39-71-116, MCA

MONTANA SUPREME COURT DECISIONS

Wright v. Ace American, 2011 MT 43, 359 Mont. 332, 249 P.3d 485 Where a physician qualified as a treating physician when he first saw the claimant but no longer qualified at the time of trial due to the expiration of his Montana license, the Workers’ Compensation Court could consider the opinion and diagnoses offered by that physician.  To do otherwise would be absurd and contrary to § 39-71-105, MCA.

Wright v. Ace American, 2011 MT 43, 359 Mont. 332, 249 P.3d 485 Physicians licensed or certified in another state may qualify as a treating physician for a claimant residing out of state or upon approval of the insurer.  However, a claimant’s failure to obtain authorization does not automatically absolve an insurer of liability for treatment rendered by unauthorized physicians.  This Court must consider the diagnosis to determine whether the recommended treatment is appropriate.  In this case, the Workers’ Compensation Court correctly considered the opinion of a doctor not licensed in Montana who treated a Montana resident and who was not approved by the insurer even though the doctor could not be considered the claimant’s treating physician at the time of trial.
[1999] Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239 The Workers’ Compensation Court properly determined that decedent, who performed fencing repair work for a ranch owner, was not a casual employee where he was hired to complete a task in furtherance of an existing business. It is not significant that the employer was engaged in other businesses, or that decedent’s employment was only temporary. It is important that the decedent was employed to work in the course of appellant’s agricultural business (for which he claimed $140,983 in deductions on his federal income tax) and that the decedent’s only occupation at the time was to repair and replace fences for appellant.
[1995] Hiett v. Missoula County Public Schools, 2003 MT 213. The phrase “achieving” medical stability and “achieved” medical stability as used in sections 39-71-116(25) and 39-71-704(1)(f), MCA (1995), respectively, mean the sustainment of medical stability. Given this interpretation, a claimant is entitled to such “primary medical services” as are necessary to permit him or her to sustain medical stability, which includes prescriptions for pain and depression prescribed for a claimant who has reached maximum medical healing, was not employed, and may well fall out of maximum healing without medication.
[1993] Selley v. Liberty Northwest Ins. Corp. 2000 MT 76 Because insurer was in a better position than claimant to determine whether a particular physician had hospital admitting privileges, the Supreme Court found the insurer should have known the doctor did not have admitting privileges and should not have acquiesced in claimant's treatment by physician without admitting privileges, satisfying elements of equitable estoppel and preventing the insurer from refusing prospective compensation of physician as treating physician even though he did not meet the criteria of section 39-71-116(30), MCA (1993), regarding hospital privileges.
[1993] Selley v. Liberty Northwest Ins. Corp. 2000 MT 76 After approximately two years of compensating claimant's physician as her treating physician, insurer learned the doctor did not have admitting privileges at any hospital and thus did not qualify as a treating physician under section 39-71-116(30), MCA (1993.) Reversing WCC, Supreme Court held insurer was equitably estopped from refusing prospective compensation of physician as treating physician.
[1993] Dahl v. UEF, 1999 MT 168 Workers used to meet a company's baseline needs and working continuously and consistently for a company are not temporary employees within section 39-71-116(29), MCA (1993). Where section 39-71-401(1), MCA (1993), requires an employer to elect to be bound by the provisions of compensation plan No. 1, 2, or 3, an employer may not rely upon a workers' compensation policy purchased by a company furnishing employees and providing bookkeeping services such as issuing of payroll checks and paying employment taxes if the workers in question are in fact employees and not temporary workers. If a company has employees but does not itself carry workers' compensation insurance, the employer is uninsured under section 39-71-501, MCA (1993) if it does not itself carry workers' compensation insurance.
[1991] C. Loney Concrete Construction, Inc. v. ERD, UEF [8/15/97] 1998 MT 230 Supreme Court holds that WCC correctly interpreted the definition of temporary employee within section 39-71-116(24), MCA (1991). WCC correctly refused to consider the 1995 Montana Legislature's amendment to the definition of temporary worker where the transaction at issue occurred when 1991 law was applicable. As is well-settled, the law in existence at the time of the action in question is controlling in workers' compensation matters. The WCC correctly determined that a temporary worker employed to meet the an "emergency or short-term workload" within the 1991 statute is hired for a workload that "is greater than the normal workload and exists for a matter of weeks or at most a few months." The Supreme Court agreed that substantial evidence supported the DOL determination that some workers were not temporary workers where they were core workers consistently serving daily business functions, such as job supervision, bookkeeping and providing the minimum number of concrete workers to meet baseline level of job activity.
 
