Impairment:
Generally. Court finds no statutory basis under 1991 or 1997 WCAs
for payment of impairment award to permanently totally disabled claimants.
Since claimants cannot work at all, they are not permanently partially
disabled and are ineligible for impairment awards payable to PPD claimants.
Language in section 39-71-703(1) (1991 and 1997), MCA, which authorizes
PPD benefits where a worker "is no longer entitled to temporary
total or permanent total disability benefits" must be read together
with the further requirement that claimant must be PPD. Section 39-71-737,
MCA concerning concurrent and consecutive payment of benefits does not
create an entitlement to an impairment award or any other new benefits,
it applies only to benefits which are payable under other sections.
Language authorizing payment of an impairment award upon retirement,
section 39-71-710, MCA, also does not create any new entitlement to
an impairment award. It simply continues the liability for an impairment
award due under other sections. Constitutional challenge to denial of
impairment awards to PTD claimants reserved for further briefing and
argument.
¶1 These three cases are
submitted upon stipulated facts. They present common questions concerning
impairment awards for permanently totally disabled claimants. The parties
ask the Court to determine when impairment awards are due and whether
they may be paid concurrently with permanent total disability benefits.
Claimants also ask the Court to determine how the awards should be classified
or characterized. Finally, they seek attorney fees and penalties. The
cases have been consolidated for purposes of disposing of those issues,
but not for other purposes.
Facts
¶2 The facts are stipulated.
All three of the claimants are permanently totally disabled as the result
of industrial injuries. Kevin Rausch (Rausch) suffered a head and spinal
cord injury on July 8, 1992, and is a quadriplegic with brain damage.
Charles Fisch (Fisch) suffered a spinal cord injury on July 9, 1998.
He is an incomplete quadriplegic. Thomas Frost (Frost) suffered a back
injury on August 30, 1997. He has undergone four surgeries to date.
The State Compensation Insurance Fund (State Fund) insured each claimant's
employer and has accepted liability for each of the injuries.
¶3 Each claimant has reached
maximum medical improvement (MMI). Impairment ratings have been rendered
- 96% for Rausch, 74% for Fisch, and 25% for Frost. None of the three
claimants has ever been in a permanent partial disability status. Upon
reaching MMI, each claimant was converted to permanent total disability
status. The parties agree that all claimants will continue to be permanently
totally disabled until they die or reach retirement age.
¶4 Although none of the claimants
has reached retirement age, each of them demanded that he be paid an
impairment award based on his impairment ratings. The State Fund refused,
taking the position that impairment awards for permanently totally disabled
claimants are not due until claimants receive social security retirement
benefits or become entitled to full social security retirement benefits.
However, following this Court's March 17, 2000 decision in Sharp
v. Montana Municipal Insurance Authority, 2000 MTWCC 13, the State
Fund offered to pay out impairment awards, in full and without discount,
to all three of the claimants. The State Fund also offered to pay each
of the claimant's attorney fees with respect to the awards. The offers
were made for purposes of resolving the present litigation: The State
Fund does not concede that it is legally required to pay the awards
to these or any other permanently totally disabled claimant. While claimants
Fisch and Frost have accepted the offers, claimant Rausch indicates
he is unwilling to do so unless the award is characterized as a permanent
total disability benefit. (Petitioner Kevin Rausch's Reply Brief at
14.)
Issues
¶5 On March 31, 2000, the
parties filed a stipulation, setting forth both the agreed facts and
the issues to be decided by the Court. The issues, as stated, are:
- Whether or not, under
the 1991 and/or 1997 Workers' Compensation Act, a person classified
as permanently totally disabled, who has never received permanent
partial disability benefits, is entitled to receive both an impairment
award and permanent total disability benefits at the same time.
- In the event that Issue
1 is answered in the affirmative, whether or not an impairment award
of the permanently, totally disabled person is due immediately, without
the necessity of the death of the permanently, totally disabled person
or the permanently, totally disabled person reaching age 65.
- In the event that Issues
1 and 2 are decided in the affirmative, whether the impairment award
to which the permanently, totally disabled person is entitled is to
be classified as partial permanent disability benefits or permanent
total disability benefits.
- Whether Petitioners are
entitled to attorney fees under § 39-71-611 MCA and 20% penalties
under § 39-71-2907 MCA.
