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Caplette v. Reliance National Indemnity Co.

Court of Workers Compensation of Montana

October 1, 1998

KEVIN CAPLETTE Petitioner
v.
RELIANCE NATIONAL INDEMNITY COMPANY Respondent/Insurer for BARNARD CONSTRUCTION Employer.,

          Submitted: April 3, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: After recovering from compensable back injury, heavy equipment operator claimed permanent partial disability benefits for loss of lifting capacity and wage loss, as well as entitlement to further rehabilitation benefits.

         Held: Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity and wage loss only if he suffered an actual wage loss because of his injury. Similarly, under section 39-71-1011(2), MCA (1995), claimant is entitled to further rehabilitation benefits only if he proves an actual wage loss as the result of the injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: Montana Code, section 39-71-703, MCA (1995). Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity and wage loss only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Constitutions, Statutes, Regulations and Rules: Montana Code: Montana Code, section 39-71-1011(2), MCA (1995). Under section 39-71-1011(2), MCA (1995), claimant is entitled to further rehabilitation benefits only if he proves an actual wage loss as the result of the injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Benefits: Permanent Partial Benefits: Labor Capacity. Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Benefits: Permanent Partial Benefits: Lost Earning Capacity. Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for wage loss only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Benefits: Rehabilitation Benefits: Proof of Wage Loss. Under section 39-71-1011(2), MCA (1995), claimant is entitled to further rehabilitation benefits only if he proves an actual wage loss as the result of the injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Wages: Wage Loss. Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity and wage loss only if he suffered an actual wage loss because of his injury. Similarly, under section 39-71-1011(2), MCA (1995), claimant is entitled to further rehabilitation benefits only if he proves an actual wage loss as the result of the injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.

         ¶1 The trial in this matter was held on April 3, 1998, in Great Falls, Montana. Petitioner, Kevin Caplette (claimant), was present and represented by Mr. Thomas J. Murphy. Respondent, Reliance National Indemnity Company (Reliance), was represented by Mr. Kelly M. Wills. A transcript has not been made of this proceeding.

         ¶2 Exhibits: Exhibits 1, 2 and 11 through 25 were admitted without objection. Exhibits 3 through 10 were withdrawn. Pages 44 and 71 through 76 of Exhibit 26, were admitted over objection.

         ¶3 Witnesses and Depositions: Claimant, James A. Tilleman, Arlon P. Peda, Judy Ferris, Lee Richardson and Kevin Babcock were sworn and testified. The parties agreed that the Court may consider the depositions of claimant, Kevin Babcock, Lee Richardson and Arlon P. Peda.

         ¶4 Issues Presented: The issues, as set forth by the parties in the Final Pretrial Order, are as follows:

1.Whether the petitioner is entitled to any additional permanent partial disability benefits pursuant to section 39-71-703, M.C.A. (1995). These include factors for lifting (3% - heavy to medium), and wage loss (but the percentage, if any, is disputed).
2.Whether the claimant is entitled to any further rehabilitation benefits.
3.Whether the claimant is entitled to attorneys' fees, costs, and penalty pursuant to section 39-71-611 or 612, M.C.A. (1995).
* * * * *

         ¶5 Having considered the Final Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the parties' arguments, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Claimant is 28 years of age. He is a high school graduate and has one year of college. He also has a certificate in automobile mechanics. ...


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