<%@LANGUAGE="JAVASCRIPT" CODEPAGE="1252"%> Bruce Crowell

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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

1999 MTWCC 27

WCC No. 9807-8015


BRUCE CROWELL

Petitioner

vs.

STATE COMPENSATION INSURANCE FUND

Respondent/Insurer for

WAGER LOGGING

Employer.


DECISION AND JUDGMENT

Summary: Injured worker claimed he was permanently totally disabled.

Held: In a bench ruling reported by transcript, WCC found claimant permanently totally disabled. WCC believed there was some employment claimant could perform if he properly cared for himself and received work hardening and training, but claimant nevertheless found claimant permanently totally disabled because the evidence before the Court was that he would not find employment, given his physical condition, age, education, skills, and other factors employers consider.

Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code: section 39-71-702, MCA. Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.

Benefits: Permanent Total Benefits. Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.

Vocational Return to Work Matters: Deconditioning. Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.

Vocational Return to Work Matters: Employability. Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.

Vocational Return to Work Matters: Typically Available Employment. Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.

1 This matter came on for trial in Kalispell on March 8, 1999. Petitioner, Bruce Crowell (claimant), was represented by Mr. Garry D. Seaman. Respondent, State Compensation Fund (State Fund), was represented by Ms. Carrie L. Garber. Exhibits 1 through 13 were admitted into evidence without objection. The claimant, his wife Judith Crowell, Mark Schwager, Roberta Smith, and Gail Martin testified.

2 Upon completion of the trial, the Court deemed the matter submitted and ruled from the bench. I found claimant permanently totally disabled, denied attorney fees, and determined that claimant is entitled to his costs.

3 The parties have agreed that a transcript of the Court's oral findings of fact and conclusions of law may take the place of written findings and conclusions. Accordingly, a copy of the transcript of the bench ruling is attached.

4 In accordance with the bench ruling, and based on claimant's memorandum of costs, to which no objection is filed, JUDGMENT IS HEREBY ENTERED AS FOLLOWS:

5 1. Claimant is presently permanently totally disabled. The State Fund shall pay claimant permanent total disability benefits retroactive to the date that it began paying him permanent partial disability benefits. The State Fund is entitled to a credit for permanent partial benefits it has paid to date. If the parties cannot agree as to the amounts due, they may request the Court to make the determination.

6 2. The parties agree that the State Fund is entitled to a social security offset for social security disability benefits paid to claimant in a lump sum and have indicated that they should be able to reach an agreement as to the amount of the offset. If they fail to do so, they may at that time request the Court to make the determination.

7 3. Claimant is not entitled to attorney fees since he has failed to persuade the Court that the State Fund acted unreasonably.

8 4. Claimant is entitled to costs in the sum of $808.20, which the State Fund shall pay.

9 5. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.

10 6. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this Decision and Judgment.

DATED in Helena, Montana, this 14th day of April, 1999.

(SEAL)

Mike McCarter
JUDGE

c: Mr. Garry D. Seaman
Ms. Carrie L. Garber
Date Submitted: March 8, 1999
Attachment: Transcript of Bench Ruling
(See Below)


BRUCE CROWELL V. STATE COMPENSATION INSURANCE FUND

WCC NO. 9807-8015

PARTIAL TRANSCRIPT OF BENCH RULING

March 8, 1999

Kalispell, Montana

18 THE COURT: Okay. All right. You

19 may step down.

20 I can tell both of you right now I want to

21 bench rule on this. It's pretty clear in my mind

22 where this case is at, and I don't think I need

23 further argument on it. On the other hand, if you

24 want to say something before I do it that you think

25 might change where I'm at this point, I would

Page 132

1 hear you on it. No?

2 MS. GARBER: I waive, your Honor.

3 THE COURT: Okay. All right. I'm

4 going to permanently totally disable him out and no

5 attorney fees. That's the bottom line.

6 Get retroactive -- Let me explain to you

7 what my logic is here, and I think it's pretty good

8 logic on both counts.

