39-71-701, MCA

MONTANA SUPREME COURT DECISIONS
Aldrich v. Montana State Fund [02/18/09] 2009 MT 40 The Montana Supreme Court affirmed the Workers’ Compensation Court’s conclusion that a claimant’s receipt of Social Security retirement benefits did not preclude him from receiving temporary total disability (TTD) benefits where he satisfies § 39-71-701, MCA, by not reaching maximum healing and suffering a total loss of wages. Since the claimant was not earning a wage at the time of his surgery and treatment, the court concluded he did not suffer a “total loss of wages” as a result of the condition and surgery and therefore is not entitled to TTD benefits. The Supreme Court noted that the claimant had not demonstrated that he had any job prospects which he could not accept on account of his injury. Had he been able to make such a demonstration, then his argument that he sustained a total wage loss might have had merit.

[1987-1989] Murer v. State Compensation Ins. Fund, 283 Mont. 210, 942 P.2d 69 (1997) (No. 95-542) Section 39-71-701(5), MCA. (1) The 1987 statutory cap on benefits applies to injuries which occurred between July 1, 1987, and June 30, 1989; (2) the 1987 temporary cap expired June 30, 1989; (3) the 1989 temporary cap applies to injuries which occurred between July 17, 1989, and June 30, 1991; (4) the 1989 temporary cap expired June 30, 1991; and (5) the 1989 temporary cap cannot be applied retroactively to injuries which occurred prior to July 17, 1989, the date on which it became effective.

Broeker v. State Compensation Ins. Fund, 275 Mont. 502 (1996) (No. 95-221) Where a claimant is receiving both total disability benefits and social security disability benefits, the amount by which the claimant’s workers compensation benefits should be offset under sections 39-71-701(2) and -702(2), MCA (1979) is based on the social security disability benefit as indexed to the date on which claimant became eligible to receive those benefits, not the date of his injury. Affirming decision of Workers’ Compensation Court, Broeker v. State Compensation Insurance Fund, 1995 MTWCC 17 (1995).
Broeker v. State Compensation Ins. Fund, 275 Mont. 502 (1996) (No. 95-221) All social security disability cost-of-living increases, whether included in the initial rate or awarded later, should be excluded when the offset against workers’ compensation disability benefits is calculated pursuant to sections 39-71-701(2) and -702(2), MCA (1979). Affirming decision of Workers’ Compensation Court, Broeker v. State Compensation Insurance Fund, 1995 MTWCC 17 (1995).

[1993] Ingebretson v. Louisiana-Pacific Corp., 272 Mont. 294 (1995) (No. 94-622) Workers’ Compensation Court did not abuse its discretion in deciding that job was “no longer available” to claimant, thus entitling him to reinstatement of temporary total disability benefits, where employer terminated his employment for pretextual reasons. Under these facts, the Workers’ Compensation Court was interpreting section 39-71-701(4), MCA (1993), not determining a matter to which the Wrongful Discharge from Employment Act applied.

 
WORKERS' COMPENSATION COURT DECISIONS

Spencer v. Zurich American Ins. Co., [10/21/14] 2014 MTWCC 20 An employee who was terminated for being “not a fit for culture, property, department,” was not necessarily terminated for “disciplinary reasons” so as to preclude his eligibility for TTD benefits under § 39-71-701(4), MCA. 

Spencer v. Zurich American Ins. Co., [10/21/14] 2014 MTWCC 20 A worker with a temporary total disability is “eligible” for TTD benefits when he is injured, as that is when his physical restrictions preclude him from returning to his time-of-injury job.  When § 39-71-701(4), MCA, states, “A worker requalifies for temporary total disability benefits if the modified or alternative position is no longer available. . .,” “requalifies” means that when the modified position is no longer available, the worker is “eligible” for TTD benefits, just as he was before he began working in the modified position, regardless of whether he actually received TTD benefits.

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 The Court found that Petitioner’s time-of-injury employer would have been able to accommodate the restrictions Petitioner had at the time he was released to work. The Court rejected Petitioner’s unsupported argument that he should be entitled to TTD benefits because he moved out of state and was therefore unable to accept the modified job position.

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 Although Respondent argued that Petitioner could not be eligible for TTD benefits because the facts of her case did not satisfy § 39-71-701(1)(a), MCA, the Court held that Petitioner was eligible for TTD benefits because the facts of her case clearly satisfied § 39-71-701(1)(b), MCA.

Koch v. Employers' Ins. Group [04/30/12] 2012 MTWCC 14 Where Petitioner was taken off work by her treating physician in May 2010, and no doctor has opined that she has reached maximum healing, the Court concluded Petitioner suffered a total loss of wages and is entitled to TTD since May 2010.

