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Ostermiller v. Employers Insurance of Wausau Mutual Co.3/3/2000
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
This matter was held on January 31, 2000 in Billings, Montana. Petitioner, Raymond Ostermiller (claimant), was present and represented himself. Respondent, Employers Insurance of Wausau Mutual Company (Wausau) was represented by Mr. Kelly M. Wills.
Exhibits 1 and 2 were admitted without objection. Mr. Ostermiller and Patricia Hink were sworn and testified.
At the close of trial the Court entered a bench ruling awarding Mr. Ostermiller $1,000 for disfigurement and denying a penalty. The following findings of fact, conclusions of law and judgment confirm that ruling.
Having considered the testimony at trial, the exhibits, the demeanor of the witnesses, and the arguments of the parties, the Court makes the following:
FINDINGS OF FACT
Claimant injured his cervical spine on May 22, 1996, while working for Ecolab, Incorporated. The injury occurred in the course and scope of his employment.
At the time of the injury, Ecolab was insured by Wausau. Wausau accepted liability for claimant's injury and has paid appropriate temporary total disability benefits, permanent partial disability benefits, and medical benefits.
As a result of his injury, claimant underwent an anterior cervical fusion. The surgery was performed by making a horizontal surgical incision on the front right side of claimant's neck, beginning near the Adam's apple (thyroid cartilage).
As far as surgical incisions are concerned, claimant's incision is well healed and blends relatively well with the skin and flesh of his neck. From a surgeon's point of view, the scar may be minimal and non-disfiguring. However, standing face to face with the claimant at ordinary conversational distance, the scar is noticeable. It is a large scar, transversing the full front, right side of the neck. While there is no keloid or other unsightly growth surrounding the scar, it is nonetheless observable under ordinary lighting and is likely to cause persons speaking to claimant at a conversational distance to ask about it. In addition, claimant testified that the scar is sensitive to sunlight and becomes more prominent in the summer when his neck is exposed to stronger sunshine. He testified the scar then appears as a red streak against his neck. I found claimant credible on this point.
Giving consideration to the size of the scar, the fact that it may trigger questions from persons talking to claimant, but, on the other hand, the lack of unusual keloid or other scarring, I find that claimant is entitled to $1,000.
Wausau did not act unreasonably in failing to pay disfigurement benefits. The words "serious disfigurement", as used in the statute raise reasonable questions of interpretation. Further, the claimant's scar is not particularly prominent and from the surgeon's point of view is probably not deemed disfiguring. Moreover, Wausau made an offer to claimant and claimant's demand ($1,200) was greater than what has been awarded by the Court.
CONCLUSIONS OF LAW
Claimant's entitlement to benefits in this case is governed by the 1995 version of the Workers' Compensation Act since that was the law in effect at the time of his injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Benefits for disfigurement are governed by section 39-71-708, MCA (1995), which provides:
39-71-708. Compensation for disfigurement. (1) Injured workers who suffer serious face, head, or neck disfigurement may be entitled to benefits not to exceed $2,500, in addition to benefits payable un
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