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McGillis v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 2, 1998

EDWARD STEVE McGILLIS Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BUSH DÉCOR & FIXTURE Employer.

          Date Submitted: September 14, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 39-year old laborer with eighth grade education suffered low back injury at work and was restricted to light duty labor. Parties disputed the degree of disability sustained by claimant for purposes of permanent partial disability benefits. Claimant also wanted a penalty and attorney's fees for an alleged unreasonable refusal to pay benefits.

         Held: Although earlier evidence indicated claimant could perform medium labor, insurer conceded light duty restriction at trial, entitling claimant to a 5% award under section 39-71-703(5)(d), MCA (1995). WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. In reaching this conclusion, Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. Here, while claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket. The parties' dispute over an impairment rating is resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors in this case was not persuasive in comparison to the testimony provided by two medical doctors. Attorney fees and penalty were awarded only with respect to the 10% wage loss which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-612, MCA (1995). Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703(5)(c), MCA (1995). Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA (1995). Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Attorney Fees: Cases Awarded. Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Attorney Fees: Unreasonable Denial or Delay of Payment. Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Benefits: Permanent Partial Benefits: Lost Earning Capacity. Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.

         Benefits: Impairment Awards. The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.

         Impairment: Impairment Ratings. The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.

         Penalties: Insurers. Attorney fees and penalty were awarded only with respect to the 10% wage loss (PPD benefits) which the insurer conceded at trial and should have conceded earlier based on the evidence.

         Physicians: Chiropractors. The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.

         Physicians: Conflicting Evidence. The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.

         Proof: Conflicting Evidence: Medical. The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.

         Wages: Wage Loss. Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.

         ¶1 The trial in this matter was held on September 14, 1998, in Great Falls, Montana. Petitioner, Edward Steve McGillis (claimant), was present and represented by Mr. Robert C. Kelleher, Sr. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. David A. Hawkins.

         ¶2 Exhibits: Exhibits A through Z were admitted without objection. Exhibits attached to the depositions of Robert L. Larson, D.C., Dr. Stephanie L. Herder and Dr. Patrick E. Galvas were also admitted without objection.

          ¶3 Witnesses and Depositions: The claimant, Majorie Lynn McGillis, Dr. W. Patrick Pardis, Dr. Patrick Galvas and Stacie Lee Sheldon were sworn and testified. The parties agreed that the Court may consider the depositions of Dr. Stephanie L. Herder, Dr. Patrick E. Galvas and Robert L. Larson, D.C.

         ¶4 Issues Presented: The issues, as set forth by the parties in the Pre-trial Order, and as agreed by the parties and the Court at the time of trial, are as follows:

1.The degree of disability sustained by claimant within the meaning of section 39-71-703, MCA (1995).
2.Whether claimant is entitled to attorney's fees, costs, and penalty pursuant to section 39-71-611 -612 and -2907, MCA (1995).

         ¶5 Having considered the Pre-trial 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 presently 39 years old. Claimant has only an eighth grade education.

         ¶7 Claimant has worked as a laborer, an automotive detailer, a warehouseman and as a lawn care maintenance worker. From 1991 until his 1995 injury he worked as a laborer. He is a union member and his laboring jobs have been obtained through the union.

         Industrial Injury

         ¶8 On November 11, 1995, claimant was dismantling a temporary pharmacy at a Buttrey Foods store when a several hundred pound beam fell onto his back and shoulders. He bore the weight of the beam for several seconds. (Trial Test.) Following that event, he continued to work, however, shortly after the incident, while carrying a load of plywood, he slipped and fell on his behind. As a result of the accident claimant suffered an injury to his lower back.

         ¶9 At the time of his injury, claimant was employed as a laborer for Bush Décor & Fixture, Incorporated (Bush).

         ¶10 Bush was insured by the State Fund. Claimant submitted a claim for compensation to the State Fund and it accepted liability for his claim. The State Fund thereafter commenced paying medical and temporary total disability benefits.

         Permanent Partial Disability

         I. Labor Restriction

         ¶11 At the time of his injury, claimant's job required heavy labor. While earlier evidence indicated that claimant could perform medium labor, at trial the State Fund conceded that claimant is entitled to a 5% award based on a restriction to light labor activity. § 39-71-703(5)(d), MCA (1995).

         II. Lost Wages

         ¶12 Claimant's wage at the time of his injury was $13.55 an hour and he was a full-time worker.

         ¶13 Following his injury, claimant received temporary total disability benefits until September 30, 1997, on which date he became employed by Foster Wheeler (Foster) to do janitorial work. He obtained the job through his union.

         ¶14 Claimant worked as a janitor until April 1998, when Foster lost its contract on the project where claimant was working.

         ¶15 While working for Foster, claimant earned $13.10 an hour.

         ¶16 Since his job with Foster ended, claimant has obtained approximately five, one day, light-duty jobs. (Trial Test.) As with his time-of-injury and his Foster jobs, his employment has been obtained through his union. (Id.)

         ¶17 Claimant's average hourly wage for his post-Foster light-duty work was $12.40. (Id.)

         ¶18 Because of claimant's education, his prior work experience, and the labor restrictions placed upon him by Dr. Galvas, his job market is limited. While he obtained full-time employment for a few months, he has been unable to find full-time work since April 1998, and I am satisfied that the Foster job was more in the nature of a lucky break than an indication of regular availability of high-paying janitorial positions.

         ¶19 Claimant's testimony established that as a heavy laborer he was able to regularly obtain full-time work.

         ¶20 Over a one-year period, claimant has suffered a wage loss of greater than $2.00 an hour due to his inability to find employment. On a long-term, full-time basis claimant can reasonably expect to obtain work paying only $5.50 to $8.00 an hour. (Trial Test.; Exhibit H at 92.) Claimant is therefore entitled to 20% for wage loss.

         III. Treatment and Impairment Rating by Dr. Galvas

         ¶21 After his injury, claimant was initially treated by Dr. Tim Six, a chiropractor in Great Falls. (Ex. K.) He received approximately 18 treatments, which provided him only some initial relief.

         ¶22 On February 6, 1996, claimant sought care from Dr. Patrick Galvas, who is a physiatrist. Dr. Galvas is board certified in physical medicine and rehabilitation. He became claimant's treating physician.

         ¶23 On February 6, 1996, claimant complained of low-back pain. Dr. Galvas' physical examination of claimant's cervical and thoracic area was negative. (Ex. A at 4, 57.)

         ¶24 Dr. Galvas thereafter saw claimant 23 times. The last examination was on June 11, 1998. His final and current diagnosis of claimant's low-back condition is sacroiliac joint dysfunction and myofascial low-back pain. (Trial Test.)

         ¶25 Dr. Galvas declared claimant at maximum medical improvement (MMI) on June 26, 1996, and gave him an impairment rating of 5% of the whole person. (Ex. A at 18.) Dr. Galvas found no objective evidence of radiculopathy. (Id. at 21.) He testified that based upon the AMA guides, claimant fit under DRE Lumbosacral Category II: Minor Impairment. American Medical Association, Guides to the Evaluation of Permanent Impairment [Ama Guides] at 102 (4th ed. 1993). Category II provides for a 5% impairment of the whole person. (Id.)

         ¶26 In September of 1996, the claimant complained of pain in his legs. Dr. Galvas ordered a EMG nerve conduction study on the claimant. The EMG showed acquired sensory motor polyneuropathy. Claimant had been diagnosed with diabetes in May 1996. The EMG results were consistent with claimant's diabetic condition and Dr. Galvas attributed ...


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