Fermo v. Superline Products, 13649
| Citation | 175 Mont. 345,35 St.Rep. 22,574 P.2d 251 |
| Decision Date | 23 February 1978 |
| Docket Number | No. 13649,13649 |
| Parties | Victor FERMO, Claimant and Respondent, v. SUPERLINE PRODUCTS, Employer, and Aetna Casualty and Surety Company, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
Anderson, Symmes, Forbes, Peete & Brown, Billings, Richard F. Cebull (argued), Billings, for appellant.
Hoyt & Bottomly, Great Falls, John C. Hoyt (argued), Great Falls, for respondent.
On March 28, 1975, claimant filed a claim for compensation with the Montana Division of Workers' Compensation, as a result of an injury sustained by claimant in the course and scope of his employment on February 26, 1975. Claimant received temporary total disability benefits for the period February 28, 1975 through August 24, 1975, approximately when he returned to his work.
Insurer offered claimant $1,452 as a compromise settlement for claimant's impairment. On July 28, 1976, claimant filed a petition for hearing with the Workers' Compensation Court. The matter came for trial before the Workers' Compensation Court on August 25, 1976. The Court issued findings of fact and conclusions of law holding claimant entitled to a permanent partial disability award of 125 weeks at claimant's permanent partial disability rate of $60 per week, which equals the sum of $7,500. The Workers' Compensation Court ordered $7,500 to be paid to claimant in a lump sum. The order was stayed, pending the insurer's appeal to this Court.
The sole issue on appeal is whether or not there is substantial evidence to support the Workers' Compensation Court's findings that claimant is entitled to a permanent partial disability award of $7,500.
Claimant's occupation requires the loading and unloading of trucks, either by use of a forklift or manual labor, and the occasional driving of a semi-truck. On February 26, 1975, claimant sustained an injury to his left wrist when a hack or bundle of brick fell on his left arm. The injury aggravated a preexisting injury, claimant having fractured his navicular bone some 20 years prior to the instant injury. As a result of the recent wrist injury, claimant underwent a surgical procedure known as a radial styloidectomy in April 1975. Claimant still complains of symptoms which, examining physicians agree, might be remedied only by a wrist fusion.
On December 30, 1975, a Great Falls orthopedic surgeon and claimant's treating physician, evaluated claimant's condition and rated his disability:
"He (sic) permanent disability is approximately 25% disability of the whole man."
On January 22, 1976, after consultation with the insurer, the treating orthopedic surgeon sent a letter to insurer stating:
* * * "
This evaluation was based on the American Medical Association's Guide to the Evaluation of Physical Impairment.
On March 18, 1976, claimant was examined by a second physician at the request of the insurer, but no disability rating by this second doctor is found in the record.
Based upon the examining physician's ratings of claimant's disability, claimant's counsel concluded the following potential recoveries were available to claimant and these options were presented to the Workers' Compensation Court in his brief:
Using the doctor's ratings at claimant's weekly permanent partial rate of $60 the following computations were presented:
"11% of the upper extremity equal 30.8 weeks or $1,848.00
" 7% of the whole man equal 35 weeks or $2,100.00
"25% of the upper extremity equals 70 weeks or $4,200.00
"25% of the whole man equal 125 weeks or $7,500.00."
The basic dispute is the insurer's contention that claimant is not entitled to a disability rating as to the "whole man" when claimant's disability is limited to the wrist, one extremity. Thus, the issue becomes whether a claimant who sustains an industrial injury to an extremity of the body, is limited in his claim for compensation for permanent partial disability benefits to the specified injury statute, section 92-709, R.C.M.1947, or whether a claimant is also entitled to permanent partial disability benefits under section 92-703.1, R.C.M.1947, which provides for the payment of compensation for injury to any member of the body, where the injury causes partial disability.
In the instant case it is argued by the insurer that the claimant cannot collect under section 92-703.1 because he has suffered no loss in earning capacity and the record shows he is earning more money after the injury, than before. The record also clearly shows the doctor gave him a 25 percent rating of disability based on the whole man. This Court on these facts holds that an award calculated solely in terms of a percentage disability figure applied to previous earnings will stand, regardless of whether actual post injury earnings are greater than before the injury. This will not bar a recovery under section 92-703.1, as long as other evidence...
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Miller v. Western Elec. Co.
...42 Wis.2d 396, 167 N.W.2d 431 (1969). See also Sjoberg's Case, 394 Mass. 458, 476 N.E.2d 196 (1985), and Fermo v. Superline Products, 175 Mont. 345, 574 P.2d 251 (1978) (advancing a similar rationale in the context of accidental Western Electric, of course, argues that Belschner requires th......
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Sjoberg's Case
...Griffith & Co., 237 A.2d 700 (Del.1968); Maxey v. Major Mechanical Contractors, 330 A.2d 156 (Del.Super.1974); Fermo v. Superline Prods., 175 Mont. 345, 574 P.2d 251 (1978). Other courts specifically have held that post-injury earnings must be adjusted appropriately to reflect overtime hour......
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Jensen v. Zook Bros. Const. Co.
...him he has undergone no impairment of earning capacity, solely on the strength of current pay checks." Fermo v. Superline Products (1978), Mont., 574 P.2d 251, 253, 35 St.Rep. 22. Because claimant can perform a few odd jobs for short periods of time does not preclude a finding that claimant......
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