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THE SUPREME COURT OF THE STATE OF MONTANA
Petitioner and Appellant,
Respondents and Respondents.
FROM: The Workers' Compensation Court of the State of Montana,
Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana
W. Jones, Senior Attorney, Liberty Northwest Insurance Corp.,
Decided: December 10, 2002
1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
2 Jeremy Ruhd (Ruhd) appeals from the summary judgment entered by the Workers' Compensation Court in favor of Respondents Liberty Northwest Insurance Corporation (Liberty) and Richard Barber, d/b/a Barber Homes. We reverse and remand for further proceedings.
3 Ruhd raises three issues on appeal, which we state as follows:
4 1. Did the Workers' Compensation Court err in determining that Ruhd, a permanently totally disabled worker, is not entitled to an impairment award?
5 2. Did the Workers' Compensation Court's interpretation of the Workers' Compensation Act violate constitutional guarantees of equal protection and full legal redress?
6 3. Did the Workers' Compensation Court err in failing to grant Ruhd's motion to amend his petition to maintain a class action and for joinder of claimants for purposes of common fund attorney fees?
7 Ruhd, while employed for Barber Homes, suffered a traumatic brain injury on November 23, 1999, when he fell two and a half stories from a scaffolding on which he was framing a house. He was permanently and totally disabled by his injuries, and his treating physician determined that Ruhd had a 74 percent whole person impairment rating according to the AMA Guide to Evaluation of Permanent Impairment, 5th Edition.
8 Liberty accepted
liability for Ruhd's industrial injuries, paying medical, wage loss and
total disability benefits, but denied Ruhd's claim for payment of an impairment
award. On January 23, 2002, Ruhd filed a petition with the Workers' Compensation
Court, seeking a determination that he was entitled to an impairment award.
On June 18, 2002, Ruhd filed a motion to amend his petition to join similarly
situated claimants in a class action, pursuant to Rule 23, M.R.Civ.P.,
and for common fund attorney fees pursuant to this Court's holding in
Murer v. State Fund (1993), 257 Mont. 434, 849 P.2d 1036. Liberty opposed
the motion, and moved for summary judgment, citing the Workers' Compensation
Court's earlier decision denying payment of an impairment award for permanently,
totally disabled workers in Fisch, Frost, and Rausch v. State Compensation
Insurance Fund, 2000 MTWCC 56, which was then pending on appeal to this
STANDARD OF REVIEW
10 We review the Workers' Compensation Court's conclusions of law to determine whether they are correct. Rausch v. State Compensation Ins. Fund, 2002 MT 203, 14, 311 Mont. 210, 14, 54 P.3d 25, 14. In workers' compensation cases, the law in effect at the time of the claimant's injury establishes the claimant's substantive right to benefits. State Fund v. McMillan, 2001 MT 168, 5, 306 Mont. 155, 5, 31 P.3d 347, 5.
11 Issue 1. Did
the Workers' Compensation Court err in determining that Ruhd, a permanently
totally disabled worker, is not entitled to an impairment award?
13 Issue 3. Did the Workers' Compensation Court err in failing to grant Ruhd's motion to amend his petition to maintain a class action and for joinder of claimants for purposes of common fund attorney fees?
14 In granting summary judgment to Liberty on the substantive issue raised by Ruhd's petition, the Workers' Compensation Court did not address Ruhd's motion to amend his petition for class certification and for common fund attorney fees, and thus, these issues were not resolved by the Workers' Compensation Court.
15 Ruhd requests that we grant the relief he sought in the Workers' Compensation Court by entering an order certifying a class of similarly situated claimants insured by Liberty, which he argues is distinguished from the claimants at issue in Rausch. He further requests an order establishing his entitlement to common fund attorney fees for that class.
16 Liberty asserts that it has contacted legal counsel involved in the Rausch matter and that they are claiming attorney fees in Ruhd's case. Liberty argues that because these issues have not been addressed by the Workers' Compensation Court, remand for consideration is appropriate. We agree. Because we do not have a record before us on any of the remaining issues, the Workers' Compensation Court is the appropriate forum for determination of these matters.
17 We reverse the judgment entered herein by the Workers' Compensation Court and remand for further proceedings consistent with this Opinion.
/S/ JIM RICE
/S/ PATRICIA COTTER
18 I concur in the Court's opinion. I write separately only to state my continued belief that the Court erred in Rausch, for the reasons stated in my dissent to that opinion. In my view, permanently totally disabled workers are not entitled to receive impairment awards in addition to their other workers' compensation benefits. See Rausch, 59-65 (Gray, C.J., dissenting). The Court having concluded otherwise, however, I am as bound by that conclusion as are all other Montanans.
/S/ KARLA M. GRAY
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