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Hale v. Logging

Court of Workers Compensation of Montana

December 1, 1998

WESLEY HALE Petitioner
v.
ROYAL LOGGING Respondent/Insurer/Employer.

          Date Submitted: September 1, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary: Logging worker filed petition to obtain permanent partial disability benefits based on 1976 back injury. Claimant had continued work in the logging industry for 20 years after the 1976 injury, but argued he lost earning capacity as the result of that injury and was entitled to PPD benefits on that basis under applicable law.

         Held: Claimant did not prove entitlement to permanent partial disability benefits under section 92-703.1, RCM (1975) where he testified he worked in pain, but worked smarter to keep up, and did not quantify any amount of lost earning capacity. [Note: WCC reversed on this determination in Hale v. Royal Logging, 1999 MT 302.]

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 92-703.1, RCM (1975). Claimant did not prove entitlement to permanent partial disability benefits under section 92-703.1, RCM (1975) where he testified he worked in pain, but worked smarter to keep up, and did not quantify any amount of lost earning capacity. [Note: WCC reversed on this determination in Hale v. Royal Logging, 1999 MT 302.]
Benefits: Permanent Partial Benefits: Lost Earning Capacity. Claimant did not prove entitlement to permanent partial disability benefits under section 92-703.1, RCM (1975) where he testified he worked in pain, but worked smarter to keep up, and did not quantify any amount of lost earning capacity. [Note: WCC reversed on this determination in Hale v. Royal Logging, 1999 MT 302.]

         ¶1 The trial in this matter was held on September 1, 1998, in Kalispell, Montana. Petitioner, Wesley Hale (claimant), was present and represented by Ms. Laurie Wallace. Respondent, Royal Logging (Royal), was represented by Mr. Andrew J. Utick.

         ¶2 Exhibits: Exhibits 1 through 8 and 10 were admitted without objection. Exhibit 9 was objected to and admitted. Additional exhibits attached to depositions were also admitted without objection.

         ¶3 Witnesses and Depositions: Wesley Hale, Michael Helms and Mark J. Schwager were sworn and testified. In addition, the parties agreed the Court may consider the depositions of the claimant, Michael Helms, Mark J. Schwager and Dr. John W. Hilleboe.

         ¶4 Issues Presented: The following issues, as restated by the Court, are raised in the Pretrial Order:

1.Whether claimant is entitled to permanent partial disability benefits pursuant to section 39-71-703, MCA (1975).
2.Whether claimant is entitled to a penalty.
3.Whether claimant is entitled to reasonable attorney fees and costs.

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

         FINDINGS OF FACT

         ¶6 Claimant is presently sixty-three years old. He has a high school education.

         ¶7 Except for a four-year period following high school, claimant has worked his entire adult life in the timber industry, mostly as a sawyer. He ceased working in 1997, when he was 62 years old.

         ¶8 Claimant began working in the timber industry in 1958, in Northern California. He initially worked setting chokers and then bucking lumber. He continued in that line of work until approximately 1964.

         ¶9 In 1964 he moved to Whitefish, Montana, and went to work for Orville Parker (Parker). He was hired by Parker as a sawyer and ...


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