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White v. Ford12/17/1992
, 49 St.Rep. 1117
Submitted on Briefs September 17, 1992.
Claimant, Charles White, appeals the order of the Workers' Compensation Court which denied his claim for additional permanent partial disability benefits based upon a 1982 injury. We affirm.
The issues for our review are:
1. Does substantial evidence support the Workers' Compensation Court's conclusion that Charles White failed to prove an entitlement to additional permanent partial disability benefits?
2. Did the Workers' Compensation Court properly weigh the expert testimony?
3. Did the Workers' Compensation Court err in admitting evidence of Charles White's drug and alcohol abuse?
4. Does Aetna's proposed conclusion of law stating that Charles White is entitled to receive a $10,000 nominal disability award constitute a judicial admission?
Charles White (White) sustained a compensable back injury on May 8, 1982, while working as a construction laborer at the Exxon refinery in Billings, Montana. Aetna Life and Casualty Co. (Aetna) was the insurer for the employer, Ford, Bacon and Davis Texas, Inc. Aetna paid White temporary total disability benefits at the rate of $241 per week from May 8, 1982 through December 20, 1982. Pursuant to the January 11, 1983 rating of Dr. Nelson, a neurologist, Aetna paid claimant $6,025 in permanent partial disability benefits at the rate of $120.50 per week for 50 weeks.
Dr. Schwarten, an orthopedic surgeon, and Drs. Nelson and Peterson, both neurologists, examined White in 1982. They performed various extensive examinations and tests. Dr. Peterson examined White on October 22, 1982 and concluded that he could return to work. On January 11, 1983, Dr. Nelson assigned a 10% impairment rating based on his June 16, 1982 examination. As above mentioned, Aetna paid 50 weeks of permanent partial disability benefits based upon this impairment rating. In addition, Aetna advised White that such payment would not close the case and that additional compensation might be paid if his ability to work was affected by the injury or if future medical reports showed an increase in the percentage of his loss.
White contends the 1982 injury has reduced his earning capacity because he can no longer perform heavy work. White submitted various testimony in support of that theory. The record demonstrates that White worked as a construction laborer for 754.4 hours in 1983, 1,104.8 hours in 1984 and 437.5 hours in 1985. White testified these were light duty jobs with the exception of one which required the use of a jackhammer. The supervisor on one job testified that White performed concrete and other heavy work without complaint.
White testified that in 1984 he obtained a real estate license and began working for Associate Realty because he could no longer perform physical labor. The broker at Associate Realty testified that his impression was that White left construction labor because he wanted to get away from the organizational pressures of the laborer's union in which he served as an officer. That broker further testified that White performed numerous physical labor jobs, such as renovating a building, moving heavy boxes and building various items and that he never observed White showing any signs of pain or discomfort.
The record establishes a key aspect of the case. White did not seek medical treatment or examination for back pain from 1983 to August 1988. White's explanation was that he did not seek medical treatment for 5 1/2 years for his back pain because he did not think he had any rights left following his receipt of the impairment settlement.
Page 1 2 3 4 5 6 Montana Personal Injury Attorneys
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