Benefits: Permanent Partial Disability Benefits: Wage Loss

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Where Petitioner left her last regular employment not because of her ARD but to help care for her great-grandchildren and subsequently retired at age 62, she has not demonstrated a wage loss.  Petitioner is therefore entitled only to medical benefits and an impairment award. 

Stancil v. MHA Workers' Compensation Trust [12/06/07] 2007 MTWCC 51 Where Petitioner’s employer appropriately placed him in transitional employment following his post-injury return to the workplace, Petitioner demonstrated the ability to perform the essential job functions of the position and was personally and professionally qualified to perform the position, and eventually accepted the position on a permanent basis, the Court held that Petitioner did not suffer an actual wage loss when he was discharged from his employment as a result of behavioral issues. Therefore, Petitioner is not entitled to PPD or rehabilitation benefits.
Wilkes v. Montana State Fund [02/22/07] 2007 MTWCC 9 Petitioner contends that the wage-loss requirement that a claimant must meet to receive PPD benefits for age, education, and lifting, as set forth in § 39-71-703, MCA, violates his equal protection rights. The first prerequisite to any equal protection analysis is a showing that the classes at issue are similarly situated. The two classes at issue in this case are (1) PPD claimants; and (2) claimants who, after reaching maximum medical healing, receive an impairment rating, but return to work and do not suffer an actual wage loss. The classes are not similarly situated. One class – PPD claimants – has suffered a wage loss. The other class of claimants has not. In light of the express public policy that wage-loss benefits should bear a reasonable relationship to actual wages lost, this is a fundamental distinction in ascertaining the similarity of the classes. Section 39-71-703, MCA, is not unconstitutional to the extent it denies PPD benefits for age, education, and lifting to claimants that do not suffer a wage loss.
Ryckman v. ASARCO, Inc. [8/24/05] 2005 MTWCC 52 While section 39-71-116(1), MCA (1997), provides an alternative measure of wage loss based on the wages the claimant is “qualified to earn” after reaching maximum medical improvement, what a worker is actually earning is typically the best measure of what he or she is qualified to earn. The “qualified to earn” standard thus applies in situations where a claimant is underemployed or fails to seek work.
Pollari v. Maco Workers' Compensation Trust [12/21/94] 1994 MTWCC 115 Under section 39-71-703, MCA (1991), where claimant is working, wage loss for purposes of permanent partial disability benefits must be computed on a comparison of wages for claimant’s time-of-injury job and those for post-injury work. The comparison must be made for the same time period, because wages may rise over time. Where the wages for claimant’s post-injury work were less than her time-of-injury wages, but not more than two dollars per hour less, she was entitled to a 10% PPD award.
Callaway v. Valor Ins. Co. [6/2/04] 2004 MTWC 46 Where a claimant is unable to work as many hours post-injury as he was working when injured, whether because of physical restrictions or simply an unavailability of hours in the jobs for which he is qualified post-injury, the loss of hours must be taken into consideration when computing wage loss. This is done by dividing post-weekly wages by the average number of hours worked by claimant preinjury.

Woodworth v. Liberty NW Ins. Co. [4/16/04] 2004 MTWCC 35 Pursuant to section 39-71-703(5)(c), MCA (1997-2001), wage loss for purposes of permanent partial disability benefits must be determined at the time the claimant reaches maximum medical improvement. If he returns to work at that time, and the insurer offers no evidence that his actual wage upon return to work is less than he is capable of earning, wage loss should be measured by the difference between his average weekly wage at the time of his injury and his average wage for the four pay periods immediately following his reaching maximum medical improvement and return to work. See 39-71-123(3), MCA (1999). In the event that the claimant's disability thereafter increases and he suffers a further wage loss, then his benefits must be recomputed based on the additional wage loss. 39-71-739, MCA (1979-2003).

Gates v. Liberty Northwest Ins. Co. [11/07/95] 1995 MTWCC 94 Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.