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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on two days. The first day of trial was on December 17, 2001, in Missoula, Montana, where the testimony of Dr. Martin D. Cheatle was heard. On January 11, 2002, the Court reconvened in Helena, Montana, first at the office of Dr. Brooke Hunter to hear his testimony, and thereafter in the small courtroom of the Federal Building, where the remaining witnesses testified. However, the case was not submitted for decision until March 8, 2002, after the parties filed post-trial briefs and a transcript of the January 11th proceedings. At trial, petitioner, Bradley Boster (claimant), was present and represented by Mr. John C. Doubek. Respondent, Liberty Mutual Fire Insurance Company (Liberty), was represented by Mr. Larry W. Jones.
Exhibits: Exhibits 1 through 21 were admitted at trial. In addition, the parties submitted Exhibit 22 post-trial. There were no objections to the exhibits.
Witnesses and Depositions: Martin D. Cheatle, Ph.D., Brooke Hunter, M.D., Bradley Boster, Glen Palin, Jeffrey Boster, Carrie Ann Boster, Teresa Toccafondo, Angela Palin, and Loren Hartman testified at trial. In addition, depositions of Dana M. Headapohl, M.D., and Bradley Boster (Volume II, November 26, 2001 only) were submitted for the Court's consideration.
Issues Presented: The issues as set forth in the Final Pretrial Order are:
1. Whether the termination of claimant's ttd benefits by insurer was proper.
2. Whether the claimant is temporarily totally disabled, permanently totally disabled or significantly partially disabled.
3. What benefits, if any, is claimant entitled to receive.
4. Whether claimant is entitled to an award of penalty and attorney fees against Insurer for wrongfully terminating his benefits.
Having considered the Final 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 OF FACT
Claimant is 35 years old. He has a high school diploma but no additional education. (Tr. at 115.)
Following graduation from high school, claimant served four years in the Army as a combat engineer, mostly building pontoon bridges and acting as a lifeguard. (Tr. at 115-16.) His job entailed heavy labor. (Id. at 116.)
Claimant then worked on Alaskan fishing boats off and on for three years, loading fish and operating a forklift on the boats. (Id. at 117; Ex. 18 at 16.) Thereafter, he returned to Helena, drew unemployment for a while, then went to work for a post and pole yard in Townsend loading logs. (Id. at 118; Ex. 18 at 16.) The pole yard went out of business and on July 4, 1994, the claimant went to work for Loram Maintenance of Way, Incorporated (Loram). (Tr. at 119; Ex. 18 at 17.) Loram maintains track for railroads. (Tr. at 119.) Claimant was responsible for operating and maintaining railway maintenance equipment. (Tr. at 119; Ex. 18 at 30.) It was a heavy labor job .
On October 10, 1994, while working for Loram, claimant injured his back. (Uncontested Fact 1.)
At the time of the injury, Loram was insured by Liberty. Claimant submitted a claim for compensation and Liberty accepted the claim.
Claimant has not worked since his injury. Over the next few years following his injury, Liberty paid temporary total disability benefits. It terminated the benefits on three or four occasions but reinstated them each time except for the last time. (Tr. 182.) The last time was Janu
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