9 The definition of permanent total

10 disability is a physical condition resulting from

11 injury after the worker reaches maximum medical

12 healing and which the worker does not have a

13 reasonable prospect of physically performing regular

14 employment. And that Statute I think -- All right.

15 Firstly, I think Mr. Crowell is physically

16 capable of working if there was regular employment

17 out there. I'm not persuaded that he's not.

18 There's a couple of things that persuade me of that

19 fact.

20 Secondly, I understand he has to lay down

21 a couple of times, but he's testified here very

22 specifically that that comes after he washes dishes,

23 and there's maybe something that concerns his

24 leaning over that sink. So I mean, the answer to

25 that is quit washing dishes, number one.

Page 133

1 The second thing is that he is

2 deconditioned, and there's a physical therapy

3 recommendation, and I think with those and perhaps

4 curtailing the activities that are bothering his

5 back, that he could do it.

6 I'm not hearing -- I mean, I hear -- I've

7 been hearing a lot of permanent total cases lately.

8 I don't know. There's a run on them for some reason

9 and I don't know what it is because some years I

10 don't hear very many, and this last few months I'm

11 hearing lots of these.

12 And the magnitude of his complaints are --

13 I mean, they're real for sure, there's no question

14 about that, and I think he hurts, but they're not of

15 the same magnitude of many cases that I'm hearing.

16 He indicated that he is able to do some

17 walking and do some activities, and he is doing

18 quite a bit of activity, probably not as much

19 activity as with a job, but I think if he got -- if

20 he did his exercises, lost some weight, got some

21 physical therapy and tried to avoid activities like

22 washing the dishes and other things that may

23 specifically bother his back, I think he may be

24 capable of returning.

25 Now, the proof of the pudding in that is

Page 134

1 getting a job, doing those things and finding out

2 for sure. So I don't think he's physically -- At

3 this point I'm not persuaded he's physically unable

4 to do light work, but the other component of that is

5 there has to be regular employment. And there's

6 another sentence that goes with that. It says, The

7 lack of immediate job openings is not

8 determinative. It says, Lack of immediate job

9 openings is not a factor to be considered in

10 determining if a worker is permanently totally

11 disabled.

12 So you put those two together, and that's

13 why I can't find their position unreasonable because

14 of the fact that he didn't find a job within those

15 12 weeks is not determinative that he's permanently

16 totally disabled, and the Statute is very specific

17 on that, number one.

18 And number 2, there's a controversy about

19 there -- the job with RMB Lumber, and I'll tell you

20 why. You know, I asked the question about that, and

21 I was told that that was a hurdle, and I need to

22 explain to you why I end up with it not being a

23 hurdle, because in my mind, from the very beginning,

24 I thought, Gee, that's a problem with this

25 particular case. I said that right up front to all

Page 135

1 of you, which probably also will show you how

2 frazzled my mind is. I can be persuaded and I do

3 listen to evidence, and I did change my mind on that

4 point.

5 But in any event, there has to be

6 employment out there. Now, what does that mean?

7 Does it mean there's any -- You know, there's jobs

8 out there that fit into the light-duty category?

9 Does that mean that's regularly available in

10 employment? And I don't think that's what it

11 means. I think it means that there are jobs out

12 there that he's competitive for and specific jobs

13 out there that he's qualified and competitive for.

14 If there aren't any jobs -- If there are jobs out

15 there that theoretically he could do, I mean,

16 physically he might be able to be a lawyer or judge,

17 but so what? He's not competitive for those jobs.

18 So we have to identify jobs that he's

19 competitive for, and what I heard Roberta say is

20 there aren't any jobs that he's going to get in the

21 Flathead Valley. And maybe that was a surprise to

22 you and, you know, sometimes I ask questions and

23 sometimes those things pop out. But I think she's

24 probably right, at least given his training and

25 background at this point, the chances of his getting

Page 136

1 a job in the Flathead Valley are nil to none.