Holmes v. Safeway Inc. [03/06/12] 2012 MTWCC 8 Petitioner is not entitled to temporary total disability benefits until he is retrained to return to the labor market because: 1) he does not meet the definition of a disabled worker under § 39-71-1011, MCA, since alternative jobs were approved for him in which he would suffer no actual wage loss; 2) he testified his back pain precludes even part-time, sedentary jobs; and 3) he put forth no evidence to indicate he even had an interest in vocational rehabilitation.
Dostal v. Uninsured Employers' Fund [02/16/12] 2012 MTWCC 5 An injured worker’s eligibility for TTD benefits is determined not by whether the worker performs labor, but by whether the worker has suffered a “total loss of wages” as set forth in the statute.
MACo Workers' Comp. Trust v. Klinkam [12/13/11] 2011 MTWCC 26 Where the claimant’s work-related injury was only one of a list of severe physical and mental impairments that contributed to her entitlement to social security disability benefits, the Court concluded that claimant’s receipt of those benefits was not “because of the injury” and therefore the insurer was not entitled to offset workers’ compensation benefits under § 39-71-701(5), MCA.
Sherwood v. Watkins & Shepard Trucking [06/30/10] 2010 MTWCC 19 Where the treating physician expressed reservations about the claimant’s ability to continue in his chosen career, but stopped short of taking the claimant off work, the Court concluded the claimant was no longer released to return to his time-of-injury employment only after an IME physician opined at a later date that he could not return to his time-of-injury employment, therefore making him eligible for TTD benefits.
Sherwood v. Watkins & Shepard Trucking [06/30/10] 2010 MTWCC 19 A claimant who lost his job for performance issues and not because of his industrial injuries did not suffer a total loss of wages as the result of an injury.
Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 Where the claimant has submitted no evidence that he has been taken off work, and no evidence as to whether he has reached maximum healing, he has not proven an entitlement to TTD benefits.
Pugh v. Charter Oak Fire Ins. Co. [01/12/10] 2010 MTWCC 1 The Montana Supreme Court has held that the occurrence of a constructive discharge is “usually a question of fact determined by the totality of the circumstances.” Although Petitioner disagreed with a letter the company president wrote criticizing her job performance and imposing specific changes, the Court did not believe either the letter or the conditions imposed upon Petitioner in the letter motivated her resignation.  Therefore, the Court concluded that Petitioner was not constructively discharged and cannot avail herself of § 39-71-701(4), MCA.
Bagley v. Montana State Fund [08/18/09] 2009 MTWCC 29 Petitioner was terminated from his employment for disciplinary reasons. He has not yet reached MMI and his medical providers agree he is able to work in a sedentary position. The evidence demonstrated that had he not been fired for cause, he would have been able to continue in the modified job his employer provided. He is therefore not entitled to TTD benefits.
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 Where an insurer argued that it never gave a claimant written consent to continue working his second job while receiving TTD benefits, and the Court concluded that the insurer had given written consent under § 39-71-701(7), MCA, the Court further concluded that the insurer had never withdrawn its consent and therefore remained liable for the claimant’s TTD benefits so long as he remained eligible under § 39-71-701(1), MCA.
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 A claims adjuster’s note which stated that a claimant would be entitled to work at his second job without loss of TTD benefits since his wages from that second job were not included in his average weekly wage calculation constitutes written consent under § 39-71-701(7), MCA.
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 A claims adjuster’s note which was typed into a computer which states that an injured worker is entitled to work at a second job without loss of benefits constitutes “written consent” within the meaning of § 39-71-701(7), MCA. The statute requires only that the consent be “written;” it does not require that the consent be “printed onto a sheet of paper,” nor does it require that the claimant be provided a copy for the consent to be valid.
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 A claimant who was not released to return to the employment in which he was engaged at the time of the injury or to employment with similar physical requirements may be eligible for TTD benefits under § 39-71-701(1)(b), MCA, but could alternately be eligible for TPD benefits because he had a physical restriction, was not at MMI, and was released to return to an alternate employment that he was able and qualified to perform while suffering an actual wage loss.