WORKERS' COMPENSATION COURT DECISIONS

Moreau v. Transportation Ins. Co. [08/26/15] 2015 MTWCC 17 An employer who obtained insurance under Plan No. 2 is not an “insurer” under § 39-71-116(9), MCA, and cannot be liable for benefits.

Davidson v. Benefis [05/30/14] 2014 MTWCC 18 Section 39-71-116(24), MCA, defines PPD as a condition in which a claimant, after reaching MMI, has a permanent impairment and is able to work but the impairment impairs the worker’s ability to work and suffers an actual wage loss.  Claimant could not return to her time-of-injury job due to her injury and suffered an actual wage loss, and had a preexisting unpaid permanent impairment rating of 3% established by objective medical findings.  She is entitled to payment of the 3% impairment award and PPD benefits under § 39-71-703(1), MCA.

Koch v. Employers Ins. Group [05/19/14] 2014 MTWCC 14 While the Court does not expect medical providers to know and apply the legal definition of “objective medical findings,” the Court will consider items enumerated in the statute as objective medical findings – such as muscle spasms – to be objective medical findings, even if the medical provider does not consider them to be.

Thompson v. Montana State Fund [08/30/13] 2013 MTWCC 25 Physician-approved job analyses were incongruous with Petitioner’s physical limitations and her sedentary-only release assigned by her treating orthopedist in light of Petitioner’s two neck fusions, her carpal tunnel syndrome, and her right-side vocal cord paralysis that left her voice barely audible at best and completely inaudible when fatigued.  In consideration of the totality of Petitioner’s limitations, the Court concluded Petitioner did not have a reasonable prospect of physically performing regular employment once she reached MMI for both her orthopedic condition and her vocal cord injury and was, therefore, PTD within the meaning of § 39-71-116(25), MCA (2007), and entitled to PTD benefits retroactive to when her TTD benefits were discontinued.

Langston v. MACO Workers' Compensation Trust [07/22/13] 2013 MTWCC 15 While Petitioner’s physician opined that carbon monoxide poisoning can cause neurologic complaints and that therefore her work environment was “suspicious as a potential etiology” for Petitioner’s neurologic symptoms, the carbon monoxide levels at Petitioner’s work were normal while the carbon dioxide levels were somewhat elevated.  Not only is Petitioner’s physician’s opinion far below the preponderance of evidence required to support an OD claim, the opinion has nothing to do with Petitioner’s claim for a pulmonary condition caused by her work environment.

Dostal v. Uninsured Employers' Fund [11/15/12] 2012 MTWCC 42 Section 39-71-116(10), MCA (1991), includes the Uninsured Employers’ Fund within the definition of “insurer.”  Although the Montana Supreme Court held that the UEF should not be treated as an insurer for the purposes of § 39-71-511, MCA (1991), this Court cannot expand the Montana Supreme Court’s ruling beyond its application to § 39-71-511, MCA, as this Court cannot overrule the legislature’s decision to include the UEF within the definition of “insurer” at § 39-71-116(10), MCA.

