Submitted: February 1, 2000
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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
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.
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.
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.
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made objections to Exhibits 26, 27, and 31 were withdrawn and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.
Witnesses: Claimant, Juanita Hooper Addy, and Calvin
Metzger testified. No depositions were submitted.
Issues: The issues, as stated in the Pretrial Order,
are as follows:
1.Whether Petitioner is entitled to permanent total
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
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:
Claimant is 57 years old. He is a high school graduate but
had difficulty in school.
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.
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.
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.
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.
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 ...