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Holcomb v. Montana Municipal Insurance Authority & Subsequent Injury Fund

Court of Workers Compensation of Montana

December 2, 1997

DAVID R. HOLCOMB Appellant
v.
MONTANA MUNICIPAL INSURANCE AUTHORITY & SUBSEQUENT INJURY FUND Respondents.

          Date Submitted: July 25, 1997

          DECISION AND ORDER ON APPEAL

          MIKE McCARTER, JUDGE

         Summary: 46-year old former truck driver/laborer with the City of Missoula Street Department claimed wage supplement benefits under section 39-71-703, MCA (1987). Because the Subsequent Injury Fund was potentially liable, the matter was heard before a hearing officer of the Department of Labor pursuant to section 39-71-910, MCA (repealed in 1997). The hearing officer determined claimant was not entitled to wage supplement benefits and he appealed.

         Held: Under section 2-4-704(2), MCA, this Court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The Court looks to whether the administrative findings, inferences, conclusions, or decisions are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." The hearing officer's finding that claimant is presently qualified to earn the same wage as his time-of-injury wage, and is thus not entitled to wage-loss benefits, is supported by the record. With the exception of time off for brief layoffs, and to recover from medical treatment, claimant remained in employment with the same employer from his injury in 1987 until he resigned in 1996, to move to Bozeman, where his wife accepted a promotion with her employer. Although claimant argued he retained employment with the City of Missoula at his time-of-injury wage rate, and higher rates, only because the employer accommodated his condition, evidence indicated otherwise. There was also evidence that claimant is competitive for similar jobs in Bozeman once those positions come open. Appeal denied.

         Topics:

Appeals (To Workers' Compensation Court): Generally. A 46-year old former truck driver/laborer with the City of Missoula Street Department claimed wage supplement benefits under section 39-71-703, MCA (1987). Because the Subsequent Injury Fund was potentially liable, the matter was heard before a hearing officer of the Department of Labor pursuant to section 39-71-910, MCA (repealed in 1997), then appealed to the WCC. Under section 2-4-704(2), MCA, this Court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The Court looks to whether the administrative findings, inferences, conclusions, or decisions are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." The hearing officer's finding that claimant is presently qualified to earn the same wage as his time-of-injury wage, and is thus not entitled to wage-loss benefits, is supported by the record.
Wages: Wage Loss. A 46-year old former truck driver/laborer with the City of Missoula Street Department claimed wage supplement benefits under section 39-71-703, MCA (1987). Because the Subsequent Injury Fund was potentially liable, the matter was heard before a hearing officer of the Department of Labor pursuant to section 39-71-910, MCA (repealed in 1997), then appealed to the WCC. The hearing officer's finding that claimant is presently qualified to earn the same wage as his time-of-injury wage, and is thus not entitled to wage-loss benefits, is supported by the record. With the exception of time off for brief lay-offs, and to recover from medical treatment, claimant remained in employment with the same employer from his injury in 1987 until he resigned in 1996, to move to Bozeman, where his wife accepted a promotion with her employer. Although claimant argued he retained employment with the City of Missoula at his time-of-injury wage rate, and higher rates, only because the employer accommodated his condition, evidence indicated otherwise. There was also evidence that claimant is competitive for similar jobs in Bozeman once those positions come open. Appeal denied.

         Appellant, David R. Holcomb (claimant), appeals from the decision of the Department of Labor and Industry (Department) denying his claim for wage supplement benefits under section 39-71-703, MCA (1987).

         Factual Background

         1. Claimant is 46 years old and has received a Graduate Equivalency Diploma (GED). As a child, claimant injured his right hand in a gun accident. The accident left claimant with a deformed hand, significant scarring, and a fused wrist.

         2. Claimant suffered a compensable industrial injury to his right hand on July 1, 1987, while employed by the City of Missoula Street Department. The injury occurred when claimant threw a heavy grating. He experienced pain over the ulnar aspect of his right wrist, tingling in the palm of his hand and numbness to the small and ulnar side of the ring finger. (MMIA Exs. 1, 4.)

         3. Following his injury, claimant saw Dr. Mark F. Rotar, an orthopedic surgeon, on July 2, 1987, and Dr. Rotar was thereafter claimant's primary treating physician. Dr. Rotar treated claimant conservatively for approximately seven months. When claimant's wrist did not improve significantly, Dr. Rotar referred claimant to Dr. Donald E. Murray, a hand specialist, for a second opinion. (Claimant's Ex. 1, Dr. Rotar's Office Notes of February 9, 1988.) Dr. Murray performed surgery on claimant's right hand in February 1988 and again in October 1991.

         4. At the time of his injury, claimant was working for the City of Missoula Street Department as a truck driver/laborer earning $10.36 per hour. With the exception of brief layoffs in 1987 and 1988, time taken to heal from his wrist surgeries in February 1988 and October 1991, and time off for a couple of other work-related injuries, claimant was continuously employed by the City of Missoula Street Department as a truck driver/laborer from August 1982 until May 1996. Claimant's last position was as an assigned truck driver/laborer, a position he bid into under the union seniority system applicable to the Street Department.

         5. In May 1996, claimant voluntarily resigned his position with the Missoula Street Department to move to Bozeman with his wife, who had received a job promotion that resulted in her transfer to Bozeman. At the time of his resignation, claimant was earning $12.95 per hour, plus an additional $48.00 per month longevity pay. Claimant presently resides in Bozeman.

         6. Prior to his resignation from the City of Missoula, claimant contacted the City of Bozeman Department of Public Services, Street Division, to inquire into similar employment as he had in Missoula. No full-time positions were available. Claimant therefore applied for and was hired as a seasonal laborer with the Bozeman Street Department for the street maintenance season. He was rehired for and worked the 1997 season. His wages as a seasonal laborer are less than what he was earning as a permanent employee of the Missoula Street Department.

         7. Further facts are set forth in the discussion part of this opinion.

         Proceedings ...


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