2 There's probably some specific reasons for

3 that, and I think the reasons are his age, number

4 one. And I don't think the age is always a

5 determining factor, but you have to put that

6 together with number two, which is, he does not have

7 a great deal of education, it's been a long time

8 since he's been to school, which affects his ability

9 to learn something new. And the third factor is

10 that all he has done in his life is work in the

11 woods, so that's pretty limited.

12 Employers are going to look at that, and

13 what I heard her telling me was, when those

14 employers look at that, the likelihood of his

15 getting one of those jobs, even though it might

16 theoretically be available to him, is very small, if

17 nonexistent, in the Flathead Valley.

18 Now, during the break I asked you about

19 where the market is statewide. Even if the market

20 is statewide, and we can look it up, we still

21 haven't identified jobs statewide. She indicated

22 she thought he had better prospects, but we haven't

23 gone through that process at this point, and I think

24 you would have to go through that process and

25 identify statewide jobs if that's what we were going

Page 137

1 to look at.

2 That hasn't been done at this point, and

3 the only test I have is the rehab. plan that

4 specifically looked at the Flathead Valley, and I've

5 got testimony here he isn't going to get a job up

6 here, you know, based on his current education and

7 training that he has. I also heard Roberta say that

8 she didn't think that was going to be helpful

9 because it wasn't going to increase his wage

10 potential that much, but of course, if it gets him a

11 job, retraining might make a difference because if

12 he doesn't have a job, he doesn't have any wage. So

13 maybe retraining will make a difference.

14 Mark Schwager said that he thought that we

15 ought to take another look at that. And I leave

16 that up to you. You may want to take another look

17 at this and see what else might be done, and maybe

18 do some of that testing that Mark Schwager talked

19 about. I don't think that's a bad idea, by the

20 way. I think that's probably a good idea to do the

21 testing that he has suggested.

22 So anyway, that's where I'm at on the

23 permanent total.

24 Now, let me take you back. Let's go back

25 to that RMB job. Here's the problem with the RMB

Page 138

1 job. Firstly, we don't have a job. It was sort of

2 in negotiation, and there was no job offer there

3 that was made. All that we had was they were

4 interested and they wanted to know whether he was

5 interested in the job, but we don't have a

6 commitment that they were going to hire him. That's

7 number one.

8 Number two, and if it had been and it had

9 been a full-time job, I would have a big problem at

10 this point, at least, with his not trying it. I

11 think people should try things. You know, when they

12 come in and, say, write it off without even trying,

13 that bothers me a lot. I know what I think of this

14 at this point.

15 The second thing is his concerns were

16 legitimate. It's only a part-time job, it's at a

17 wage that is approximately half of what he had been

18 earning in the woods, a little bit more than half

19 what he had been earning in the woods, but it's a

20 big loss. And you put those together, the part

21 time, I don't think it's unreasonable to say, Boy, I

22 got questions about this job.

23 Then the fact that he's going to be laid

24 off. I understand that his work may have been

25 seasonal, but at least he had the higher wage. Now

Page 139

1 we've got a part-time job at this lower wage and

2 it's still seasonal. So that's a legitimate

3 concern.

4 So, what do you do in that situation?

5 Well, what happened here in fact was they looked at

6 other stuff, they developed a different plan. And

7 it wasn't a matter that they presented him this plan

8 and he refused it and now we're here disputing that

9 plan. The plan wasn't developed, the rehabilitation

10 counselor went on to look at other things, and so

11 we've got another plan.

12 We've got testimony that he used a good

13 faith effort. She was satisfied that he was using a

14 good faith effort and was satisfied that he's not

15 going to find jobs out in the Flathead Valley even

16 if we extend the time. That's why I asked her that

17 question about, you know, What if we gave him more

18 time? And basically the answer I got back was

19 probably doesn't make any difference how much time

20 we give him, he's not going to find a job in the

21 Flathead Valley.

22 But I think that complicated, convoluted

23 history there with that job, whether he was offered

24 something that he refused or just said, I'm not

25 going to do that sort of thing, as well as the

Page 140

1 Statute the way it's written, the way it talks about

2 lack of immediate job openings, is not a factor to

3 be considered.

