John McFerran

Summary: 57-year-old hostler/driver suffered knee and groin injuries. Physician approved three positions as medically appropriate for claimant: pharmacy delivery driver, bookmobile driver, and newspaper delivery driver. Vocational evidence, including testimony from vocational expert, indicated only one bookmobile job existed but that job had no turnover and that newspaper delivery job was not a job but a business claimant would have to enter.

Held: Injured worker is not PPD if he is capable of performing part-time employment which is substantial and significant. Claimant is not PPD where he can perform pharmacy delivery driver position and that job, though part-time, is substantial and significant.

Note: Montana Supreme Court upheld the standard enunciated by WCC, i.e. ability to perform part-time employment which is substantial and significant precludes finding of PTD status, but found record did not support a finding that pharmacy driver was substantial and significant job where it could involve as few as six hours per week.

¶1 The trial in this matter was held on February 1, 2000, in Billings, Montana. Petitioner, John McFerran (claimant), was present and represented by Mr. Patrick R. Sheehy. Respondent, Consolidated Freightways (Consolidated), was represented by Mr. Leo S. Ward.

¶2 Exhibits: Exhibits 1 through 24, 28 through 30, and 32 through 34 were admitted without objection. Previously made objections to Exhibits 26, 27, and 31 were withdrawn and those exhibits were also admitted. Exhibit 25 was admitted over the objection of claimant.

¶3 Witnesses: Claimant, Juanita Hooper Addy, and Calvin Metzger testified. No depositions were submitted.

¶4 Issues: The issues, as stated in the Pretrial Order, are as follows:

1. Whether Petitioner is entitled to permanent total disability benefits.

2. Whether Petitioner is entitled to an award of reasonable attorneys' fees and costs from the Respondent.

3. Whether Petitioner is entitled to the 20% penalty from the Respondent.

¶5 Having considered the pretrial order, the exhibits, the demeanor and credibility of the witnesses, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

¶6 Claimant is 57 years old. He is a high school graduate but had difficulty in school.

¶7 Claimant has worked for Consolidated for most of his adult life. He started working for Consolidated in 1972. He worked approximately 10 years as a hostler in Consolidated's Billings freight yard. As a hostler he gassed trucks, changed tires, changed out trailers, and moved dollies. The work was heavy, involving lifting of greater than 50 pounds.

¶8 During the other years of work for Consolidated, claimant worked as a pickup and delivery driver in the Billings area. In that job he loaded and unloaded goods weighing up to and in excess of 100 pounds.

¶9 On April 7, 1990, claimant injured his low back while at work when he was picking up the tongue of a dolly. At the time of his injury he was splitting his time between hostling and pickup and delivery work.

¶10 At the time of the 1990 injury, Consolidated was self-insured under Plan I of the Montana Workers' Compensation Act. It accepted liability for the injury.

¶11 In 1990 and 1991 the claimant was treated for his back injury primarily by Dr. W.T. Daniels, an orthopedic surgeon. (See Ex. 3 at 9-14.) An MRI of his lumbar spine disclosed dessication of the L4-L5 and L5-S1 disks, and a possible small, but insignificant, osteophyte or small disk bulge at the right L5-S1 level. (Ex. 3 at 14.)

¶12 Claimant was off work until 1992 when, at his request, he was released without restrictions to return to work. He returned to work approximately May 19, 1992, and thereafter worked both hostling and pickup and delivery.

¶13 After returning to work, claimant continued to experience low-back pain, having "good and bad days." Occasionally, he obtained chiropractic manipulation. Between 1992 and 1998, he did not see a medical doctor for treatment of his back.

¶14 In July 1997 claimant suffered a muscle strain of the groin (lower abdominal wall) while lifting tires weighing 110 pounds apiece. (Ex. 4 at 94.) He was off work for two months. Upon his return to work he was limited to light duty for four to five weeks, then went back to his normal duties as a pickup and delivery driver.

¶15 On January 27, 1998, the claimant suffered another groin strain while loading tires. Claimant continued to work. Two days later, on January 29, 1998, he suffered a knee strain while getting out of his truck. (Ex. 2.)

