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Kapphan v. State Compensation Insurance Fund2/17/2000
DECISION AND JUDGMENT
The petitioner in this case is seeking permanent partial disability (PPD) benefits pursuant to section 39-71-703, MCA (1997). His entitlement to benefits under that section, other than an impairment award, is conditioned upon his demonstrating both an actual impairment and an actual wage loss. §§ 39-71-703(1) and (2), MCA (1997). He demonstrated to the insurer's (State Fund's) satisfaction that he suffered an impairment of 5% and the insurer paid the 5%. (Ex. 9 at 1.) However, he was unable to convince the State Fund that he suffered a wage loss. His petition ensued.
A trial was held on September 20, 1999, in Great Falls, Montana, to determine whether claimant suffered a wage loss. Exhibits 1 through 12 were admitted without objection. Claimant, Bruce Carmichael, who is a certified vocational consultant, and Shauna Foley, who is the claims adjuster responsible for the claim, were sworn and testified. Depositions of Sheila Riesenberg and Micki Marion, both of whom provided vocational evidence, were also submitted for the Court's consideration.
At the close of trial, the Court called for legal briefs regarding burden of proof, the claimant's relevant labor market, and calculation of wage loss. In its POST-TRIAL SUPPLEMENTAL BRIEF, the State Fund for the first time conceded that claimant suffered a wage loss, however, it contends that the wage loss is less than $2 an hour and that he is therefore due 10% for wage loss, § 39-71-703(5)(c), MCA (1997), and 5% for loss of laboring capacity, § 39-71-703(5)(d), MCA, for a total of 15%. Claimant disputes the wage loss calculation, arguing that his wage loss was greater than $2 an hour and that he is entitled to 20% for wage loss, for a total of 25%. (BRIEF IN SUPPORT OF PETITIONER'S CONTENTIONS.) The parties agree that claimant's preinjury average weekly wage was $335.64. (POST-TRIAL SUPPLEMENTAL BRIEF at 1; BRIEF IN SUPPORT OF PETITIONER'S CONTENTIONS at 3, 6 ; PRETRIAL ORDER, 5.) Thus, his weekly permanent partial disability rate is $198.00, which is one-half the state's average weekly wage at the time of injury. § 39-71-703(6), MCA.
In light of the limited scope of the issue presented, this decision will be in narrative form. Statements of fact in the narrative are based upon the uncontested facts stipulated by the parties or are the Court's findings of fact.
Discussion
Claimant was injured on May 29, 1998, while working as a ranch hand for American Fork Ranch near Two Dot, Montana. He injured his low back, suffering a herniated disk at the L4-L5 level. He reached maximum medical improvement (MMI) on October 15, 1998, however, he was limited to light duty and precluded from returning to his time-of-injury job which was heavy labor.
Upon reaching MMI, several light-duty jobs were identified and medically approved for claimant, specifically bartender, cashier, and production technician. (Ex. 4 at 2.) Subsequently, claimant worked for a short time as a part-time bartender, then found a job in Saratoga, Wyoming, working 40 hours a week as a convenience store clerk. At the time of trial, claimant was working in that job.
When injured claimant was earning $850.00 per month in wages. He also received $200.00 per month in board and $94.50 per week for meals. Based on an average 60 hours a week of work at the ranch, the State Fund calculates his hourly wage at $5.59, while claimant calculates it as $5.68. The Court has done its own calculations using exact numbers. Those calculations show that claimant's weekly wage was $336.14. His hourly wage, based on a 60-hour work week, was $5.60, and that is the figure which will be used in
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