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Callaway v. Valor Insurance Co.6/2/2004
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held in Helena, Montana, on May 4, 2004. The petitioner was present and represented by Mr. Norman H. Grosfield. Respondent was represented by Mr. Shane P. McGovern and Mr. Geoffrey R. Keller.
Exhibits: Exhibits 1 through 7 and 13 through 22 were admitted without objection. Exhibit 8 is a duplicate of Exhibit 2. Exhibits 9 through 12 were intended exhibits but were not submitted as they were duplicates of other exhibits.
Witnesses and Depositions: Petitioner, Beth Wing, Jennifer Lynch, Terry Sharpe, and Donna Fisher testified. The parties also submitted the depositions of petitioner and Dr. Allen M. Weinert, Jr. for the Court's consideration.
Issue Presented: The sole issue to be determined by the Court is:
a Whether the petitioner is entitled to a permanent partial disability award for wage loss pursuant to section 39-71-703(5)(c), MCA (2001).
(Pretrial Order at 2.)
Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
The following findings of fact reflect my assessment of the credibility of the witnesses in this case. I decline to find any particular witness credible or incredible. As in many cases I found some parts of the testimony by individual witnesses credible and other parts not.
The petitioner in this matter is Bill Callaway and I shall refer to him hereinafter as "claimant."
The claimant is presently thirty-one years old and a high school graduate. His work history is primarily as a waiter and restaurant manager.
The claimant began working for the Stonehouse Restaurant (Stonehouse) in Helena as a waiter in June 1996, quit in December 1996 to become a marlin fisherman guide in Mexico, and returned to work as a Stonehouse waiter in June 1997. (Callaway Dep. at 9-10). He became a floor manager in January 2002. (Id. at 10, 17-18.)
While the testimony was conflicting concerning the physical requirements of the claimant's job as a floor manager, I am persuaded that his job required lifting more than thirty-five pounds. The job required him to perform whatever tasks needed to assure the smooth operation of the restaurant. He helped unload and move supplies when needed, some of which weighed in excess or thirty-five pounds. He was also required to move tables, which weighed more than thirty-five pounds and were difficult to move. While he often had help, he sometimes had to move them by himself.
On January 22, 2002, the claimant strained his shoulder and upper back while putting up a flag in front of the Stonehouse.
At the time of the accident, the Stonehouse was insured by Valor Insurance Company (Valor). It accepted liability for his claim as compensable and has paid temporary total disability and medical benefits.
The present dispute concerns the claimant's entitlement to permanent partial disability benefits, specifically for wage loss under section 39-71-703(5)(c), MCA.
Following his accident, the claimant first sought chiropractic care from Bryan Hilborn, D.C. He initially saw Dr. Hilborn on January 23, 2002, the day after the accident, and reported a constant "burning feeling in the upper back radiating to the right shoulder." (Ex. 2 at 3.) Dr. Hilborn treated the claimant on multiple occasions thereafter. Although Dr. Hilborn's chiropractic note for April 11, 2002, reflects that claiman
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