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Paul v. Transportation Insurance Co.

Court of Workers Compensation of Montana

October 7, 2004

CLAUDE PAUL Petitioner
v.
TRANSPORTATION INSURANCE COMPANY Respondent/Insurer.

          Submitted: June 10, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE.

         Summary: This is an asbestosis case arising out of W. R. Grace's operation of a mine near Libby, Montana. The claimant worked at the mine until he retired in 1988 at the age of 64. His retirement was unrelated to his asbestosis, which did not manifest itself until many years later. However, he is now suffering from the ravaging effects of his asbestos exposure at the mine. He has been paid an impairment award of 50% on account of his disease but seeks an additional 25% impairment award. He also seeks an additional 25% award for permanent partial disability and permanent total disability benefits.

         Held: The claimant has presented persuasive evidence of a 75% impairment rating and is therefore entitled to a 75% impairment award. His requests for additional permanent partial and permanent total disability benefits are barred by section 39-71-710, MCA (1987).

         Topics:

Benefits: Impairment Awards. In an asbestosis case where the impairment rating is based on the claimant's total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.
Impairment: Impairment Ratings. In an asbestosis case, where the impairment rating is based on the claimant's total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.
Benefits: Occupational Diseases. Under 1987 laws, a claimant suffering from an occupational disease is entitled to the same benefits as an injured worker whose benefits are governed by the Workers' Compensation Act if those benefits are greater than provided under the Occupational Disease Act. Stavenjord v. Montana State Fund, 2003 MT 67, 314 Mont. 466, 67 P.3d 229.
Benefits: Permanent Partial Disability Benefits: Retirement. Under 1987 laws, a worker who has retired is not entitled to wage loss benefits but is entitled to an impairment award.
Benefits: Permanent Total Disability Benefits: Retirement. Under 1987 laws, a worker who has retired is not entitled to permanent total disability benefits.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-703, MCA (1987). In an asbestosis case where the claimant's impairment rating is based on the total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-710, MCA (1987). A claimant who has retired or is deemed retired is not entitled to permanent partial disability benefits other than an impairment award.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-710, MCA (1987). A claimant who has retired or is deemed retired is not entitled to permanent total disability benefits.

         ¶1 The trial in this matter was held in Kalispell, Montana, on June 10, 2004. Petitioner, Claude Paul (claimant), was present and represented by Ms. Laurie Wallace and Mr. Jon L. Heberling. Respondent, Transportation Insurance Company (Transportation), was represented by Mr. David M. Sandler.

         ¶2 Exhibits: Exhibits 1 through 5 and 7 through 11 were admitted without objection. There is no Exhibit 6.

         ¶3 Witnesses and Depositions: The claimant and Norman W. Johnson testified in person. With the agreement of counsel, Drs. Dana Headapohl and Alan Whitehouse testified telephonically. In addition, the depositions of the claimant, Norman W. Johnson, and Dr. Alan Whitehouse were submitted for the Court's consideration.

         ¶4 Issues Presented: The Court restates the issues as follows:

¶4a Whether the claimant is entitled to additional impairment benefits.
¶4b Whether the claimant is entitled to additional permanent partial disability (PPD) benefits in addition to his impairment award.
¶4c Whether the claimant is entitled to permanent total disability (PTD) benefits.
¶4d Whether the claimant is entitled to attorney fees and a penalty.

         ¶5 Bench ruling: At trial I ruled that the claimant is entitled to a 75% impairment award and that he is not entitled to either attorney fees or a penalty. Those rulings are reaffirmed.

         ¶6 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions, and exhibits, and the arguments of the ...


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