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McFerran v. Freightways

Court of Workers Compensation of Montana

May 25, 2000

JOHN McFERRAN, Petitioner,
v.
CONSOLIDATED FREIGHTWAYS, Respondent/Insurer/Employer.

          Submitted: February 1, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary:

         57-year-old hostler/driver suffered knee and groin injuries. Physician approved three positions as medically appropriate for claimant: pharmacy delivery driver, bookmobile driver, and newspaper delivery driver. Vocational evidence, including testimony from vocational expert, indicated only one bookmobile job existed but that job had no turnover and that newspaper delivery job was not a job but a business claimant would have to enter.

         Held:

         Injured worker is not PPD if he is capable of performing part-time employment which is substantial and significant. Claimant is not PPD where he can perform pharmacy delivery driver position and that job, though part-time, is substantial and significant.

         Note:

         Montana Supreme Court upheld the standard enunciated by WCC, i.e. ability to perform part-time employment which is substantial and significant precludes finding of PTD status, but found record did not support a finding that pharmacy driver was substantial and significant job where it could involve as few as six hours per week.

         Topic:

Employment: Part Time. Rev'd 2000 MT 365 Injured worker is not permanently totally disabled if he is capable of performing part-time employment which is "substantial and significant." WCC's finding that delivery driver job was "substantial and significant" reversed by S.C. where documentary evidence indicated job could involve as few as six hours per week.

         ¶1 The trial in this matter was held on February 1, 2000, in Billings, Montana. Petitioner, John McFerran (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, Consolidated Freightways (Consolidated), was represented by Mr. Leo S. Ward.

         ¶2 Exhibits: Exhibits 1 through 24, 28 through 30, and 32 through 34 were admitted without objection. Previously made objections to Exhibits 26, 27, and 31 were withdrawn and those exhibits were also admitted. Exhibit 25 was admitted over the objection of claimant.

         ¶3 Witnesses: Claimant, Juanita Hooper Addy, and Calvin Metzger testified. No depositions were submitted.

         ¶4 Issues: The issues, as stated in the Pretrial Order, are as follows:

1.Whether Petitioner is entitled to permanent total disability benefits.
2.Whether Petitioner is entitled to an award of reasonable attorneys' fees and costs from the Respondent.
3.Whether Petitioner is entitled to the 20% penalty from the Respondent.

         ¶5 Having considered the pretrial order, the exhibits, the demeanor and credibility of the witnesses, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         ¶6 Claimant is 57 years old. He is a high school graduate but had difficulty in school.

         ¶7 Claimant has worked for Consolidated for most of his adult life. He started working for Consolidated in 1972. He worked approximately 10 years as a hostler in Consolidated's Billings freight yard. As a hostler he gassed trucks, changed tires, changed out trailers, and moved dollies. The work was heavy, involving lifting of greater than 50 pounds.

         ¶8 During the other years of work for Consolidated, claimant worked as a pickup and delivery driver in the Billings area. In that job he loaded and unloaded goods weighing up to and in excess of 100 pounds.

         ¶9 On April 7, 1990, claimant injured his low back while at work when he was picking up the tongue of a dolly. At the time of his injury he was splitting his time between hostling and pickup and delivery work.

         ¶10 At the time of the 1990 injury, Consolidated was self-insured under Plan I of the Montana Workers' Compensation Act. It accepted liability for the injury.

         ¶11 In 1990 and 1991 the claimant was treated for his back injury primarily by Dr. W.T. Daniels, an orthopedic surgeon. (See Ex. 3 at 9-14.) An MRI of his lumbar spine disclosed dessication of the L4-L5 and L5-S1 disks, and a possible small, but ...


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