4 And also some controversy about what he

5 can do physically here made the State Fund's -- I

6 think reasonable people could disagree. This wasn't

7 a slam dunk. Although, you know, today when I get a

8 complete picture, I'm sitting here and I get a

9 complete picture from both sides and I hear this

10 evidence, it's a little bit easier for me to make

11 judgments probably than somebody sitting on one side

12 or the other. So that's why I'm making this

13 judgment, and I didn't want this to linger any

14 longer.

15 Costs. I award costs. And is there

16 anything I haven't covered that I need to cover?

17 MR. SEAMAN: There's one other

18 thing. He was converted to permit partial during

19 that period of time and that's being reduced off of

20 any settlement he may get into the future.

21 THE COURT: Yeah. You have to credit

22 for -- Well --

23 MR. SEAMAN: He should be getting at

24 least temp. total during that period of time;

25 shouldn't he?

Page 141

1 THE COURT: No.

2 MR. SEAMAN: Permanent total during

3 that period of time.

4 THE COURT: Should be permanent total

5 from the date that they converted him to permanent

6 partial.

7 Now, you're going to have -- the State

8 Fund is entitled to offset parts of that. The

9 impairment award I think is payable in any event.

10 But since he doesn't qualify for the rest of that,

11 they'll be entitled for some sort of credit for the

12 payments they've made. They'll basically be picking

13 up the difference here retroactively. And I think

14 you probably can figure that out. I don't think you

15 need me to compute that.

16 MR. SEAMAN: No. We can figure it

17 out.

18 THE COURT: Okay. Anything further?

19 MS. GARBER: No. Just there is an

20 issue with regard to the Social Security

21 overpayment. We'll also have to figure that out.

22 MR. SEAMAN: Yeah, he's received

23 Social Security Disability benefits and they've paid

24 that in a lump sum. There is that overpayment. And

25 then you figure out the offset and then you go back

Page 142

1 and you have to figure out the difference between

2 that permanent total rate and the temp. total rate

3 with the offset and so forth, and I think we decided

4 it was only a few dollars, wasn't it, between the

5 two?

6 MS. MARTIN: Four dollars between the

7 two.

8 MR. SEAMAN: We can work the

9 numbers. We've already done that, in fact, when we

10 attempted the settlement claim.

11 THE COURT: I'll let you work the

12 numbers and I'm not going to do anything with that.

13 If for some reason you can't work it out, you can

14 come back and see me about that.

15 The only question I have for you, we can

16 write these as findings if you want them or we could

17 let what I've said, if you're satisfied with it,

18 stand and just generate a judgment. However you

19 want to do it. We can certainly do the findings if

20 you think that would be helpful.

21 MR. SEAMAN: I don't think it's

22 necessary from my point of view.

23 THE COURT: Carrie?

24 MS. GARBER: I guess I'm not

25 certain. This is the first time I've had one of

Page 143

1 these.

2 THE COURT: All right. Why don't you

3 just let me know. If you want them, we'll give it

4 to you.

5 MS. GARBER: And I apologize.

6 THE COURT: It's probably going to be

7 a bit more organized and more articulate than what

8 I've said here.

9 MS. GARBER: It's probably

10 sufficient, but let me go back and ask my

11 supervisor.

12 THE COURT: You bet. Okay.

13 MR. SEAMAN: Thank you.

14 THE COURT: We'll adjourn.

15 (Hearing concluded at 3:15 p.m.)

CERTIFICATE

I, BETH GILMAM, RPR, do hereby certify that the foregoing is a true and correct transcript of the proceedings held in the above matter on the 8th day of March, 1999.

DATED this 18th day of March, 1999.

BETH GILMAN, RPR

HEDMAN, ASA & GILMAN REPORTING - 752-5751/752-3334
P. O. BOX 394 -- KALISPELL, MONTANA

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