- Whether Petitioner's
attorneys are entitled to common fund attorney fees under Murer
v. State Workers' Compensation Mutual Ins. Fund for all similarly
situated permanent total disability claimants for whom the State Fund
has not paid impairment awards, where there is either an undisputed
impairment rating or the State Fund has not obtained an impairment
rating.
(Stipulation at 6.) In addition,
claimants assert constitutional grounds to support their argument for
full, immediate payment of impairment awards to permanently totally
disabled individuals. The constitutional challenge was severed during
oral argument and deferred until the non-constitutional arguments are
decided.
Motion to Dismiss
¶6 Based upon its offer to
pay impairment awards to claimants (see ¶ 4), the State Fund
filed a motion to dismiss (March 31, 2000) arguing that all issues,
save number three, are moot. At hearing, however, counsel for the State
Fund conceded that in light of claimant Rausch's rejection of its offer,
all issues are joined as to him. Therefore, I need only consider the
motion with respect to claimants Fisch and Frost.
¶7 Fisch and Frost brought
their petition not only on their own behalf but on behalf of a putative
class of similarly situated claimants. They have requested class certification.
In that light, I find that the State Fund's offer does not moot the
issues they raise.(1) Moreover, to determine
what class of benefits their impairment awards belong to, I must determine
the authority for payment of the awards, thereby addressing issues one
and two. Also, the penalty and attorneys' fee issues remain. The motion
to dismiss is denied.
Discussion
¶8 The questions presented
present difficult questions of statutory interpretation. To determine
when the award is due, and to classify the benefit, I must determine
the legal authority for the award. That task has turned out to be significantly
more difficult than I anticipated at the time of oral argument.
¶9 In oral argument, the
claimants' attorneys cited Holton v. F.H. Stoltze Land and Lumber
Co., 195 Mont. 263, 637 P.2d 10 (1981), as authority for payment
of impairment awards to permanently totally disabled claimants upon
their reaching MMI. Holton, however, is inapposite. That case
considered the award of a penalty where an insurer admitted
that an impairment award was due a permanently partially disabled claimant;
it did not decide that a permanently totally disabled claimant is entitled
to an impairment award. More importantly, it was decided under laws
that have been substantially amended in ensuing years. Workers' compensation
benefits are a creation of statute and Courts must follow and apply
the statutes as they are written. See Ingraham v. Champion International,
243 Mont. 42, 48, 793 P.2d 769, 772 (1990) ("The power of the legislature
to fix the amounts, time and manner of payment of workers' compensation
benefits is not doubted.").
¶10 I must therefore rely
on the specific statutes in effect at the time of each claimant's injury
to determine his entitlement to an impairment award. Buckman v.
Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382
(1986). Claimant Rausch's entitlement is governed by the 1991 version
of the Workers' Compensation Act, claimants Fisch and Frost by the 1997
version.
¶11 Section 39-71-702, MCA
(1991 and 1997), govern permanent total disability benefits. Impairment
awards are not among the benefits described in either version of the
section.
¶12 The only section directly
authorizing impairment awards is section 39-71-703, MCA, which governs
permanent partial disability benefits. The 1991 and 1997 versions of
the section differ somewhat.
¶13 The 1997 version is identical
in all respects to the 1995 version except for subsection (3), which
was amended in 1997 by changing the reference in that subsection from
"subsection (4)" to "subsection (5)". As amended in 1997, section 39-71-703,
MCA, provides in relevant part:
39-71-703.
Compensation for permanent partial disability. (1) If an
injured worker suffers a permanent partial disability and is no longer
entitled to temporary total or permanent total disability benefits,
the worker is entitled to a permanent partial disability award if
that worker:
(a) has an actual wage
loss as a result of the injury; and
(b) has a permanent impairment
rating that:
(i) is established by
objective medical findings; and
(ii) is more than zero
as determined by the latest edition of the American medical association
Guides to the Evaluation of Permanent Impairment.
(2) When a worker receives
an impairment rating as the result of a compensable injury and has
no actual wage loss as a result of the injury, the worker is eligible
for an impairment award only.
(3) The permanent
partial disability award must be arrived at by multiplying the percentage
arrived at through the calculation provided in subsection (5) by 350
weeks.
(4) A permanent
partial disability award granted an injured worker may not exceed
a permanent partial disability rating of 100%.
