Submitted: October 25, 2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
The claimant seeks permanent total disability benefits on
account of an occupational disease arising out of her
exposure to hair dye and other aerosolized chemicals at her
workplace. The claimant's primary and most significant
problem is vocal cord dysfunction where her vocal cords go
into spasm and constrict her breathing.
The claimant's employability must take into account her
preexisting disabilities at the time her occupational disease
arose. Under section 39-71-609(2), MCA (2001), upon the
claimant reaching maximum medical improvement and the
insurer's termination of temporary total disability
benefits, the insurer has the burden of producing evidence
that, taking into consideration not only the claimant's
disability directly attributable to her occupational disease
but also other disabilities existing at the time her
occupational disease arose, the claimant is qualified for and
physically capable of performing regular work. The failure of
the insurer to do so, along with evidence tending to indicate
that the claimant is not able to do the jobs identified by
the insurer, requires the Court to find the claimant to be
permanently totally disabled.
Proof: Burden of Proof: Permanent Total
Disability. Upon termination of temporary total
disability benefits, the insurer bears the burden of
producing evidence showing that the claimant is not
permanently totally disabled. As a part of that evidence it
must identify jobs that are appropriate for the claimant and
which have been medically approved by a physician taking
into consideration any preexisting conditions and
disabilities the claimant had at the time the occupational
Claimants: Preexisting Condition. The
employer and its insurer take the claimant as they find her,
with all of her preexisting conditions and disabilities.
Thus, in determining whether a claimant is permanently
totally disabled, the claimant's medical conditions and
disabilities existing at the time of her injury or
occupational disease must be taken into account in
determining whether she is employable.
The trial in this matter was held in Helena, Montana, on
October 25, 2004. The petitioner was present and represented
by Mr. Norman H. Grosfield. Respondent was represented by Mr.
Donald R. Herndon.
Exhibits: Exhibits 1 through 17 and 22 through 27
were admitted without objection. There were no exhibits
numbered 18 through 21.
Witnesses and Depositions: Vickie Hirschi, Delane
Hall, and the petitioner testified at trial. In addition, the
parties submitted the depositions of Dr. John Schumpert, Dr.
Walter Fairfax, and the petitioner to the Court for its
Issues Presented: The issues, as set forth in the
Pretrial Order, are as follows:
¶4a Whether Petitioner is permanently totally disabled
and entitled to permanent total disability benefits as a
result of her occupational disease; and
¶4b If it is determined Petitioner is not permanently
totally disabled, what amount she would be entitled to in a
permanent partial award.
Order at 2.)
Bench Ruling: At the close of trial, the Court ruled
that if the petitioner is not permanently totally disabled
then she is at least permanently partially disabled and
sustained a wage loss in excess of $2 an hour. On that basis,
and without deciding the degree of permanent disability, the
Court authorized and directed the respondent to pay a twenty
percent wage-loss benefit pursuant to section
39-71-703(5)(c), MCA (2001), said amount to be paid
retroactively to the date the petitioner reached maximum
medical improvement. Said amount is to be credited against
the insurer's liability for permanent total disability
benefits if the Court ultimately finds the petitioner
permanently totally disabled.
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 parties,
the Court makes the following: