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Darrah v. Asarco3/8/2000
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
The trial in this matter was held on March 3, 2000, in Helena, Montana. Petitioner, Harry Darrah (claimant), was present and represented by Mr. Norman H. Grosfield. Respondent was represented by Mr. Todd A. Hammer.
Exhibits: Exhibits 1 through 3, 5 through 7, and 10 were admitted without objection. Exhibits 4 and 8 were withdrawn. Foundation was laid for Exhibit 9 and it was admitted.
Witnesses and Deposition: Thomas F. McIntyre, Lloyd A. Doney, and the claimant were sworn and testified. The telephonic deposition of the claimant was provided to the Court for its consideration.
Issue: The sole issue presented for decision is whether claimant is entitled to temporary total disability benefits for the period February 8, 1999, through February 28, 1999.
Having considered the testimony of the witnesses, the deposition, the exhibits admitted at trial, the parties' proposed findings of fact and conclusions of law, the credibility of the witnesses, and the arguments of the parties, the Court now makes the following:
FINDINGS OF FACT
The claimant has been employed by ASARCO at its East Helena plant for the last 26 years.
On July 16, 1998, claimant was badly burned by sulfuric acid while working for ASARCO. At the time of the accident, ASARCO was self-insured. It accepted liability for the claim and has paid benefits.
At the time of his accident, claimant was working as an operator in ASARCO's acid plant. The acid plant is one of four production departments at the East Helena refinery and converts sulfur dioxide into sulfuric acid. It produces an average of 250 tons of sulfuric acid daily.
Claimant returned to work in late 1998. He was medically restricted from working on the floor of the acid plant and assigned to work in the control room. His duties were to supervise and monitor the operations of the acid plant. He assigned other workers to perform physical tasks required in the plant itself. Those tasks included the operation of valves in plant piping and cleanup of spills, as needed.
At the time of his 1998 injury, and for many years prior, the claimant was a member of the union at the East Helena ASARCO plant. He was paid an hourly wage.
Beginning February 8, 1999, the union went on strike. The strike lasted through February 28, 1999. During the strike the union maintained picket lines at the East Helena plant.
During three previous strikes at the East Helena ASARCO plant, claimant crossed picket lines and worked. However, those strikes were "wildcat" or unauthorized strikes. The 1999 strike was authorized and claimant was unwilling to cross picket lines. Eighteen other union members, out of approximately 65 total union workers, did cross picket lines during the strike.
The East Helena ASARCO plant continued to operate during the 20-day strike. In addition to union members crossing picket lines, ASARCO brought in salaried, nonunion employees from its other refineries to operate the plant. All four departments in the plant continued to operate. The acid plant continued to produce sulfuric acid at slightly lower levels than before the strike.
At least some of the replacements who worked in the acid plant during the strike had acid plant experience even though they had not worked at the East Helena facility. Prior to the strike the acid plant employed seven full-time, regular employees. During the strike it employed five full-time and two part-time employees. One of those replacement employees was an acid plant supervisor from ASARCO's E
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