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Kuykendall v. Liberty Northwest

Court of Workers Compensation of Montana

February 13, 1998

STEVEN KUYKENDALL Petitioner
v.
LIBERTY NORTHWEST Respondent/Insurer for STIMSON LUMBER COMPANY Employer.,

          Submitted: October 14, 1997

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         Summary: Claimant, a plugger operator for a plywood mill, was injured during a fight at work. He was also discharged because of the fight. In an previous hearing, the WCC found the injury compensable. Now, claimant requests temporary total or temporary partial disability benefits for periods after the injury and before he reached maximum medical healing. The parties stipulated that claimant worked at various temporary positions following his discharge, but at lesser wage rates.

         Held: While the Court believed claimant would have tried to perform his time-of-injury job if he had not been fired, persuasive medical and vocational evidence indicates he was not capable of performing that job post-injury. He has never been released to return to preinjury employment or to employment with similar characteristics. By proving he was medically/vocationally unable to return to his time-of-injury job or to work with similar characteristics, claimant has proven his entitlement to temporary total disability benefits for those periods pre-MMI when he was not working. For those periods pre-MMI when he worked at lesser paying jobs, he is entitled to temporary partial disability benefits.

         Topics:

Benefits: Temporary Partial Benefits. By proving he was medically/vocationally unable to return to his time-of-injury job or to work with similar characteristics, claimant has proven his entitlement to temporary total disability benefits for those periods pre-MMI when he was not working. For those periods pre-MMI when he worked at lesser paying jobs, he is entitled to temporary partial disability benefits.
Benefits: Temporary Total Benefits. By proving he was medically/vocationally unable to return to his time-of-injury job or to work with similar characteristics, claimant has proven his entitlement to temporary total disability benefits for those periods pre-MMI when he was not working. For those periods pre-MMI when he worked at lesser paying jobs, he is entitled to temporary partial disability benefits.

         Introduction

         ¶1 This is the second proceeding involving a dispute arising out of an elbow injury that claimant, Steven Kuykendall, suffered in a fight on May 23, 1996 with a co-employee. At the time of his injury, claimant was employed as a plugger for Stimson Lumber Company (Stimson) at its mill in Bonner, Montana. In the previous case, Kuykendall v. Liberty Northwest, WCC No. 9611-7646 (Kuykendall I), this Court determined that claimant's left elbow injury was compensable.

         ¶2 This present case concerns whether claimant is entitled to temporary total disability benefits and/or temporary partial disability benefits due to his injury.

         ¶3 The trial in this matter was held October 14, 1997, in Missoula, Montana. Steven Kuykendall was present and represented by Mr. Rex Palmer. Respondent, Liberty Northwest, was represented by Mr. Larry W. Jones.

         ¶4 Exhibits: Exhibits 1 through 13 were admitted without objections.

         ¶5 Witnesses and Depositions: The parties agreed that the depositions of Steven Kuykendall, Jason Miller, Bryan Erhart, Jeff Verworn and Dr. J.A. Evert can be considered part of the record. Steven Kuykendall, Betsy Hart, and Bill Cady were sworn and testified.

         ¶6 Stipulation and Partial Bench Ruling: Mr. Jones stipulated to the dollar amounts and places of employment of the claimant as recited in Mr. Palmer's opening statement. The Court resolved one issue, that being that if the claimant had been allowed to returned to his job as plugger, he would have attempted to do the job.

         ¶7 Issue: The Pretrial Order sets forth the following issue:

Whether Petitioner is entitled to temporary total disability benefits and/or temporary partial disability benefits due to the injury to his elbow.

(Pretrial Order at 2.)

         ¶8 Having considered the pretrial order, the trial testimony, the demeanor and credibility of the witnesses, the exhibits, depositions, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶9 The facts of this case were set out in detail in this Court's Findings of Fact, Conclusions of Law and Judgment in Kuykendall I. In summary, prior to his May 23, 1996 injury, claimant worked at Stimson's plywood mill in Bonner, Montana. During the nine months prior to his injury, he worked as a "plugger" operator, fixing defects, such as knots, in plywood veneer sheets. On May 23, 1996, after much goading, a fight ensued between claimant and another Stimson employee. In the fight claimant hit his elbow on the floor.

         ¶10 Following the fight claimant was taken to the first-aid room at Stimson. Later he was taken to the St. Patrick Hospital Emergency Room, where he was treated for a left elbow contusion and possible bursal rupture.

         ¶11 Stimson fired claimant for fighting. Claimant grieved the firing but was unsuccessful in getting his job back.

         ¶12 The Court is persuaded that despite his elbow injury the claimant would have attempted to return to his plugger job had Stimson continued his employment. However, he was never provided with that opportunity.

         ¶13 Following termination of his employment and the denial of his workers' compensation claim, claimant sought other employment so he could support himself and his young son. (Kuykendall Trial Test.) He applied for a number of jobs, some for which he was not remotely qualified, such as a bookkeeper for Missoula Federal Credit Union (Kuykendall Dep. at 42). Claimant was ...


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