 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hale v. Royal Logging12/7/1999
and his vocational rehabilitation consultant testified regarding Hale's physical limitations and their effect on his earning capacity. Hale testified that he made approximately half what he had been making prior to his injury for over four months supervising the brush crew. In addition, Hale testified that he had to work slower than he had previously, causing him to cut fewer trees which resulted in less income since he was paid by the piece.
20 Hale's surgeon testified that he would have put the work restrictions that he had recommended to Hale in place, but for his understanding that Royal expected an unrestricted work release. Irrespective of the surgeon's recommended restrictions, Hale's vocational rehabilitation consultant testified that certain jobs would have been eliminated from Hale's labor market based on the information he had obtained from Hale regarding his age of 41 at the time of his injury , his high school education, his work history as a sawyer and millworker, and his physical limitations which prevented prolonged sitting or standing and no heavy lifting. In addition, based on the surgeon's recommended restrictions, the vocational rehabilitation expert testified that job categories classified as very heavy and heavy would have been eliminated from Hale's labor market and the medium category would have been suspect due to the 20-pound torsional lifting limit.
21 Regardless of the fact that Hale was able to return to his time of injury job , Hale suffered a loss of capacity to perform as well as before the injury and a loss of the ability to compete and earn in the open market. As this Court pointed out in Fermo, this qualifies the claimant for diminished earning capacity under § 92-703.1, RCM (1975). 175 Mont. at 350, 574 P.2d at 254. Accordingly, we determine that the Workers' Compensation Court incorrectly applied Dunn to this case and erred when it concluded that Hale was not entitled to permanent partial disability benefits under § 92-703.1, RCM (1975). Therefore, the judgment of the Workers' Compensation Court is reversed and we remand this matter to the Workers' Compensation Court for a determination of the amount of benefits owed to Hale under § 92-703.1, RCM (1975) and for an appropriate award of reasonable attorney fees and costs under § 39-71-611, MCA (1975).
22 Reversed and remanded.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE /S/ WILLIAM E. HUNT, SR. /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART
|