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Huffman v. Twin City Fire Insurance Co.

Court of Workers Compensation of Montana

November 16, 1998

ROGER HUFFMAN Petitioner
v.
TWIN CITY FIRE INSURANCE COMPANY Respondent/Insurer for BON BON ENTERPRISES Employer.,

          Submitted: May 19, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         Summary: 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the reduction in his lifting capacity from heavy to medium has caused him to lose the ability to work in higher paying jobs. Issues presented involved entitlement to permanent partial disability benefits for wage loss, rehabilitation benefits, attorneys fees, and penalty.

         Held: Claimant's physical restrictions post-injury establish his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). On a long term basis - one year and more - claimant has suffered a wage loss exceeding $2.00 an hour because of his injury. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan. Penalty is awarded on what was due claimant for physical restrictions, but attorneys fees are not awarded on that portion because that issue did not go to hearing, given the insurer's pretrial concession. See, section 39-71-612, MCA (1993.) Penalty and attorneys fees are not awarded on other benefits ordered where the insurer's denial was not unreasonable.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-123(3), MCA (1993). 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis - one year and more - claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-612, MCA (1993). Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but attorneys fees are not awarded on that portion because that issue did not go to hearing, given the insurer's pretrial concession. See, section 39-71-612, MCA (1993.) Penalty and attorneys fees are not awarded on other benefits ordered where the insurer's denial was not unreasonable.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA (1993). 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the reduction in his lifting capacity from heavy to medium has caused him to lose the ability to work in higher paying jobs. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA (1993). The fact that a claimant has returned to a job other than the time-of-injury job upon reaching MMI does not necessarily terminate the claimant's eligibility for rehabilitation benefits where the evidence indicates claimant has in fact suffered a wage loss. While the legislature intended a quick return to work, that does not foreclose entitlement to rehabilitation benefits without consideration to whether retraining will improve claimant's position in the job market, even though he might be able to obtain some employment without retraining. Denying rehabilitation benefits to disabled workers who find immediate employment upon reaching MMI would discourage an early return to work and would force workers to remain idle in cases where the insurer disputes their entitlement to rehabilitation benefits.

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-2907, MCA (1993). Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but not awarded on other benefits ordered where the insurer's denial of those benefits was reasonable given the status of the facts and applicable law.

         Attorneys Fees: Cases Denied. Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but attorneys fees are not awarded on that portion because that issue did not go to hearing, given the insurer's pretrial concession. See, section 39-71-612, MCA (1993.) Penalty and attorneys fees are not awarded on other benefits ordered where the insurer's denial was not unreasonable.

         Attorneys Fees: Unreasonable Denial or Delay of Payment. Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but attorneys fees are not awarded on that portion because that issue did not go to hearing, given the insurer's pretrial concession. See, section 39-71-612, MCA (1993.) Penalty and attorneys fees are not awarded on other benefits ordered where the insurer's denial was not unreasonable.

         Benefits: Permanent Partial Benefits: Labor Capacity. 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Claimant's physical restrictions post-injury establish his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks

         Benefits: Permanent Partial Benefits: Lost Earning Capacity. 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis - one year and more - claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.

         Benefits: Rehabilitation Benefits: Generally. 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the reduction in his lifting capacity from heavy to medium has caused him to lose the ability to work in higher paying jobs. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan.

         Benefits: Rehabilitation Benefits: Generally. The fact that a claimant has returned to a job other than the time-of-injury job upon reaching MMI does not necessarily terminate the claimant's eligibility for rehabilitation benefits where the evidence indicates claimant has in fact suffered a wage loss. While the legislature intended a quick return to work, that does not foreclose entitlement to rehabilitation benefits without consideration to whether retraining will improve claimant's position in the job market, even though he might be able to obtain some employment without retraining. Denying rehabilitation benefits to disabled workers who find immediate employment upon reaching MMI would also discourage an early return to work and would force workers to remain idle in cases where the insurer disputes their entitlement to rehabilitation benefits.

         Benefits: Rehabilitation Benefits: Early Return to Work. The fact that a claimant has returned to a job other than the time-of-injury job upon reaching MMI does not necessarily terminate the claimant's eligibility for rehabilitation benefits where the evidence indicates claimant has in fact suffered a wage loss. While the legislature intended a quick return to work, that does not foreclose entitlement to rehabilitation benefits without consideration to whether retraining will improve claimant's position in the job market, even though he might be able to obtain some employment without retraining. Denying rehabilitation benefits to disabled workers who find immediate employment upon reaching MMI would discourage an early return to work and would force workers to remain idle in cases where the insurer disputes their entitlement to rehabilitation benefits.

