Case Discussed: Rausch, Fisch, Frost v. State Compensation Ins. Fund,
2002 MT 203, 311 Mont. 210, 54 P.3rd 25

Ruhd v. Liberty Northwest Insurance Corporation v. Fisch, Frost, Rausch, 2004 MT 236. Attorneys who created common fund via litigation in Rausch v. State Compensation Insurance Fund, 2002 MT 203, were entitled to attorneys fees from all permanently totally disabled workers’ compensation beneficiaries in Montana who benefitted from the decision, not just those insured by defendant in Rausch (Montana State Fund). Attorney who brought separate action against different insurer (Liberty Northwest) on same legal argument made in Rausch was entitled to fees earned in his client’s case, but not from all those claimants insured by Liberty, because the work of the Rausch attorneys established the liability of all insurers to all “common fund” claimants. Workers’ Compensation Court must supervise enforcement of the common fund pursuant to Rausch, and all court-approved agreements stemming from it, from all insurers involved.

Rausch, Fisch, Frost v. Montana State Fund [7/11/03] 2003 MTWCC 48 Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991 are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).