Dvorak v. Montana State Fund [10/23/12] 2012 MTWCC 36 In the year prior to the repeal of the Occupational Disease Act, the language of § 39-72-102(10), MCA (2003), differed from the language subsequently codified in § 39-71-116(20), MCA (2005), only by breaking the sentences into subparts.  The Court therefore held that cases which were decided under the ODA may remain applicable for occupational disease cases which fall under the WCA since the ODA’s repeal.

Holmes v. Safeway Inc. [03/06/12] 2012 MTWCC 8 After the insurer meets its initial burden of producing evidence that an injured worker is not permanently totally disabled by obtaining a physician’s approval of one or more jobs suitable for the injured worker, the burden then shifts to the injured worker to dispute the approved job analyses.  The mere testimony of the injured worker that he does not believe he can work in any capacity is insufficient to overcome evidence to the contrary.

Pearson v. MIGA [01/09/12] 2012 MTWCC 1 The Montana Insurance Guaranty Association is not an “insurer” as defined in § 39-71-116, MCA, and within the meaning of the WCA, which provides that attorney fees and penalties can only be awarded in cases involving insurers.  Since it is not an insurer, MIGA is not subject to the penalty and attorney fee statutes of the WCA.
Hale v. Liberty Mutual Middle Market [09/13/10] 2010 MTWCC 28 Under the statutory definition of maximum healing, an injured worker cannot be simultaneously at maximum healing and expected to improve with further treatment.  The Court therefore concluded that a claimant was not at MMI whose treating physician opined both that he was at MMI and that he could improve from additional treatment.
Wright v. Ace American Ins. Co. [05/24/10] 2010 MTWCC 11 Under § 39-71-116(36), MCA (2003), a physician who had admitting privileges to practice in a hospital in the community in which he is located, but whose Montana license has apparently expired, cannot be considered a treating physician.
Weidow v. Uninsured Employers' Fund [01/22/10] 2010 MTWCC 2 Where the claimant was injured while working on the construction of a vacation home, and significant evidence demonstrated that the employer/homeowner deducted the property as a business expense in previous years' tax returns, used the property's address as the registration address for his private airplane in order to avoid significant tax liability in his home state, and represented to the IRS that the property was a business property, the Court concluded the property was part of a "business" as defined in Colmore v. UEF, 2005 MT 39, and therefore the claimant's work on the property was not "casual employment."
Brown v. Hartford Ins. Co. [12/16/09] 2009 MTWCC 38 Where a PA-C and a physician both found medical evidence, substantiated by their clinical findings, that a claimant suffered from a bilateral strain or overuse condition related to her employment, these findings were “objective medical findings” within the meaning of the statute.
Raymond v. Uninsured Employers' Fund [09/04/09] 2009 MTWCC 31 Although in Colmore, the Supreme Court noted that “[t]he important fact” was that the injured worker’s only employment and occupation at the time of his injury was with the employer at issue, § 39-71-116(6), MCA, specifically states that casual employment is defined by whether the employment is in the usual course of business, etc., for the employer – not the employee. In Colmore, the Supreme Court ultimately based its decision that the injured worker was not a casual employee not on the employee’s occupation, but on the employer’s “profit motive.”
Raymond v. Uninsured Employers' Fund [09/04/09] 2009 MTWCC 31 Petitioner was found to be engaged in “casual employment” where he worked on a home being constructed as a second residence and where no evidence indicated that the homeowner deducted the property as a business expense. While the homeowner paid Petitioner with checks written on a business account, the evidence demonstrated that the homeowner wrote many personal checks on that account and the amount of money expended from this account far exceeded the amount claimed as business expenses. Petitioner failed to prove that the homeowner had a “profit motive” regarding this property.
VanVallis v. Liberty Northwest Ins. Co. 2008 MTWCC 25 Where Petitioner was released to return to work by her physician and Petitioner’s post-injury employment provided 25 hours of work per week, and the employer can provide a job that guarantees nearly two-thirds the hours as Petitioner’s time-of-injury employment, it is obvious to the Court that this employment is substantial and significant and therefore constitutes “regular employment” within the meaning of § 39-71-116(24), MCA.
Woodards v. MIGA [12/18/07] 2007 MTWCC 55 Under the definition of PPD found at § 39-71-116(23), MCA (2001), a claimant who the parties agree from the date of her injury forward has always been totally disabled and has never been able to return to work in any capacity has never been PPD as defined by the statute.
Stancil v. MHA Workers' Compensation Trust [12/06/07] 2007 MTWCC 51 Where Petitioner’s employer appropriately placed him in transitional employment following his post-injury return to the workplace, Petitioner demonstrated the ability to perform the essential job functions of the position and was personally and professionally qualified to perform the position, and eventually accepted the position on a permanent basis, the Court held that Petitioner did not suffer an actual wage loss when he was discharged from his employment as a result of behavioral issues. Therefore, Petitioner is not entitled to PPD or rehabilitation benefits.
Markovich v. Liberty Northwest [06/14/07] 2007 MTWCC 21 Where job analyses clearly demonstrate that Petitioner is qualified to earn more than he was earning in his time-of-injury employment, even though Petitioner is actually earning less due to his taking a job in a lower-paying field, Petitioner has not suffered a “wage loss” as defined by § 39-71-116(1), MCA.
Benhart v. Liberty Northwest [01/05/07] 2007 MTWCC 3 Petitioner suffered from Hepatitis C which significantly worsened after his industrial injury. Without reaching the issue of whether the worsening of Petitioner’s Hepatitis C can be taken into account in determining whether he is entitled to PTD benefits, the Court determined that Respondent failed to prove that in light of his industrial injury alone, Petitioner would have had a reasonable prospect of physically performing regular employment as contemplated by § 39-71-116(24), MCA.
[1995] Crawford v. Liberty NW [4/30/04] 2004 MTWCC 41 A claimant who has not reached maximum medical improvement is not eligible for permanent total disability benefits. §§ 39-71-702, MCA (1995-2001) and 39-71-116(23), MCA (1995). Lacking a factual foundation to do so, the Court will not address a contention that the provisions for permanent total disability allow permanent total disability benefits to be paid where the claimant has not reached maximum medical improvement with respect to all of his injuries but some of the claimant's injuries are at maximum medical improvement and are in themselves permanently totally disabling.

