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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1997 MTWCC 14
OF JAMES JACQUES, Deceased,
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Summary: Motion for summary judgment presented two issues: (1) whether claimant was entitled to a psychological impairment rating under the 1989 WCA; and (2) whether a psychologist, not licensed to practice medicine in the State of Montana, can render an impairment rating valid under the WCA?
Held: Where neither section 39-71-703, MCA (1989), nor section 39-71-711, MCA (1989) distinguish between awards for physical impairments and awards for psychological impairments, the Court will not read such a distinction into the statutes. While the statutes do not restrict impairment awards to physical impairments, they do preclude a psychological impairment award, and any other permanent partial disability award, where the claimant does not have some physical restriction due to his industrial injury. During argument, petitioner conceded that section 39-71-711, MCA (1989) limits impairment evaluations to medical doctors and chiropractors, thereby precluding valid impairment ratings by a psychologist.
The petitioner in this case is the personal representative of the estate of James Jacques. Mr. Jacques was injured in an industrial accident on June 22, 1990. He died on December 15, 1993, of a condition unrelated to his industrial injury. His estate now seeks payment of an impairment award for a psychological impairment which was allegedly attributable to or aggravated by Mr. Jacques injury.
On December 11, 1996, the respondent moved for summary judgment on the ground that the Workers' Compensation Act does not provide for permanent partial disability benefits based upon a psychological impairment. (Motion for Summary Judgment Pursuant to Rule 24.5.329 of the Procedural Rules of the Workers' Compensation Court (Motion for Summary Judgment) at 2; Respondent's Brief in Support of Motion for Summary Judgment Pursuant to Rule 24.5.329 of the Procedural Rules of the Workers' Compensation Court ( Respondent's Brief).) Secondarily, respondent urged that if such impairment award is payable then it cannot be based on an impairment rating rendered by a Ph.D. psychologist. (Respondent's Brief at 6.) Respondent specifically challenges an impairment rating rendered by James V. English, Ph.D., who is a clinical psychologist. (Id.)
On December 13, 1996, petitioner's counsel invoked Court rule 24.5.329(1)(c), which provides:
A telephone conference was held with counsel on December 16, 1996. The conference culminated in a determination that petitioner should be allowed further discovery before responding to the summary judgment motion. The trial setting was vacated and petitioner was granted 60 days in which to complete discovery and file an answer brief to the motion. (Order Extending Time for Answering Discovery and Motion for Summary Judgment, December 23, 1996.)
On January 23, 1997, the respondent filed Respondent's Supplemental and Amended Brief in Support of Motion for Summary Judgment Pursuant to Rule 24.5.329 of the Procedural Rules of the Workers' Compensation Court along with a Motion for Telephone Conference for Clarification of Court Order of December 23, 1996. The Court initiated a second conference call to discuss the motion. During that conference the Court and counsel agreed that two issues raised in this case are appropriately resolved by way of partial summary judgment. The Court phrased those issues as follows:
(Court File Memo, January 24,1997 at 1.) The Court provided counsel with an opportunity to review the issues and submit alternative phraseology.
On February 3, 1997, the respondent filed a Response to Honorable Mike Mccarter's Workers' Compensation Court Memorandum Regarding Summary Judgment Issue (Respondent's Response). In that response, the respondent urged that the issues be reframed as follows:
(Respondent's Response at 2.) Respondent then argued the issues as stated. (Id.)
On February 5, 1997, the Court received Petitioner's Reply Regarding Summary Judgment Issues. Therein, the petitioner accepted the Court's statement of the issues and objected to the respondent's restatement of the issues as "overly broad and general." I then determined that the differences in the phraseology of the issues were unimportant. My staff contacted petitioner's attorney and asked him to file a brief respecting the merits of the issues. On March 13, 1997, petitioner's attorney filed Petitioner's Brief in Support of Motion for Partial Summary Judgment. With the filing of that brief, the Court deemed the motion for summary judgment submitted and ready for decision.(1)
Court rule 24.5.329 governs motions for summary judgment. Subsection (2) of the rule provides:
The issues raised by summary judgment are purely legal ones involving statutory interpretation. Two alleged facts, however, provide a background for the legal discussion. Those facts are:
These facts appear from the briefs of the parties and are not provided to the Court in the format required by Rule 24.5.329(3).(2) Therefore, the two facts are assumed true for purposes of discussion only and are not adopted by the Court as undisputed. Insofar as those facts are relevant to the ultimate issues in this case, they will have to be established at trial.
The respondent, Borden, Incorporated (Borden), argues that as a matter of law it is not liable for an impairment award based on a psychological impairment rating. It further argues that if an impairment award may be based on a psychological impairment, then the Court cannot consider any impairment rating rendered by a Ph.D. psychologist.
Mr. Jacques was injured on June 22, 1990. (Petition para. 1; Response para.1.) Thus, the 1989 version of the Workers' Compensation Act (WCA) governs the benefits payable with respect to his injury. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Under the 1989 WCA, impairment awards were governed by sections 39-71-703(1) and -711, MCA (1989). Section 39-71-703(1), MCA (1989), provided in pertinent part:
Section 39-71-711, MCA (1989), provided:
Initially, the Court recognizes that section 39-71-711, MCA, provides a procedure for rendering an impairment rating. However, procedure is governed by the law in effect at the time of the adjudication. Blythe v. Radiometer Am., 262 Mont. 464, 866 P.2d 218 (1993). The rule concerning the "law in effect at the time of the injury" only applies to statutes governing substantive entitlement to benefits. The Court need not concern itself with the provisions of subsections (3) through (7) governing the appointment of impairment evaluators since those provisions have been repealed. 1991 Montana Laws, ch. 558, § 7. However, the procedural provision governing who can render an impairment rating, § 39-71-711(2), MCA (1989), has been retained and therefore applies in this case.
