39-71-1107, MCA

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 Activities such as occasional assistance with bowel and bladder functions, and assistance with self-care such as changing a water diverter for bathing, adjusting exercise equipment, and loading and unloading a wheelchair satisfy the criteria of § 39-71-1107(1)(b), MCA.
Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 Where the claimant’s treating physician did not direct additional services to be provided which were recommended by a life care planner, the additional services are not properly taken into account when calculating the amount of domiciliary care an injured worker is entitled to receive under § 39-71-1107(1)(c), MCA.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 For services to constitute reasonable domiciliary care under § 39-71-1107(1)(d), MCA, they must be of a type beyond the scope of normal household duties. Activities such as meal preparation, basic housekeeping, and taking out the garbage are not beyond the scope of normal household duties and are not properly considered to be services for which the insurer is liable.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 Section 39-71-1107(4), MCA, states that domiciliary care provided by a family member for a period of less than 24 hours a day may not exceed the prevailing hourly wage, and an insurer is not liable for more than 8 hours of care per day. Effective June 22, 2007, the Department of Labor and Industry began publishing “Montana Prevailing Wage Rates for Nonconstruction Services.” From June 22, 2007, forward, Petitioner is entitled to domiciliary care at the rate which is specified for his region at the prevailing hourly wage published by the Department. Although the Department also lists the benefit rates for the jobs surveyed, these benefits cannot be reasonably included within the definition of “prevailing hourly wage” and are therefore not added to the amount due the claimant.

[1999] Bustell v. Ins. Co. of PA [2/26/03] 2003 MTWCC 11 The rate of reimbursement for domiciliary care furnished by a non-family member is not limited to the rate paid by medicaid for care in a nursing home. 39-71-1107(3), MCA (1999).
[1997] Cheetham v. Liberty NW [12/18/01] 2001 MTWCC 65 Section 39-71-1107(1)(a), MCA, on its face limits liability for domiciliary care benefits to periods after the insurer has notice or knowledge of the need for domiciliary care.
[1997] Cheetham v. Liberty NW [12/18/01] 2001 MTWCC 65 The knowledge requirement in section 39-71-1107(1)(a), MCA, has no application where the insurer denies all liability for a claim.

[1995] Powell v. State Fund [12/14/00] 2000 MT 31 The statutory cap on domiciliary care benefits provided in section 39-71-1107(3), MCA (1995) does not violate the equal protection provisions of the 14th Amendment of the US Constitution and Article II, section 4, of the Montana Constitution or the right to substantive due process within the 14th Amendment and Article II, section 17, of the Montana Constitution.

[1995] Powell v. State Fund [2/4/99] 1999 MTWCC 10 The WCC will not consider a constitutional challenge to subsection (4) of section 39-71-1107, MCA (1995) where claimant has no claim under that subsection. Objections to standing cannot be waived and may be considered sua sponte by the Court. Section 39-71-1107(3), MCA (1995) does not violate federal or state guarantees of equal protection and substantive due process. To succeed in a constitutional challenge, claimant must persuade the Court beyond a reasonable doubt that the statute is not constitutional. Equal protection provisions do not prohibit different treatment of different groups or classes of people so long as all persons within a group or class are treated the same. The essence of substantive due process is similar as applied to this case; the statute must be reasonably related to a permissible legislative objective. A court considering a constitutional challenge is not limited to reasons for the legislation as set out on the face of the statutes or in legislative history, but may consider any possible purpose of the legislation. Here, while the goal of cost containment alone may not save legislation which treats similarly situated people differently, there are cogent and logical reasons for limiting payments to family members providing 24-hour domiciliary care. Family members providing such care typically reside with the injured worker, meaning they generally continue their ordinary life activities during some of the day, and typically do not provide the trained, focused, professional care given by non-family members who are working away from their own home. These differences justify the statute.