Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Sears, The Parent Sears Holdings Corporation

Court of Workers Compensation of Montana

December 12, 2005

GALE MILLER Petitioner
v.
SEARS, the parent Sears Holdings Corporation, subsidiaries and affiliates Kmart, the parent Sears Holdings Corporation, subsidiaries and affiliates Respondent/Insurer.

          Submitted: September 29, 2005

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          JAMES JEREMIAH SHEA JUDGE.

         Summary: The petitioner petitioned for a lump-sum conversion of his lifetime expectancy of permanent total disability benefits.

         Held: Conversion of lifetime permanent total disability benefits to a lump sum is granted. The petitioner demonstrated financial need that relates to the necessities of life. The petitioner and his wife provide a home for themselves, two of their adult children, and his elderly, disabled mother. The petitioner and his family currently reside in a multilevel rental home that is difficult for both the petitioner and his mother to navigate because of the stairs. The petitioner and his wife demonstrated that a lump sum would enable them to build or buy and modify a home which would accommodate the petitioner's and his mother's disabilities. The petitioner, with the assistance of his wife, is competent to handle his financial affairs. The petitioner and his wife have thus far managed their financial affairs with limited resources and setbacks beyond their control. However, it is apparent from the testimony that the petitioner and his wife's ability to manage their resources is being heavily taxed by their need to borrow against the petitioner's wife's retirement plan and that their ability to continue to borrow against this retirement plan is nearly exhausted. Although the Court might not otherwise exercise jurisdiction over a dispute regarding the total conversion of permanent total disability benefits pursuant to section 39-71-741(2)(d), MCA (1989), the parties in this case have agreed that this Court may properly exercise jurisdiction over this dispute pursuant to section 39-71-2905, MCA (1989).

          Topics:

Benefits: Lump Sums: Generally. Where the petitioner and his wife testified that they had been drawing on the petitioner's wife's retirement to make ends meet and that the petitioner and his disabled mother were finding it increasingly difficult to live in the rental house which did not accommodate their disabilities, the petitioner demonstrated that a lump-sum conversion of his PTD benefits was in his best interests.
Attorney Fees: Unreasonable Denial of Benefits. Pursuant to the fourth factor set forth in section 39-71-612, MCA (1989), a petitioner must demonstrate that the award from the Workers' Compensation Court exceeded the offer made to him pretrial in order to recover attorney fees. When the record does not establish the value of the settlement offer, the Court cannot speculate as to whether the pretrial offer exceeded the award in making its determination as to whether an award of attorney fees is appropriate pursuant to section 39-71-612, MCA (1989).

         ¶1 The trial in this matter was held on September 29, 2005, in Missoula, Montana. The petitioner, Gale Miller, was present and represented by Mr. David W. Lauridsen. The respondent was represented by Mr. Michael P. Heringer.

         ¶2 Exhibits: Exhibits 1 through 7 and Miller Deposition Exhibits 1 through 11 were admitted without objection.

         ¶3 Witnesses and Depositions: The deposition of Gale Miller was taken and submitted to the Court. Gale Miller and Bette Miller were sworn and testified at trial.

         ¶4 Issues Presented: The Pretrial Order states the following contested issues of law:

¶4a Whether the petitioner is entitled to a lump-sum settlement of all his future permanent total disability benefits pursuant to section 39-71-741, MCA (1989).
ΒΆ4b Whether the petitioner is entitled to costs and attorney's fees, pursuant to section ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.