Section 39-71-711(1), MCA (1989), also sets forth substantive criteria for impairment ratings. The 1995 legislature added an additional criteria for such ratings, requiring that the rating "must be established by objective medical findings," § 39-71-711(1)(d), MCA (1995); 1995 Mont. Laws, ch. 243, § 15; otherwise the criteria remain the same.
The initial issue in this case is whether an impairment award can be based on a psychological impairment rating. Neither section 39-71-703, MCA, nor 39-71-711, MCA, distinguish between awards for physical impairments and awards for psychological impairments. Respondent argues, however, that impairment awards are limited to physical impairments because the WCA does not expressly mention awards for psychological impairments and because the definition of permanent partial disability, § 39-71-116(14), MCA, includes a requirement that the claimant suffer a physical restriction as a result of his industrial accident. Neither argument is persuasive.
Where the words of a statute are plain, the statute must be applied as written; the Court cannot look to legislative history for intent or meaning contrary to unambiguous language. See Lodge Grass High School Dist. No. 2 v. Hamilton, 264 Mont. 290, 293, 871 P.2d 890, 892 (1994). The Court can neither omit provisions set out in the statute nor write in new requirements. Russette v. Chippewa Cree Housing Authority, 265 Mont. 90, 93, 874 P.2d 1217, 1219 (1994).
Sections 39-71-703 and -711, MCA, refer to "impairment" awards and ratings. They do not refer to "physical impairment" ratings or awards. (3) Thus, the sections must be read as encompassing all impairment ratings, whether physical or psychological, so long as all other requirements for rendering the rating and making the award are met. For example, section 39-71-711, MCA, requires that the rating be based on the AMA impairment guides; thus claimant must prove that the psychological impairment rating was made pursuant to the guides.
Respondent's reliance on the definition of permanent partial disability is misplaced. Section 39-71-116(13), MCA (1989), provides:
The section predicates any entitlement to permanent partial disability benefits upon proof that claimant suffers from a "medically determined physical restriction." It refers, as do sections 39-71-703 and -711, MCA, to "impairment," not to "physical impairment." The section does not restrict impairment awards to physical impairments, although it does preclude a psychological impairment award and any other permanent partial disability benefits where the claimant does not have some physical restriction due to his industrial accident.
I conclude that the 1989 WCA does not preclude an impairment award based on a psychological condition where the claimant also suffers a concomitant physical restriction. In this case the respondent concedes that claimant has a 5% physical impairment rating and has not provided facts demonstrating that claimant did not suffer from a medically determined physical restriction. If petitioner proves that Mr. Jacques suffered a medically determined physical restriction on account of his industrial accident and that all other requirements for a further impairment award are satisfied, then she may recover for a psychological impairment.
Petitioner concedes that under current law a psychologist may not render an impairment rating. The concession was inevitable since both the 1989 and 1995 versions of section 39-71-711, MCA, limit impairment evaluations to medical doctors and chiropractors. A psychologist is neither.
Petitioner has indicated her intent to obtain a psychological impairment rating from an M.D. psychiatrist and also notes that legislation pending before the 1997 Montana legislature, if adopted by the time of trial, may permit impairment ratings by psychologists. Thus, my ruling limiting impairment evaluations to medical doctors and chiropractors is not dispositive of the petition. Triable issues of fact remain.
During telephonic discussions with counsel, respondent's attorney has indicated that even if petitioner presents a psychiatrist's impairment rating there may still be evidentiary issues concerning the basis and validity of the rating. Those issues will be resolved at trial and counsel should be prepared to address them at that time.
1. The 1987 Workers' Compensation Act does not on its face preclude an impairment award based on a psychological impairment rating. However, the petitioner's decedent must satisfy the definition of permanent partial disability, § 39-71-116(13), MCA (1989), and the rating must otherwise satisfy the substantive criteria set out in section 39-71-711, MCA (1989).
2. Under the 1987 WCA, as well as the current WCA, a psychologist may not conduct an impairment evaluation rating. As a corollary, any impairment rating by a psychologist is inadmissable to prove an impairment rating.
3. Triable issues of fact remain, therefore, the case has been placed on the June trial calendar for Great Falls.
4. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
5. Any party to this dispute may have 20 days in which to request a rehearing from this Order Granting Partial Summary Judgment.
DATED in Helena, Montana, this 20th day of March, 1997.
c: Mr. J. David Slovak
1. The respondent has now submitted three briefs addressing the issues raised in its summary judgment motion. The Court deems a further, reply brief unnecessary.
2. ARM 245.329(3) provides:
The parties have not complied with the rule, however, as noted, the issues presented by the motion are legal ones that do not require any factual determinations.
3. Respondent refers to minutes of the 1987 Senate Committee on Labor and Industry which refer to "physical impairment." However, the "physical impairment" language quoted by respondent was not incorporated into final statute and the minutes cannot be used to contradict plain words in the final statute.
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