Larson v. Crissmore

741 P.2d 401, 228 Mont. 9, 44 State Rptr. 1299, 1987 Mont. LEXIS 953
CourtMontana Supreme Court
DecidedAugust 5, 1987
Docket86-310
StatusPublished
Cited by3 cases

This text of 741 P.2d 401 (Larson v. Crissmore) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larson v. Crissmore, 741 P.2d 401, 228 Mont. 9, 44 State Rptr. 1299, 1987 Mont. LEXIS 953 (Mo. 1987).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

LaVerne I. Larson appeals from a June 3, 1986, denial of benefits requested in addition to those granted to him by the Workers’ Compensation Court between April 15, 1971, and April 3, 1980.

We affirm the lower court’s decision and remand to determine proper rates for the temporary total and permanent disability benefits. We order payment of temporary total disability benefits not to exceed 300 weeks in addition to the permanent disability benefits to which claimant is entitled and as instructed below.

The issues on appeal are:

1. Under the 1971 Workers’ Compensation laws, was claimant entitled to additional temporary total disability benefits up to 300 weeks and should this amount have been granted in addition to the 500 weeks of permanent disability benefits already granted to the claimant? (Emphasis added.)

2. Did the lower court err when it denied claimant’s request for a discretionary award by ruling that claimant was required to show that he had lost both hands, or both arms, or both feet, or both legs, or both eyes?

3. Was claimant paid incorrectly low disability benefit rates and was he entitled to permanent partial or permanent total disability benefits?

[11]*11In December 1985, the appellant filed a petition for hearing with the Workers’ Compensation Court. The petition generally sought benefits in addition to those paid to the appellant from April 15, 1971, through April 3, 1980. A hearing was held on March 5, 1986, before the Workers’ Compensation Court Judge Timothy W. Rear-don. Following the receipt of post trial briefs and proposed findings and conclusions, the court entered its judgment based on its findings of fact and conclusions of law, dated June 3, 1986. The court’s decision denied additional benefits to the claimant. This appeal followed.

At the time of trial, on March 5, 1986, claimant was a 59 year old married father of 4 children, with one daughter still dependent upon him for support.

Claimant’s work history includes railroad work as a switch tender, switchman, and road brakeman. He has also worked as an oiler, laborer, woods worker, sawmill laborer, welder, service station mechanic and attendant and as a heavy equipment operator.

Prior to his accident on April 15, 1971, claimant owned his own business, Larson Logging, and he was a healthy and active person. His accident occurred when a winch he was operating pulled a tree down which landed on his head. His injuries required multiple surgeries and treatments. Claimant’s injuries were primarily to his head and neck as well as his back.

Claimant was diagnosed as having a herniated disk which was surgically removed in August 1971. On June 28, 1973, cervical fusion was performed and an abnormal disk removed. On January 31, 1974, a fusion was performed from his L-4 vertebrae to his sacrum.

In 1976, claimant fell off a flat-bed truck after loading some equipment onto it. He injured his head and was treated at the Veterans’ Administration Hospital in Spokane, Washington as an in-patient from September 28 though October 15, 1976. His main complaint was that he suffered from headaches. A brain scan was performed which suggested that claimant’s headaches were related to the injury to the temporal mandibular joint on his right side.

During the summers of 1983 and 1984, claimant took a job as brushcat operator because he needed the income. He could take breaks as needed but at the end of the day he would take pain pills and soak in a bathtub to ease the pain. In 1985, he did not take that position because he was physically unable to do so. He has done a few miscellaneous welding and other tasks but basically has not worked since 1984.

[12]*12Claimant now has a limited ability to move his dorsal spine which affects his general mobility. Lower back motion and motion in his cervical spine is also less than normal. Muscles in his right hand have atrophied and he can not reach, grasp with or flatten out his dominant right hand. He does not have full use of one of his feet and has no hot or cold sensation in his feet. He can sit for about fifteen minutes before getting lower back pains. He is no longer a very coordinated person and cánnot work, fish or hunt.

In his present physical condition, claimant is unemployable. According to the lower court’s findings, given his age, limited education, work history and multiple major surgeries, claimant is totally disabled from competitive employment.

Claimant’s Workers’ Compensation benefits were discontinued on April 3, 1980, after he received 26 weeks of temporary total disability benefits at $60 a week and 500 weeks of permanent partial benefits at $55 per week. Claimant currently receives $510 a month from Social Security as his only source of income.

Claimant believes he incorrectly received only 26 weeks of temporary total disability benefits and is entitled to between 222.56 and 274 additional weeks of temporary benefits as well as the maximum number of permanent partial and permanent total disability benefit weeks. At a minimum, claimant argues he is entitled to 222.56 weeks of temporary total disability benefits pursuant to Section 92-701, R.C.M. (1947). This minimum number of. weeks is based on a statement by Dr. Klassen on February 23, 1975, that claimant would not reach maximum healing for an estimated six months.

With a “liberal construction” mandate claimant argues that a different calculation entitles him to a maximum of 300 weeks of benefits. We agree. This computation is based on Dr. Blaisdell’s opinion and claimant’s testimony concerning healing time following spinal injuries. Dr. Blaisdell stated the maximum healing would occur between six months and two years after the last surgery. Claimant’s last lumbar surgery was January 31, 1974.

Claimant contends that the court below concluded that claimant reached a maximum healing two years after January 31, 1975 or on January 31, 1977. Computing the benefit weeks from 1971 through 1977, he concludes that they add up to 302.12 weeks thus entitling him to 300 weeks of temporary total disability benefits minus the 26 weeks of temporary total disability already paid to him.

Respondent agrees Section 92-701, R.C.M. (1947) limits temporary total disability benefits to 300 weeks from the date of injury. How[13]*13ever, Section 92-708 of that code states the total period for which compensation may be paid cannot exceed 500 weeks and that compensation shall run consecutively, not concurrently. Respondent contends the lower court did not err in applying the black letter of the law and, if anything, appellant was actually overpaid and is entitled to no further benefits.

Conflicting testimony exists as to when claimant’s temporary total disability status actually ceased. An examination of the record does not answer that question. We hold that the claimant is entitled to temporary total disability benefits of up to 300 weeks. This should be sufficient to help the Workers’ Compensation Court in determining the proper , amounts due on remand.

The parties agree that claimant was entitled to some temporary disability benefits and some type of permanent disability benefits. The problem here is whether claimant should have been granted benefits in excess of the 526 weeks of benefits he already received.

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Cite This Page — Counsel Stack

Bluebook (online)
741 P.2d 401, 228 Mont. 9, 44 State Rptr. 1299, 1987 Mont. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-crissmore-mont-1987.