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Hale v. Royal Logging12/7/1999
APPEAL FROM: Workers Compensation Court, State of Montana, The Honorable Mike McCarter, Judge presiding.
Submitted on Briefs: June 17, 1999
Clerk
Justice Jim Regnier
1 Wesley Hale appeals from the Findings of Fact, Conclusions of Law and Judgment of the Workers' Compensation Court, which declared that Hale was not entitled to permanent partial disability benefits under § 92-703.1, RCM (1975) and that Hale was not entitled to attorney fees or costs. The determinative issue on appeal is whether the Workers' Compensation Court erred when it concluded that Hale was not entitled to permanent partial disability benefits under § 92-703.1, RCM (1975). We reverse and remand.
FACTUAL BACKGROUND
2 Hale, a third-generation logger, began his career in the timber industry at the age of 17 working at a sawmill during the summer. The summer after Hale turned 18, he began working in the woods performing various timber-related jobs, including second loader, choker setter, bucker, and faller. In 1967 Hale went to work for Royal Logging (Royal) falling timber.
3 Arising out of and in the course of his employment with Royal, Hale slipped and fell while lopping tree tops on February 12, 1976, injuring his back. Approximately one month later Hale sought treatment for his back pain and weakness flexing his right foot. After being treated unsuccessfully with traction, it was determined that surgery would be necessary. Hale underwent a laminectomy and discectomy on March 25, 1976.
4 Following his surgery, Hale remained off work for over three months. Prior to releasing Hale to return to work, Hale's surgeon indicated that he considered putting restrictions on Hale because being a sawyer was not conducive to good back function. However, Hale's surgeon recognized that Hale had to earn a living and logging was what Hale knew how to do and Hale's employer expected an unrestricted work release.
5 After being released back to work on June 21, 1976, Hale was assigned to a light duty position supervising a female brush clearing crew. Hale worked this position for more than four months, making approximately less than half of what he had been making falling timber. Following the position supervising the brush crew, Hale returned to work for Royal falling timber. Hale continued to fall timber for Royal until Royal ceased its operations in 1987. After his employment with Royal, Hale continued to work as a timber faller for various employers until problems with his knees, which were unrelated to his previous back injury , forced him to retire in 1997.
6 Beginning a couple of years after returning to work as a timber faller for Royal and continuing throughout his career, Hale often worked in pain and had difficulties with the dorsiflexion of his right foot due to a neurologic problem originating in his back. The neurologic problem caused Hale to experience numbness along his right leg and frequent charley horses.
7 While Hale never lost any time from work as a result of these problems, they caused him to work slower, which was conceded by Royal's vocational rehabilitation consultant. When limbing a tree, Hale had to stand up and stretch his back more often and he could not tolerate prolonged sitting or standing in one place due to his neurologic problem. In addition, Hale could no longer perform any heavy lifting following the surgery.
8 In Hale's occupation, he was paid by the piece, rather than by the hour. Although Hale could not quantify how many less trees he cut in a day due to his limitations, he was sure that he cut less trees because of his back.
9 As a resu
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