Benefits: Permanent Partial Benefits: Labor Capacity

Cox v. Pacific Employers' Ins. [10/16/02] 2002 MTWCC 48 Awards for wage loss and labor restrictions are components of permanent partial disability benefits and cannot be made absent a wage loss.

S.L.H. v. State Fund [1/14/99] 1999 MTWCC 6 Claimant who was kidnaped from work and received severe physical and emotional injuries was entitled to additional PPD benefits in the form of 10% for physical restrictions. As the insurer conceded, 10% was appropriate where claimant's time of injury job was medium duty and she could work only light-duty post-injury.
Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis – one year and more – claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.
Caplette v. Reliance National Indemnity Co. [10/1/98] 1998 MTWCC 69 Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Moldenhauer v. Lumbermens Mutual [9/4/97] WCC No. 9609-7614 Where claimant performed similar very infrequent heavy lifting both before and after injury, she was not entitled to permanent partial disability benefits for loss of lifting capacity, even though her doctor opined she could not perform heavy lifting.
Moldenhauer v. Lubermens Mutual [6/23/97] WCC No. 9609-7614 47-year old food store transportation clerk with knee injury demanded permanent partial disability benefits for loss of labor activity. Evidence showed her job included: moving banker's boxes, some weighing more than fifty pounds, approximately six to eight times a year; lifting copy paper boxes weighing over fifty pounds three or four times a year; and lifting a 100-120 pound mail cart approximately once a week, with another person. Section 39-71-703(3)(d), MCA (1993), provides an increase in permanent partial disability benefits if "a worker, at the time injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity." Section 39-71-703(6)(a), MCA (1993), in turn defines "heavy labor activity" as "the ability to lift over 50 pounds occasionally or up to 50 pounds frequently." Problematically, "occasionally" is not defined in the WCA. Considering the context in which the word is used, the WCC concluded the "occasionally" must be construed as understood by vocational professionals. While testimony on that question diverges in this and other WCC cases, the evidence in this case is that "occasional" includes activity taking between 0 and 33% of the worker's time. Because claimant lifted some items over 50 pounds, it must be concluded that she performed heavy labor pre-injury. Her demand is denied, however, where the WCC finds she also performed heavy labor after her injury.
Church v. Travelers [5/27/97] 1997 MTWCC 31 Insurer paid PPD claimant benefits corresponding to 17.5% of 350 weeks for the labor factor under section 39-71-703, MCA (1993), representing a "split" between 15% and 20% on the theory that claimant went from the ability to do heavy lifting to an ability falling somewhere between medium and light duty. WCC held there is no statutory basis for "splitting" the labor factor portion of PPD benefits. Where claimant credibly testified he was not lifting 25 pounds or more frequently, he is entitled to PPD benefits for reduction of lifting capacity from heavy to light duty. The insurer's position was unreasonable where its statutory interpretation was without basis and its assertions at trial regarding claimant's lifting capacity were without factual support. The fact that the insurer required trial over $1,631.88 in benefits magnifies its unreasonableness.
Church v. Travelers Indemnity Company of Illinois [4/28/97] 1997 MTWCC 28 Section 39-71-703, MCA (1993) does not authorize an insurer to split the difference between 15% PPD benefits due if claimant moves from heavy to medium lifting, and 20% due if he moves from heavy to light. Although there is no statutory basis for the 17.5% paid by the insurer, WCC declines to award summary judgment where factual issues remain regarding other arguments raised by insurer and the possibility exists that the insurer has paid more than was due.
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114 While claimant previously worked in a heavy-labor job, he is now limited to light labor based on his physical limitations, even though he may be able to perform some jobs falling into a medium category.