LaFountain v. Montana State Fund [10/08/08] 2008 MTWCC 46 Although Petitioner was earning significantly higher wages at the time of his industrial injury, by law, he is only entitled to the maximum weekly TTD award as set by statute.
Aldrich v. Montana State Fund [12/20/07] 2007 MTWCC 57 Where Petitioner petitioned the Court for TTD benefits notwithstanding his age or social security retirement status, the mere fact that § 39-71-710, MCA, does not preclude Petitioner’s eligibility for TTD benefits due to his retirement status, this does not in and of itself establish his entitlement to such benefits. In order to be eligible for TTD benefits, Petitioner must first satisfy the requirements of § 39-71-701, MCA, (1) a total loss of wages, and (2) the worker must not be at MMI. Were the Court to adopt Petitioner’s rationale that he should be entitled to TTD benefits without proving any actual loss of wages simply because he is no longer medically stable, it would require the Court to ignore or contravene Montana public policy that wage-loss benefits should bear a reasonable relationship to actual wages lost as a result of a work-related injury. § 39-71-105(1), MCA.
Montana Municipal Insurance Authority v. Roche [11/14/07] 2007 MTWCC 47 Where Respondent was found to receive a “wage” from a business he ran as a sole proprietor while receiving TTD benefits and without the written consent of the insurer, Respondent violated § 39-71-701(7), MCA.
Montana Municipal Insurance Authority v. Roche [11/14/07] 2007 MTWCC 47 Respondent received $45,272.86 in TTD benefits during the same time period as he received a wage from a business he operated without the written consent of the insurer, and thus Respondent violated § 39-71-701, MCA. The language of the statute leaves no room for apportionment and plainly states that a worker may not receive both wages and TTD benefits without the written consent of the insurer. Accordingly, Respondent must repay the benefits to which he was not entitled pursuant to the statute.
[2003] Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
[1995] Siaperas v. State Fund [1/15/04] 2004 MTWCC 4 The social security offset provisions require that the claimant's total disability benefits be reduced by one-half of the social security benefits received by a claimant. § 39-71-701(5), MCA (1995)
[1999] Greene v. UEF [4/9/03] 2003 MTWCC 27 Under section 39-71-701(4), MCA, a claimant is disqualified from TTD benefits so long as he is released to a modified position and the position is available. A claimant cannot bootstrap TTD entitlement by refusing the position or quitting the position without good cause.
[1999] Greene v. UEF [4/9/03] 2003 MTWCC 27 Where claimant who had been previously released to a modified position becomes physically unable to perform that position, he again becomes entitled to TTD benefits. § 39-71-701(4), MCA.
[1997, 1999] Daulton v. MHA Workers' Comp. Trust [7/09/01] 2001 MTWCC 37 Under 1997 and 1999 law, § 39-71-701, MCA, once a claimant has been found to be at MMI she is no longer entitled to temporary total disability benefits provided she has been given notice in accordance with § 39-71-609.
[1999] Kellberg v. Liberty NW Ins. Corp. [8/24/01] 2001 MTWCC 48 Where a claimant is released to return to work in a modified position and quits that position prior to maximum medical improvement but for reasons unrelated to his injury, he is not entitled to reinstatement of benefits until such time as the job would have become unavailable to him either because it would have ended or he had become physically unable to do the work.
[1997] Harry Darrah v. Asarco, Inc. [3/8/00] 2000 MTWCC 12. Claimant did not requalify for TTD benefits on the argument his job was no longer available to him during a strike called by his union where evidence indicated he refused to cross picket lines, not that work was "no longer available" to him because job offered was illusory or was different job which would have exceeded his physical restrictions.
[1997] Harry Darrah v. Asarco, Inc. [3/8/00] 1999 MTWCC 65. Claimant demanded reinstatement of TTD benefits under the theory that work was "no longer available" to him during a strike called by his union. Respondent moved for summary judgment on the argument that work was available, but claimant simply refused to cross the picket line. Claimant responded that work is "no longer available" to a union employee during a strike because crossing a picket line is not an option. WCC held that claimant's personal, social, and philosophical reasons for refusing to cross a picket line do not make the work "no longer available." However, trial was necessary because the record and offers of proof did not rule out the possibility that the job offered claimant during the strike was illusory or would have exceeded his physical restrictions.
[1993] Sears v. Travelers Ins. [4/8/97] 1997 MTWCC 18 While criteria for termination of TTD benefits were adopted by the WCC in Coles v. Seven Eleven Stores, WCC No. 2000 (11/20/84), affirmed in Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), and embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991), the WCC will not now add to the Coles requirements, which are not mandated by the statutes at issue in this case. A detailed and technically accurate job description, which would undoubtedly have to be prepared by a vocational consultant hired by the insurer, and which would then be subject to attack by a vocational consultant hired by claimant, is not required by section 39-71-701, MCA (1993), or the language of Coles.
Broeker v. State Compensation Ins. Fund [03/24/95] 1995 MTWCC 17 Montana Code Annotated: section 39-71-701(1) and -701(2), MCA (1979). Where evidence indicated that claimant’s social security disability award was based on the same low back condition for which he is receiving total disability benefits, the social security benefits claimant is receiving are “payable because of the injury” entitling the insurer to the statutory social security offset, whether the language of the offset statute is interpreted as requiring the workers’ compensation injury to be the sole basis for the social security benefits, or as requiring that the injury contribute to the award on a “but for” or some lesser basis.
[1993] Ranes v. Lumbermens Mutual Casualty Co. [7/5/96] 1996 MTWCC 49 Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits because the modified job is no longer available to her.