         Benefits: Rehabilitation Benefits: Proof of Wage Loss. A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). On a long term basis - one year and more - claimant has suffered a wage loss exceeding $2.00 an hour because of his injury. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan.

         Benefits: Rehabilitation Benefits: Rehabilitation Plans. A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the reduction in his lifting capacity from heavy to medium has caused him to lose the ability to work in higher paying jobs. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan.

         Penalties: Insurers. Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but not awarded on other benefits ordered where the insurer's denial of those benefits was reasonable given the status of the facts and applicable law.

         Wages: Prospect of Employment. A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis - one year and more -claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.

         Wages: Wage Loss. A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis - one year and more - claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.

         ¶1 The trial in this matter was held on May 6, 1998, in Helena, Montana. Petitioner, Roger Huffman (claimant), was present and represented by Mr. Rex Palmer. Respondent, Twin City Fire Insurance Company (Twin City), was represented by Mr. William O. Bronson. At the conclusion of the trial, the Court permitted claimant's attorney time to review printouts of Twin City's electronic records pertaining to this case. The Court received notice on May 19, 1998 that the review had been completed and that the case should be deemed submitted as of that date.

         ¶2 Exhibits: Exhibits 1 through 15 and 50 through 80 were admitted without objection. There were no Exhibits 16 through 49.

         ¶3 Witnesses: Linda Slavik and claimant were sworn and testified.

         ¶4 Partial Bench Ruling: At the conclusion of the trial, the Court issued a partial bench ruling ordering a penalty paid as to the physical restrictions issue; a further rehabilitation evaluation; and at least a 10% wage loss.

         ¶5 Issues Presented: The issues, as restated by the Court, are as follows:

• Whether claimant is entitled to a penalty and attorney fees with respect to benefits paid for physical restrictions.
• Whether claimant is entitled to wage loss benefits pursuant to section 39-71 -703(3)(c), MCA (1993). If so, in what amount?
• Whether claimant is entitled to rehabilitation benefits.
• Whether claimant is entitled to a penalty and attorney fees with respect to any wage loss and rehabilitation benefits which may be awarded by the Court.

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

         FINDINGS OF FACT

         I. Claimant and His Work History

         ¶7 Claimant is currently 48 years of age. (Ex. 5.) He has two years of college. (Ex. 55a at 133.)

         ¶8 Claimant has worked as a driver, flagger, delivery driver for a linen supply company, delivery driver of office supplies, tree thinner and carpet layer/house remodeler. (Id.)

         ¶9 Since 1991, claimant has worked as a driver in the movie and television industry. His employment has been on specific movie and television productions. He has been hired anew on each new movie or project.

         ¶10 Prior to his industrial injury, claimant supplemented his income, when not working on a movie, by working as a general laborer on road construction and at other jobs.

         II. Industrial Injury

         ¶11 During the summer of 1993, the claimant was employed by Bon Bon Enterprises (Bon Bon) on the set of Lonesome Dove, a movie which was being filmed, at least in part, in Yellowstone County, Montana. Claimant was employed as a truck driver.

         ¶12 On August 19, 1993, while working on the Lonesome Dove set, claimant injured his left shoulder while lifting a 200-pound tailgate on a 5-ton truck.

         III. Acceptance of Claim for Compensation

         ¶13 On September 23, 1993, Bon Bon filed an Employers' First Report of Injury. (Ex. 4.) On May 26, 1994, claimant completed and submitted a Claim for Compensation. (Ex. 5.)

         ¶14 At the time of claimant's injury, Bon Bon was insured by Twin City. Twin City accepted liability for the claim.

         IV. Medical Treatment

         ¶15 Claimant was initially treated for his injury by Dr. Patrick R. Robins, an orthopedic surgeon. (Ex. 1.) Dr. Robins referred claimant to Dr. Stephen G. Powell, who is also an orthopedic surgeon.

         ¶16 Dr. Powell initially treated claimant conservatively with physical therapy and injections in the shoulder. (Ex. 2.) He concluded that claimant suffered from "subacromial impingement and acromioclavicular joint internal derangement" of his left shoulder. (Id. at 15.) On May 25, 1994, he performed surgery to correct the conditions. (Id.)

         V. Impairment Rating and Release to Return to Work

         ¶17 On October 12, 1994, Dr. Powell found claimant to be at maximum medical improvement. (Ex. 2 at 25.) He rated claimant's impairment at 7% and released him to return to work as a driver. His office note, which was forwarded to the insurer, states:

He is released to work as a driver. This is moderate physical labor and not extremely heavy. Those types of work are not within his ...

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