¶16 Claimant submitted a claim for compensation with respect to the January 27 and 29, 1998 incidents. (Id.) Consolidated was self-insured under Plan I of the Montana Workers Compensation Act at the time of the injuries and has accepted liability. Only the January 27^th groin injury is considered in this case.

¶17 Claimant was seen by numerous doctors at the Billings Clinic concerning his groin complaints. His primary treating physician for his injury was Dr. Donald A. Grewell, a family practitioner and apparently claimant's regular physician. (Ex. 4, passim.) However, claimant saw a host of other physicians. (Id.)

¶18 According to claimant, Dr. Grewell took him off work for about six weeks, then released him to light duty. It was impossible to verify his testimony through the medical records. The records are confusing as to claimant's work status. Moreover, many doctors saw claimant in February and March 1998 and treated him not only for his groin strain but for other physical ailments.

¶19 The history of medical restrictions arising from claimant's groin strain, as I glean them from the records, is as follows:

On February 10, 1998, a medical note indicates he was unable to work. (Ex. 4 at 69.)

On February 13, 1998, Dr. Grewell released him without restrictions. (Id. at 60.)

On February 18, 1998, Dr. Peter B. Mitchell, an internist who saw claimant for his groin pain,⁽¹⁾ limited claimant to 30 pound for two weeks. (Ex. 4 at 51.)

On February 20, 1998, Dr. Grewell noted that claimant was back to work "with a restriction of lifting, which I told him I thought was also reasonable . . . . " (Id. at 49.)

Meanwhile, on March 8, 1998, claimant was seen regarding right wrist pain. (Id. at 38.)

On March 31, 1998, claimant completed a physical capacities evaluation. (Ex. 4 at 26-28.) The evaluator found claimant capable of performing heavy lifting but noted claimant's complaints during testing of pain in his back, wrist, and groin.

On April 2, 1998, Dr. Grewell noted he "gave him [claimant] some work restrictions and return to work," but did not note what the restrictions were. (Id. at 22.) It is also not clear which condition or conditions triggered the restrictions. Dr. Grewell noted three conditions in his impression, as follows:

Right groin strain, stable at this time.
Right wrist pain. Work-up is continuing. . . .
Low back pain.

¶20 On April 28, May 14, June 9, July 21, and August 18, 1998, Dr. Grewell approved claimant's return to work but each time provided for "temporary" restrictions limiting claimant to repeated lifting of 35 pounds for 4 hours a shift and occasional lifting of 50 pounds for ½ hour per shift. He also prohibited repetitive twisting of the back and bending, twisting, stooping, stair climbing, and ladder climbing. (Ex. 4 at 8, 10-12, and15.) On September 4, 1999, Dr. Grewell found claimant to be at maximum medical improvement (MMI) with respect to his groin strain and made the physical restrictions permanent. (Ex. 4 at 9.)

¶21 On December 11, 1998, claimant underwent a limited functional capacity evaluation (FCE). The physical therapist performing the evaluation assessed claimant as at a "medium duty work capacity." (Ex. 4 at 6.)

¶22 Dr. Grewell disapproved claimant's return to his time-of-injury job. (Ex. 12 at 1.) Consolidated did not have light-duty work for claimant and he has taken retirement from the company. (Exs. 24, 30, and 34; Trial Test.) He applied for and was granted social security disability benefits. (Id.)

¶23 Consolidated hired Juanita Hooper Addy (Addy), who is a certified vocational consultant, to provide a vocational and return to work analysis for claimant. She determined that no lighter duty work was available at Consolidated and identified several other driving jobs, including wrecker driver, route relief driver, pharmacy delivery driver, newspaper delivery driver, and bookmobile driver, for which claimant was qualified. (See Ex. 27 for a summary of the jobs.) She prepared job analyses for the listed jobs.

¶24 Addy submitted the job analyses to Dr. Grewell for his review. Dr. Grewell disapproved the wrecker driver. He initially approved the route relief driver position but later disapproved it. He approved and continues to approve the other three jobs. (Exs. 26, 27.)

