39-71-1012, MCA


[1989] Bare v. Liberty Mutual Fire Ins. Co., 1998 MT 106 Supreme Court affirmed WCC conclusion that WCC lacked jurisdiction to determine claimant's disability status under the 1989 WCA where claimant had failed to exhaust the rehabilitation panel procedures under sections 39-71-1012 through 39-71-1033, MCA (1989). The WCC had determined that the Department of Labor had original jurisdiction to assess return-to-work options for claimant. If the DOL made a final decision, the WCC had appellate jurisdiction on challenge of that decision; it had original jurisdiction only when the DOL determined that none of the statutory return-to-work options were appropriate. In agreeing, the Supreme Court concluded that the statutory rehabilitation panel procedures were "dispute resolution requirements" under section 39-71-2905, MCA (1989), meaning the WCC had jurisdiction over the dispute only after those requirements were satisfied.

[1989] Bare v. Liberty Mutual Fire Ins. Co. [5/27/97] 1997 MTWCC 32 (WCC No. 9704-7739) Where claimant's petition shows that he seeks permanent total disability benefits under the 1989 WCA, but he has not exhausted the rehabilitation procedures under section 39-71-1012 through -1003, MCA (1989), his petition must be dismissed. (Note: Affirmed at Michael Bare v. Liberty Mutual Fire Ins. Co., 1998 MT 106.)

[1987] Chapman v. National Union Fire Ins. Co. of Pittsburgh [6/25/96] 1996 MTWCC 44 Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.

Bird v. City of Lewistown [11/02/95] 1995 MTWCC 89 DOL hearing officer misapprehended the evidence and applied inappropriate legal standard in determining that claimant could return to work in a related occupation suited to his education and marketable skills pursuant to option (c) of section 39-71-1012, MCA (1987-1989). The only evidence presented that claimant could return to work in a related occupation involved the single position of Street Maintenance Supervisor, but the evidence did not show that this job is typically available, as required by statute.
Elam v. State Compensation Ins. Fund [08/25/95] 1995 MTWCC 65 Substantial evidence supports DOL hearing officer’s determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer’s credibility determination that claimant’s perception of his disability was “to a great extent self-limiting and rather incredible.” Other testimony and documentation also demonstrates claimant’s hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.