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Weisgerber v. American Home Assurance Co.

Court of Workers Compensation of Montana

February 14, 2005

JANNA WEISGERBER Petitioner
v.
AMERICAN HOME ASSURANCE COMPANY Respondent/Insurer.

          Submitted: October 25, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: 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.

         Held: 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.

         Topics:

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 disease arose.
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.

         ¶1 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.

         ¶2 Exhibits: Exhibits 1 through 17 and 22 through 27 were admitted without objection. There were no exhibits numbered 18 through 21.

         ¶3 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 consideration.

         ¶4 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.

         (Pretrial Order at 2.)

         ¶5 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.

         ¶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 parties, the Court makes the following:

         FINDINGS ...


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