(5) The percentage
to be used in subsection (3) must be determined by adding all of the
following applicable percentages to the impairment rating:
¶14 In Sharp v. Montana
Municipal Insurance Authority, 2000 MTWCC 13, I determined
that under the 1995 version of section 39-71-703, MCA, a permanently
totally disabled claimant is not entitled to the impairment award provided
therein for permanently partially disabled claimants. That conclusion
rests on the express criteria of subsection (1). Under subsection (1)
a worker is entitled to permanent partial disability benefits, which
include the impairment award mentioned in subsection (5), only
if the worker "suffers a permanent partial disability"
and is no longer entitled to either temporary or permanent
total disability benefits. Permanent partial disability is defined in
section 39-71-116(23), MCA (1997), and 39-71-116(22), MCA 1995, which
are identical. The subsection provides:
"Permanent partial disability"
means a physical condition in which a worker, after reaching maximum
medical healing:
(a) has a permanent impairment
established by objective medical findings;
(b) is able to
return to work in some capacity but the permanent impairment
impairs the worker's ability to work; and
(c) has an actual wage
loss as a result of the injury.
As I held in Sharp:
The language of these
sections is plain and clear, therefore they require no interpretation
and must be applied as written. State v. Dahlin, 289 Mont.
182, 187, 961 P.2d 1247, 1250 (1998). Under the definitional section
(39-71-116(22), MCA), a worker is not permanently partially disabled
unless he or she is able to return to work in some capacity. A permanently
totally disabled worker, who cannot return to work in any capacity,
does not satisfy the requirement, does not suffer a permanent partial
disability, and is not entitled to permanent partial disability benefits
under section 39-71-703(1), MCA.
Sharp ¶ 6.
¶15 I went on in Sharp
to discuss subsection (2), which provides for an impairment award
for a worker who "has no actual wage loss as a result of the injury"
and therefore is ineligible for the impairment award under permanent
partial disability provisions. I found that subsection inapplicable
as well, noting that a permanently totally disabled claimant is "ineligible
under the subsection since he has suffered a wage loss." Id.
¶ 7. I never did decide what statute, if any, authorizes an impairment
award for a permanently totally disabled claimant who has never been
in permanent partial status. In a footnote to paragraph 7 I said: "The
parties agree that claimant is entitled to an impairment award, therefore,
the Court need not consider the statutory basis for such award."
¶16 I reaffirm Sharp,
and must determine what, if any, other statute authorizes payment of
an impairment award to a permanently totally disabled claimant who has
never been in a permanent partial disability status.
¶17 It might be argued, although
it has not been, that subsection (1) of section 39-71-703, MCA (1997),
should be construed as authorizing permanent partial disability benefits
for permanently totally disabled individuals when they receive or are
eligible for social security retirement benefits, § 39-71-710, MCA (1997).
That argument rests on the language in subsection (1) which refers to
a worker who "is no longer entitled to temporary total or permanent
total disability benefits." That language, however, cannot be isolated
from other language in the subsection which creates a threshold requirement
that the claimant be permanently partially disabled. The section must
be construed in its entirety and all of its language reconciled and
given effect. "In construing a statute, a court must reject a construction
that would leave any part of the statutory language without effect--the
court must give effect to all relevant provisions of the statute. "
Montco v. Simonich, 285 Mont. 280, 287, 947 P.2d 1047, 1051
(1997). Applying a threshold, permanent partial disability requirement
does not render the subsection's reference to permanent total disability
meaningless. A permanently totally disabled individual may later become
employed or employable through retraining or improvement in his or her
condition, and, thus, may no longer be permanently totally disabled.
¶18 I reach the same conclusions
with respect to section 39-71-703, MCA (1991), which provides in relevant
part:
39-71-703. Compensation
for permanent partial disability. (1) If an injured worker
suffers a permanent partial disability and is no longer entitled to
temporary total or permanent total disability benefits, the worker
is entitled to a permanent partial disability award.
(2) The permanent partial
disability award must be arrived at by multiplying the percentage
arrived at through the calculation provided in subsection (3) by 350
weeks.
