 30, 1995, claimant was involved in an automobile accident while working in the course and scope of her employment with Novco. A Suburban collided with the passenger side of the pickup ...


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