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Delaney v. Hartford Accident & Indemnity Co.3/1/2001
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on November 13, 2000, in Helena, Montana. Petitioner, Eric Delaney (claimant), was present and represented by Ms. Anna M. Bidegaray and Mr. Daniel B. Bidegaray. The respondent insurer, Hartford Accident & Indemnity Company, was represented by Mr. William O. Bronson.
Exhibits: Exhibits 1 through 10 and 12 were admitted without objection. Exhibit 11 does not exist.
Witnesses and Depositions: The parties submitted the deposition of Eric Delaney for the Court's consideration. Eric Delaney and Sherie Martello were both sworn and testified.
Issues: As set forth in the pretrial order, the following issues are presented for decision:
1. Whether claimant is entitled to vocational rehabilitation benefits?
2. Whether claimant is entitled to an increase in award for unreasonable delay or refusal to accept liability and pay proper Workers' Compensation benefits pursuant to section 39-71-2907, MCA?
3. Whether claimant is entitled to costs and attorney's fees, pursuant to section 39-71-611, MCA? (Pretrial Order at 3.)
Having considered the pretrial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the deposition, the exhibits, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant was injured in the course and scope of his employment on December 29, 1997, while "mining sugar" for his employer, Imperial Holly Corporation (Holly). (Uncontested Fact 1.) He fell into a sugar silo and was buried up to his neck in crystalline sugar. While being sucked into the sugar, he was hit in the back of the head and neck with a large rock of sugar. It took rescue workers twenty-five minutes to dig him out.
At the time of the injury, Holly was insured by Hartford Accident & Indemnity Company (Hartford). (Uncontested Fact 2.) Hartford accepted liability for the accident.
After he was extricated from the sugar, claimant was transported to Community Memorial Hospital in Sidney, Montana. When examined at the hospital he complained of pain in his neck, back, right knee, and the back of his head, and of tingling in his arms and fingers. (Ex. 9 at 7-9.) However, he had no broken bones or other major injuries. The diagnosis was "(1) ack blunt trauma (2) possible other injuries not evident." (Id. at 4.) He was discharged to home. (Id.)
Holly Sugar is a union shop. At the time of his industrial accident, claimant was classified as a "sugar trucker and handler." He had also worked as a "bulk loader" but had not been formally reassigned to that position.
The claimant returned to work the day after his accident and was assigned light-duty office work. He continued doing light work until January 16, 1998, when he was laid off for a month. Upon returning to work in mid-February, 1998, he successfully bid the bulk loader position and was reclassified as a permanent bulk loader. Claimant continued to work as a bulk loader through June 1998, however, he was laid off for lack of work during part of that time.
Claimant's wage as a sugar trucker and handler was $9.05 an hour. His wage upon bidding into the bulk loader position was $10.07 an hour. (Ex. 3 at 1.)
The sugar trucker and handler job is heavy labor. (Ex. 1 at 13.) The bulk loader position is heavy to very heavy. (Id. at 1, 5.) Claimant testified, and I find, that after his injury other employees were assigned to help him with heavy tasks.
In the months following his accident, cl
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