(3) An award granted an
injured worker may not exceed a permanent partial disability rating
of 100%. The criteria for the rating of disability must be calculated
using the medical impairment rating as determined by the latest edition
of the American medical association Guides to the Evaluation of Permanent
Impairment. The percentage to be used in subsection (2) must be determined
by adding the following applicable percentages to the impairment rating:
(a) if the claimant is
30 years of age or younger at the time of injury, 0%; if the claimant
is over 30 years of age but under 56 years of age at the time of injury,
2%; and if the claimant is 56 years of age or older at the time of
injury, 3%;
(b) for a worker who has
completed less than 9 years of education, 3%; for a worker who has
completed 9 through 12 years of education or who has received a graduate
equivalency diploma, 2%; for a worker who has completed more than
12 years of education, 0%;
(c) if a worker has no
wage loss as a result of the industrial injury, 0%; if a worker has
an actual wage loss of $2 or less an hour as a result of the industrial
injury, 10%; if a worker has an actual wage loss of more than $2 an
hour as a result of the industrial injury, 20%; and
(d) if a worker, at the
time of the injury, was performing heavy labor activity and after
the injury the worker can perform only light or sedentary labor activity,
20%; if a worker, at the time of injury, was performing heavy labor
activity and after the injury the worker can perform only medium labor
activity, 15%; if a worker was performing medium labor activity at
the time of the injury and after the injury the worker can perform
only light or sedentary labor activity, 10%.
As with the 1997 version,
the 1991 statute extends permanent partial disability benefits only
to "an injured worker [who] suffers a permanent partial disability."
There is no separate provision, as in the 1997 Act, for payment of an
impairment award to a worker suffering an impairment but not a wage
loss, and the 1991 definition of permanent partial disability is identical
to the 1997 definition. § 39-71-116(22), MCA(1995). Claimant Rausch
is not permanently partially disabled and not entitled to permanent
partial disability benefits.
¶19 All claimants find the
authority for payment of an impairment award in section 39-71-737, MCA.
The 1997 version of the section provides:
39-71-737. Compensation
to run consecutively - exceptions. Compensation must run
consecutively and not concurrently, and payment may not be made for
two classes of disability over the same period, except that impairment
awards and auxiliary rehabilitation benefits may be paid concurrently
with other classes of benefits.
The 1991 version, while containing
additional provisions, is identical with respect to impairment awards,
providing:
39-71-737. Compensation
to run consecutively -- exceptions. Compensation shall run
consecutively and not concurrently, and payment shall not be made
for two classes of disability over the same period except that impairment
awards and auxiliary rehabilitation benefits may be paid concurrently
with other classes of benefits, and wage supplement and partial rehabilitation
benefits may be paid concurrently.
Neither version creates any
entitlement to an impairment award, or for that matter to auxiliary
benefits or any other benefits. It only prescribes when different classes
of benefits which are authorized in other sections may be paid concurrently.
The claimant must be due the benefits in the first place for the section
to apply.
¶20 Claimants argue that
failure to interpret section 39-71-737, MCA, as entitling permanently
totally disabled claimants to impairment awards would render the section's
reference to impairment awards meaningless. If that were so, the Court
might have to deem the statute ambiguous and consider the maxim of statutory
interpretation that courts should attempt to construe a statute in a
manner which does not render it meaningless, Albright v. State By
and Through State, 281 Mont. 196, 206, 933 P.2d 815, 821 (1997).
However, failure to adopt claimants' interpretation does not render
the language meaningless. There are other benefits which a claimant
might receive concurrently with an impairment award, specifically, an
award for disfigurement, § 39-71-708 (1991, 1997), MCA, and rehabilitation
benefits, §§ 39-71-1006, MCA (1997), 39-71-2001, MCA (1991).
¶21 Finally, I consider section
39-71-710, MCA, which also refers to impairment awards. The 1997 and
1991 versions differ in minor respects which are immaterial here. The
1997 version of the section provides:
39-71-710.
Termination of benefits upon retirement. (1) If a claimant
is receiving disability or rehabilitation compensation benefits and
the claimant receives social security retirement benefits or is eligible
to receive or is receiving full social security retirement benefits
or retirement benefits from a system that is an alternative to social
security retirement, the claimant is considered to be retired. When
the claimant is retired, the liability of the insurer is ended for
payment of permanent partial disability benefits other than the impairment
award, payment of permanent total disability benefits, and payment
of rehabilitation compensation benefits. However, the insurer
remains liable for temporary total disability benefits, any
impairment award, and medical benefits.
(2) If a claimant who
is eligible under subsection (1) to receive retirement benefits and
while gainfully employed suffers a work-related injury, the insurer
retains liability for temporary total disability benefits, any impairment
award, and medical benefits. [Emphasis added.]
