Indemnity Awards (38-72-405)

Occupational Disease: Indemnity (39-72-405) Awards

MONTANA SUPREME COURT DECISIONS

Stavenjord v. Montana State Fund ([4/1/03] 2003 MT 67 Section 39-72-405, MCA (1997), violates the Equal Protection Clause found at Article II, Section 4 of the Montana Constitution where an injured workers' wage supplement is limited to $10,000 under the Occupational Disease Act while a worker with the same injury, but incurred on a single day, would be entitled to $27,027 under the Workers' Compensation Act. Eastman v. Atlantic Richfield Company, 237 Mont. 332 (1989) is not applicable to those wage supplement benefits provided for at section 39-71-703, MCA and section 39-72-405, MCA, since 1987. WCC's order that claimant was entitled to the amount of benefits she would receive under the WCA was affirmed.

MONTANA WORKERS' COMPENSATION COURT DECISIONS

Petersen v. Liberty Mutual Fire Ins. [4/28/01] 2001 MTWCC 49 Proof of wage loss is a prerequisite to any award under section 39-72-405, MCA (1997).

Aaby v. ASARCO [7/17/00] 2000 MTWCC 43.5 Insurer not entitled to summary judgment based upon claimant's statements that he retired and did not intend to go back to any work where other evidence suggested he retired because of his occupational disease (feet problems). Section 39-72-405, MCA, only requires that claimant cease employment because of the occupational disease and suffer a resulting wage loss, which is measured by what he could earn if he sought employment.

Erdmann v. Stone Container Corporation [4/18/00] 2000 MTWCC 24 Where credible evidence demonstrated that retired claimant alleging hearing loss could safely return to work using ear protection devices, he is not entitled to statutory benefits available to occupational disease claimants for whom it is "medically inadvisable" to return to work.

Bouldin v.Liberty Northwest Ins. Corp. [12/12/97] 1997 MTWCC 68 Claimant, whose fibromyalgia condition was accepted by the insurer as an occupational disease, seeks compensation under section 39-72-405, MCA (1993) for wage loss allegedly resulting from her inability to work full time in her time-of-injury job. Claimant easily meets three of four statutory criteria: she suffers from an occupational disease, she is not totally disabled, and she has a wage loss. The final criteria involves interpretation of the statute as to whether a determination by a medical panel is necessary regarding whether it was medically advisable for claimant to transfer from her job as a result of her condition. Though the statute is not a model of clarity, the Court interprets section 39-72-405, MCA (1993) to require a medical panel determination only when the wage loss results from a cessation of employment by the employee (resignation), not from discharge or transfer. As for the amount of the award, the full $10,000 is awarded where claimant's wage loss is $2038.40 annually if her current new-job wages are compared to her time-of-injury wages, and $7,600 annually if the part-time wages she earned post-injury with the time-of-injury employer are compared to full time wages she would have earned but for the disease.

Baumgartner v. Liberty NW [4/14/97] 1997 MTWCC 19 39-year old former certified nurses aide is entitled to benefits under section 39-72-405(2), MCA (1995), where the parties agree his low back condition constitutes an occupational disease, the employer terminated his employment based on doctor's advice he could no longer perform the work, and the parties stipulated he suffered a wage loss. Although it would take little more than three years for claimant's wage loss to reach $10,000, the maximum amount that may be awarded under the statute, the Court awarded only $6,000 in light of the apportionment provision of section 39-71-706, MCA (1995), based on the IME physician's apportionment of only 60% of the causation of claimant's condition to work.

Loss v. Lumbermen's Mutual Casualty Co. [3/15/96] 1996 MTWCC 24 Claimant is entitled to the maximum award of $10,000 under section 39-72-405, MCA (1991) where his wage loss amounts to from $2.73 to $3.20 an hour. Working a 40 hour week, he will lose $10,000 within 79 to 92 weeks, or less than 2 years.

Smart v. State Compensation Ins. Fund [10/31/95] 1995 MTWCC 83 Where occupational disease claimant is physically able to perform jobs which are typically available and for which he is qualified, he is not entitled to benefits under section 39-72-701(1), MCA (1991) and is limited to the maximum $10,000 payment authorized by section 39-72-405, MCA (1991). Affirmed in Smart v. State Compensation Mutual Ins. Fund, 227 Mont. 89 (1996) (No. 95-532), but note that later decisions of the Montana Supreme Court may entitle an occupational disease claimant to the same permanent partial disability benefits available under the Workers’ Compensation Act. See, Stavenjord v. Montana State Fund, 2003 MT 67.

Gomez v. MMIA [01/27/95] 1995 MTWCC 6 Where the insurer has accepted liability, but disputes arise as to amount and nature of benefits, the procedures of sections 39-72-602 and -611, MCA (1991), leading to a Department of Labor and Industry order and hearing, are not applicable. In those situations, sections 39-71-2401 and -2411, provide the Workers’ Compensation Court with original jurisdiction over disputes over benefits under the Occupational Disease Act following mediation. However, because the 1991 version of section 39-72-405, MCA authorized “the department” to allow compensation of up to $10,000 under that statute, and Carmichael v. Workers’ Compensation Court, 234 Mont. 410 (1988) does not allow this Court to apply new statutory provisions to claimant’s request under section 405, that dispute must first be heard in the Department of Labor.