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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
y; and
(d) "sedentary labor activity" means the ability to lift up to 10 pounds occasionally or up to 5 pounds frequently.
Initially, claimant has an impairment rating of 10%, thus that amount must be included in calculating his benefits. He was under 30 years old when injured, thus he is not entitled to an award based on age. Since he has completed high school but no post-secondary education, he is entitled to 2% for the education factor. Since he has not proved a wage loss, he is not entitled to anything for that factor despite the fact that the Court "suspects" he has a wage loss. Finally, he is entitled to a 15% award for reduction in labor capacity. While he has made it impossible to determine whether he can do medium labor, I am satisfied that he cannot do heavy labor, which he was doing when injured. The total of the percentages is 27%. I assume counsel can make the necessary benefit calculations.
Since both an award of attorney fees and a penalty require proof that the insurer acted unreasonably, ยงยง 39-71-611, -612, -2907, MCA, and I have found as a matter of fact that it did not, claimant is not entitled to either.
JUDGMENT
The claimant is not entitled to any further temporary total disability benefits or to permanent total disability benefits.
Claimant is entitled to a 27% award of permanent partial disability benefits. The Court retains jurisdiction to determine the actual amount due in the event the parties are unable to agree on the amount.
Claimant is entitled to his costs and shall file his memorandum of costs in accordance with Court rules.
Claimant is not entitled to attorney fees or a penalty.
This JUDGMENT is certified as final for purposes of appeal.
Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 19th day of December, 2002.
Mr. Larry W. Jones
Submitted: March 8, 2002
1. Dr. Dewey also noted the EMG done by Dr. Sublette suggesting neurologic involvement and commented that if claimant's leg pain persisted then "surgical decompression of the L4 nerve root" might be considered. (Ex. 8 at 49.) However, his next note of August 9, 1995, ex. 4 at 50, indicates that there was no evidence of L4 radiculopathy and subsequent imaging studies and EMGs never supported surgery. No doctor has recommended surgery.
2. Probably, "reinnervation", which is the restoration of function especially to a denervated muscle by supplying it with nerves by regrowth or by grafting. Merriam Webster Medical Dictionary. The term is not otherwise explained in Dr. Sublette's notes.
3. The Court cannot find this record in the Exhibits. However, I do note that on January 9, 2001, Dr. Hunter noted he had not seen claimant in "about 15 months" (Ex. 16 at 128), which would indicate he was seen by Dr. Hunter in about October 1999.
4. As with some other documentation, e.g., Dr. Hunter's October 1999 office note (see Fn. 3), the Court does not have the approved job descriptions. The information regarding approval is from a vocational consultant's report. That information was not objected to or challenged by claimant at trial.
5. On October 28, 1997, Dr. Gary wrote that claimant was not at MMI but then stated that since the claimant was unwilling to follow his recommendations, "I don't know what else to offer him." (Ex. 43 at 39.) Since there was no treatment offered by Dr. Gary which claimant was willing to follow through with, Dr. Gary's note in essence
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