December 18, 2003
JEREMY RUHD Geoffrey C. Angel
LIBERTY NORTHWEST INSURANCE CORPORATION Larry W. Jones
WCC No. 2002-0500
A conference in the above-entitled matter came on Thursday, December 18, 2003, at 10:05 a. m., in the Workers' Compensation Court, Helena, Montana. The Honorable Mike McCarter, Judge of the Workers' Compensation Court, presided. Petitioner was represented by Mr. Geoffrey C. Angel. Respondent was represented by Mr. Larry W. Jones. Also present at the Court's request were Mr. Stephen D. Roberts, Mr. Lon J. Dale, and Mr. Greg E. Overturf. Also present were Mr. Charles G. Adams and Mr. Rex Palmer. The court reporter in this matter was Ms. Laurie Brinkman.
Mr. Jones indicated that there is no issue that a common fund exists. Rather, the remaining issues are legal issues which concern retroactivity of the Ruhd decision and the scope of the common fund. Both counsel agreed that those issues can be submitted upon a simple statement of facts identifying the numbers of permanent totally disabled and temporary totally disabled claimants insured by Liberty. Mr. Jones may also wish to submit an affidavit concerning underwriting assumptions regarding payment of impairment awards to PTD claimants. He will advise Mr. Angel of the contents of the affidavit and if Mr. Angel believes further information is necessary counsel will work together to obtain that information.
One of the problems in identifying PTD claimants who are entitled to impairment awards is the continued designation of some PTD claimants as TTD. Mr. Jones acknowledged that some claimants whom Liberty has conceded are PTD are still listed in Liberty's computerized data base as TTD. The same problem exists for the State Fund. We had an extensive discussion about identifying those claimants without resort to reviewing each and every file of claimants who at some time received TTD benefits. Mr. Overturf indicated the State Fund has been looking at files where TTD benefits have been paid for five or more years. Mr. Angel agreed that for some a time trigger is necessary but felt that five years was too long. He suggested looking at DOLI statistics regarding return to work to determine if there is a statistical time after which a disabled claimant is unlikely to return to work. He will obtain those statistics and supply them to the Court and other counsel. A further discussion will then be held with counsel to attempt a consensus on a time period to be used in examining TTD claims.
Counsel will report their progress to the Court within one month.
Court adjourned at 11:10 a.m.
PATRICIA J. KESSNER
Clerk of Court
By: Clara Wilson
Deputy Clerk of Court