¶25 Dr. Dean C. Sukin, an orthopedist who is claimant's treating physician with respect to his low-back complaints, reviewed job analyses for wrecker driver and route relief driver and disapproved those jobs. (Ex. 3 at 2.) It does not appear he reviewed the other three jobs. (Id.) However, he indicated that driving over one hour "would be contraindicated" unless claimant "is able to take frequent stops on an as needed basis." That restriction, however, is based on claimant's back and is not considered since the Court lacks jurisdiction to determine if the claimant's back condition is totally disabling. (See ¶ 37.)

¶26 Physically, claimant is able to perform any of the three jobs which have been medically approved. Claimant did not persuade me that his limitations exceed those which have been medically identified or that his pain is so great as to preclude his regularly performing any of those jobs.

¶27 At this time, claimant has little, if any, incentive to return to work. His motives in retiring was to obtain a union pension and preserve his health plan benefits. Maintaining or replacing health benefits is essential since his wife has cancer. With his pension and social security disability benefits, his income is as much or more than when he was working. He has not actively sought employment.

¶28 Nonetheless, as set out in the conclusions of law, the Court must address the individual jobs identified by Addy to determine (1) if they are available in sufficient numbers as to be available to claimant and (2) whether claimant, by reason of his physical and mental abilities, education, training, and experience, is qualified and competitive for those jobs. (See Conclusions of Law.)

¶29 The only vocational evidence concerning the approved jobs was provided by Addy. In identifying the approved jobs she took into consideration the claimant's education and experience. All the jobs involve driving, and therefore draw on claimant's work experience.

¶30 Addy testified that positions for pharmacy delivery drivers actually exist in Billings, Montana, at least with one pharmacy - Western Pharmacies. Western employs part-time drivers who work between two and six hours daily. Annually, it has two to three openings for drivers. (Ex. 27 at 2.) Addy had no other information on the availability of these positions either in Billings or state-wide.

¶31 The Parmly Billings Library employs one permanent bookmobile driver and two temporary summer drivers. The permanent driver has been employed five years. The library is presently considering suspending or eliminating the program. Addy had no information as to whether other Montana libraries have bookmobile programs.

¶32 Addy's research into newspaper delivery driver was limited to the Billings Gazette, which hires 15 to 20 drivers annually to deliver papers to drop offs outside of Billings. The Gazette contracts with drivers, requiring them to provide their own vehicles. Drivers are responsible for their own expenses and deliver papers seven days a week. During bad weather they may sometimes drive 10 to 12 hours in a day. Addy admitted that the driving may exceed claimant's restrictions regarding sitting. The restrictions are those mentioned by Dr. Sukin (see ¶ 25) and arise with respect to claimant's low-back condition.

¶33 Addy also identified other possible driving jobs for claimant, specifically school bus driver, taxi driver, chauffeur, and shuttle van driver. (Ex. 27 at 3.) However, she did not develop job analyses or job market information for these jobs, and none of them has been submitted for physician review. I do not consider these jobs in determining whether claimant is permanently totally disabled.

¶34 Addy acknowledged, as a general matter, that claimant's age and physical limitations could adversely affect his ability to obtain and hold a new job. However, she found that he "is employable based on his work skills, physical capacities and work release, [but] the retirement restrictions [attached to his pension] prohibit job placement to his work potential." (Ex. 14 at 1.) There is no contrary expert evidence.

¶35 I find that the bookmobile and newspaper delivery jobs are not jobs available to claimant. The bookmobile job is not available because only a single permanent job was identified and there is no turnover for that job even in the long term. A temporary summer job does not constitute regular employment. I find the newspaper delivery work is not a job available to claimant because it is not employment but rather requires claimant to establish himself in his own business. On the other hand, I find that claimant is physically able to perform and compete for pharmacy delivery driver. There is sufficient turnover in that job even at the one pharmacy identified by Addy for claimant to have a reasonable chance at employment. Claimant has not shown that he is not competitive for a position.