The 1991 version provides:
39-71-710. Termination
of benefits upon retirement. (1) If a claimant is receiving
disability or rehabilitation compensation benefits and the claimant
receives social security retirement benefits or is eligible to receive
full social security retirement benefits, the claimant is considered
to be retired. When the claimant is considered retired, the liability
of the insurer is ended for payment of wage supplement, permanent
total disability, and rehabilitation compensation benefits. However,
the insurer remains liable for temporary total disability
benefits, any impairment award, and medical benefits.
(2) If a claimant who
is eligible to receive social security retirement benefits and is
gainfully employed suffers a work-related injury, the insurer retains
liability for temporary total disability benefits, any impairment
award, and medical benefits. [Emphasis added.]
Use of the language "remains
liable for . . . any impairment award" can only be construed as indicating
that liability for the award must exist in the first instance, independently
of section 39-71-710, MCA. As with section 39-71-737, MCA, section 39-71-710,
MCA, does not create any entitlement to benefits but only considers
the payment of benefits created elsewhere in the Act.
¶22 In concluding that section
39-71-710, MCA, does not create an entitlement to an impairment award,
I considered the Supreme Court's decision in Hunter v. Gibson Products
of Billings Heights, Inc., 224 Mont. 481, 730 P.2d 1139 (1986),
in which the Court interpreted the 1983 version of section 39-71-710,
MCA, as providing for payment of permanent partial disability benefits
to a permanently totally disabled claimant whose permanent total benefits
were terminated due to receipt of social security retirement benefits.
At that time, section 39-71-710, MCA, provided:
If a claimant is receiving
total disability compensation benefits and the claimant receives retirement
social security benefits or disability social security benefits paid
to the claimant are converted by law to retirement benefits, the claimant
is considered to be retired and no longer in the open labor market.
When the claimant is considered retired, the liability of the insurer
is ended for payment of such compensation benefits. This section does
not apply to permanent partial disability benefits. Medical benefits
are expressly reserved to the claimant.
¶23 In construing the section,
the Supreme Court in Hunter quoted extensively from a prior
decision of this Court in Johnson v. Peter Kiewit & Sons, Inc.,
WCC No. 8411-2704 (1985). That case involved a 67 year old worker
who was receiving social security benefits but was supplementing the
benefits by working. She was injured at work. After initially paying
temporary total disability benefits, the insurer discontinued those
benefits based on section 39-71-710, MCA. She then sought permanent
partial benefits. Citing equitable considerations, this Court construed
section 39-71-710, MCA, as authorizing PPD benefits to totally disabled
workers:
. . . [E]quity demands
that individuals in the claimant's situation can be compensated to
some degree for injuries suffered while working. Otherwise, a nonsensical
result would follow: A "retired" individual who is only slightly injured
would qualify for workers' compensation benefits, while a "retired"
individual who suffers a permanently totally disabling injury would
not.
. . . If Section 39-71-710,
MCA, were strictly construed, [claimant's] injury would be completely
noncompensable.
To avoid this
unjust result, this Court concludes that the permanently totally disabled
claimant is entitled to receive permanent partial disability benefits
pursuant to MCA Section 39-71-710. The Court is aware that it is stretching
its mandate of liberal construction, but it has not stretched it to
the breaking point.
Hunter, 224 Mont.
at 484, 730 P.2d at 1141 (emphasis added). In its decision in Hunter,
this Court extended the logic to cases in which the claimant was injured
prior to receiving retirement benefits.
¶24 After quoting from Johnson
the Supreme Court in Hunter adopted this Court's construction
of section 39-71-710, MCA, citing the liberal construction rule mandated
at that time:
Claimant contends Section
39-71-710, MCA, does not address the specific facts of this case.
However, liberal construction of the statute, as mandated
by Section 39-71-104, MCA, results in the conclusion claimant is entitled
to an award of permanent partial benefits upon reaching the age of
65.
Section 39-71-710, MCA,
explicitly provides: "This section does not apply to permanent partial
disability benefits." In the present case, claimant, who had been
receiving temporary total disability benefits, petitioned the Workers'
Compensation Court for an award of permanent partial benefits commencing
on her 65th birthday.
