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No. 97-630


1998 MT 125


Petitioner and Respondent,



Respondent, Appellant and
Insurer for



APPEAL FROM: The Workers' Compensation Court,
Honorable Mike McCarter, Judge Presiding.


For Appellant:

Larry W. Jones, Missoula, Montana

For Respondents:

David W. Lauridsen, Columbia Falls, Montana

Submitted on Briefs: March 26,1998
Decided: May 26, 1998


Chief Justice J. A. Turnage delivered the Opinion of the Court.

1 In this action, the Workers' Compensation Court declared unconstitutional the benefit reduction provision of  39-71-416(1), MCA. The
employer's insurer, Liberty Northwest Insurance Corporation (Liberty),
appeals. We affirm.

2 The issue is whether the Workers' Compensation Court erred in ruling
that  39-71-416(1), MCA, violates a worker's right to full legal redress under
Article II, Section 16 of the Montana Constitution.

3 Colleen Connery was injured on December 10, 1995, when a co-employee, Mark Roy, collided with her on the Big Mountain Ski Hill. The
injury occurred within the course and scope of Connery's employment.
Connery v. Liberty Northwest Ins. Corp. (1996), 280 Mont. 115, 929 P.2d

4 In addition to filing for workers' compensation benefits, Connery filed
a claim against Roy's homeowner's insurance carrier. The elements of the
claim against Roy's insurer were past medical expenses of $3,451.27; future
medical expenses of $500; past wage loss of $2,280; pain and suffering of
$25,255; and loss of enjoyment of an established course of life of $25,255. In
February 1997, Connery settled her claim with Roy's insurer for $27,500.

5 Liberty has paid Connery wage loss benefits of $1,352.34 and medical
benefits of $2,570.95 and $376.57. The parties agree that Connery has a 7
percent impairment rating as a result of her injury, entitling her to permanent
partial disability benefits of $1,354.12. However, Liberty has refused to pay
Connery's impairment rating on the basis that an offset under the 30 percent
reduction of benefits pursuant to  39-71-416(1), MCA, relieves it of that

6 Section 39-71-416(1), MCA, provides:

If an employee is injured or dies and obtains a third-party
recovery, settlement, or award, an insurer may reduce by 30%
the benefits paid or that are required to be paid to the employee
or beneficiary pursuant to chapter 71 or 72 as a result of the
injury or death. The reduction applies to any recovery, settlement, or award regardless of the form of action or the nature of
damages. The total of any reductions may not exceed 30% of
any third-party recovery, settlement, or award.

Liberty asserts that Connery in fact owes it $340.08 if the full 30 percent
reduction is taken.

7 The Workers' Compensation Court reviewed this case on an agreed
statement of facts. The court ruled that on its face,  39-71-416(1), MCA,
ignores a worker's right to full legal redress as guaranteed under Article II,
Section 16, Mont. Const. It declared  39-71-416(1), MCA, unconstitutional
and void, and concluded that Liberty was liable to Connery for the full amount
of benefits otherwise due her under the Workers' Compensation Act without
reduction on account of  39-71-416(1), MCA.


8 Did the Workers' Compensation Court err in ruling that  39-71-416(1),
MCA, violates a worker's right to full legal redress under Article II, Section 16
of the Montana Constitution?

9 Our standard of review of a trial court's conclusions of law is simply
whether the lower court's interpretation of the law is correct. Francetich v. St.
Comp. Mut. Ins. Fund (1992), 252 Mont. 215, 218, 827 P.2d 1279, 1281.
When the constitutionality of a statute is challenged, we begin with the
presumption that the statute is constitutional, and the party attacking it has the
burden of proving it unconstitutional. Francetich, 252 Mont. at 218-19, 827
P.2d at 1282.

10 Liberty points out that this Court has previously endorsed the
legislature's elimination of certain types of work-related injuries from coverage
under the Workers' Compensation Act. In Stratemeyer v. Lincoln County
(1993), 259 Mont. 147, 855 P.2d 506, the Court affirmed the exclusion of
mental-mental and mental-physical claims from workers' compensation
coverage. In Watson v. Seekins (1988), 234 Mont. 309, 763 P.2d 328, we
upheld a statute requiring an insurer to reduce its payment of total disability
benefits to partially offset social security benefits, which result, as the
concurring opinion pointed out, was dictated by federal law limiting total
social security and workers' compensation benefits. And, in Murer v. State
Compensation Mut. Ins. (1994), 267 Mont. 516, 885 P.2d 428, the Court
upheld a temporary cap on maximum permanent and temporary total disability
benefit amounts. Liberty maintains that like the laws approved in those cases,
the 30 percent statutory reduction results in an insurer's decreased liability for
the payment of benefits without invading a claimant's third-party recovery.

11 Unlike the provisions upheld in the cases cited by Liberty, the statute
here at issue does not create a new class of benefits or eliminate any benefits,
nor is it dictated by federal law. Instead, the statute gives the insurer a
separate right to reduce benefits whenever an injured worker has obtained a
third-party settlement or award. Article II, Section 16, Mont. Const., provides:

Courts of justice shall be open to every person, and
speedy remedy afforded for every injury of person, property, or
character. No person shall be deprived of this full legal redress
for injury incurred in employment for which another person may
be liable except as to fellow employees and his immediate
employer who hired him if such immediate employer provides
coverage under the Workmen's Compensation Laws of this state.
Right and justice shall be administered without sale, denial, or

In none of the cases cited by Liberty did the benefit entitlement reduction
provision at issue conflict with this full legal redress provision of Montana's

12 Liberty wisely does not claim a subrogation interest in Connery's third-party settlement. An insurer may subrogate only if a client has been "made
whole" by a third-party recovery. In 1987, the legislature attempted to
statutorily abolish the "made whole" rule by expressly providing insurers with
the right to recover the full amount of their subrogation interests regardless of
whether a claimant had been made whole for his entire loss. Section 39-71-414(6)(a), MCA (1987). The statute was challenged as violative of Article II,
Section 16, Mont. Const., and this Court struck it down. In doing so, we

Section 39-71-414(6)(a), MCA, restricts an injured
worker's right to obtain a full legal redress against third-party
tortfeasors. The second sentence of Article II, Section 16, states
this cannot be done. The record of the debate at the Convention
is clear that this was the delegates' intent in amending the
provision. The second sentence is mandatory, prohibitive, and
self-executing and it prohibits depriving an employee of his full
legal redress, recoverable under general tort law, against third

Francetich, 252 Mont. at 224, 827 P.2d at 1285.

13 In the present case, as the Workers' Compensation Court correctly
reasoned,  39-71-416(1), MCA, facially ignores the worker's right to full
legal redress. If an injured worker gets anything, however short of full legal
redress, the insurer is entitled to reduce by 30 percent the benefits otherwise
payable to the injured worker. The net effect of the statute is to transfer
dollars recovered from the third-party tortfeasor back to the insurer. That
transfer is plainly contrary to the full legal redress provision.

14 Liberty argues that the 30 percent reduction does not affect Connery's
third-party recovery and that the statute merely deals with a claimant's
entitlement to benefits. This argument is without merit. But for her third-party recovery, Connery would be entitled to full workers' compensation
benefits without reduction. It is the third-party recovery which triggers the
insurer's right to reduce her benefits. As the Workers' Compensation Court
pointed out, the effect of the statute is more lethal than any subrogation
provision because the reduction is automatic and arbitrary.

15 We conclude that the Workers' Compensation Court did not err in
holding unconstitutional  39-71-416(1), MCA. We therefore affirm the
court's decision.


We concur:





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