As noted by the Workers'
Compensation Court in Johnson, supra, strict construction
of Section 39-71-710, MCA, would result in an absurdity: A worker
injured past the age of 65 may recover compensation if partially disabled
but not if totally disabled. We agree with the court's interpretation
of Section 39-71-710, MCA, allowing for payment of permanent partial
disability benefits to a permanently totally disabled claimant who
has reached the age of 65.
Hunter, 224 Mont.
at 484-85, 730 P.2d at 1141 (emphasis added).
¶25 The rule of liberal construction
was repealed in 1987. 1987 Mont. Laws, ch. 464, § 68. Moreover, section
39-71-710, MCA, has been substantially amended (as has section 39-71-703,
MCA) and can be construed as written without giving rise to the absurd
identified in Hunter and Johnson.(2)
At the time of Hunter, section 39-71-710, MCA, provided for
post-retirement continuation of full permanent partial disability benefits.
The 1991 and 1997 versions of the section do not. While the amendments
allow a permanently partially disabled individual to receive some additional
benefits post-retirement age in the form of an impairment award, all
benefits based on wage loss and other factors are cut off. In addition,
since Hunter the legislature has sharply curtailed permanent
partial disability benefits but not permanent total disability benefits.
That sharp reduction in benefits provides a good reason for permitting
an impairment award to be paid out to a partially disabled claimant
reaching retirement age but not to a totally disabled claimant.
¶26 Most importantly, the
language of the 1991 and 1997 versions of section 39-71-710, MCA, constrain
the application of the maxims invoked in Hunter. As already
noted in paragraph 21, use of the language "remains liable for . . .
any impairment award" can only be construed as indicating that liability
for the award must exist in the first instance, independently of section
39-71-710, MCA. The language is plain on its face and must be applied
as written. The Court cannot write in a new provision for an impairment
award to which a claimant is not already entitled. "In the construction
of a statute, the office of the judge is simply to ascertain and declare
what is in terms or in substance contained therein, not to insert what
has been omitted or to omit what has been inserted." § 1-2-101, MCA.
¶27 In conclusion, I fail
to find any statutory basis for payment of an impairment award to a
permanently totally disabled worker. Since there is no basis for such
payment, there is no basis for holding that such an award may be paid
concurrently with permanent total disability benefits. Thus, the first
issue raised by the parties must be answered in the negative. Since
the other issues concerning impairment awards depend on an affirmative
answer to the first issue, they are moot.
¶28 Finally, claimants have
raised a constitutional issue which must be addressed in light of the
foregoing decision. In their fourth contention of the stipulation, they
contend:
4. It is the position
of the Petitioner[s] that permanently, totally disabled persons should
have the same right to receive an impairment benefit as those individuals
classified as partial, permanently disabled and [to] not allow the
payment of an impairment benefit, classified as a permanent total
benefit to a totally disabled person, is a violation of substantive
due process and equal protection as those terms are defined by Montana
case law and constitutional law, specifically, Article II, of the
Montana Constitution.
(Stipulation at 4.) During
oral argument, I bifurcated this issue, reserving it for further argument
in the event of a decision adverse to claimants on their statutory arguments.
This issue therefore remains and will be considered after further briefing
and argument. I will rule on the penalty and attorneys' issues when
the constitutional challenge is resolved.
ORDER
¶29 1. Permanently totally
disabled workers are not entitled to impairment awards under the 1991
and 1997 Montana Workers' Compensation Acts, whether concurrently, upon
reaching retirement age, or otherwise. However, the State Fund's agreement
to pay lump-sum impairment awards to claimants Fisch and Frost is enforceable.
¶30 2. No determination concerning
the constitutional issue raised by claimants is made at this time. That
issue shall be further briefed and argued. A separate scheduling order
shall issue.
DATED in Helena, Montana,
this 13th day of September 2000.
(SEAL)
/s/ Mike
McCarter
JUDGE
c: Mr. Monte D. Beck
Mr. Stephen D. Roberts
Mr. Lon J. Dale
Mr. Greg E. Overturf
Date Submitted: May 3, 2000
1. I do
not decide here whether class certification is appropriate. That matter
will be considered separately.
2. Section
39-71-710, MCA (1991, 1997), has two subparts. The first, which is at
issue in this case, applies to claimants injured before reaching social
security retirement age. The second applies to workers injured after
they have reached that age. I do not consider whether construction of
the second subpart as precluding an impairment award to a permanently
totally disabled worker would create an absurd result.