[1983] Fellenberg v Transportation Ins. Co. [3/19/04] 2004 MTWCC 29 Under the 1983 law, where a claimant suffering from an occupational disease voluntarily retired and removed himself from the labor market long before the onset of alleged permanent total disability, he has not suffered a wage loss attributable to his occupational disease and is not entitled to permanent total disability benefits on that basis. He also failed to provide persuasive evidence that he has no reasonable prospect of employment should he decide to return to the labor market and is therefore not entitled to permanent total disability benefits on that basis. Section 39-71-116(13), MCA (1981-1983). Affirmed in Fellenberg v. Transportation Ins. Co., 2005 MT 90

[1999] Colmore v. UEF/Forgey [3/4/04] 2004 MTWCC 22 Where the party hiring another to do fencing on a ranch for which the hiring party deducts costs of the ranch operations as a business expense on his federal income tax return; where the hiring party maintains significant farm equipment on the ranch; and where the hiring party plans to develop for agricultural purposes, the party employed to do fencing is not a casual employee under section 39-71-401(2)(b), MCA (1999). § 39-71-116(7), MCA (1999). (Note: WCC affirmed on this ground in Colmore, et al. v. Uninsured Employers' Fund, 2005 MT 239.)
[1991] Re: Colon, Edwardo [12/12/02] 2002 MTWCC 63 While the statute governing death benefits provides for payment of a minor child's share to the surviving parent, by expressly providing benefits for the child the statute contemplates that the benefits will be applied to benefit the child, hence where the parent provides no support to the child the benefits may be redirected to the child and the child's guardian. (Construing sections 39-71-721, -723 and -116(3), MCA (1991).)
[1999] Travelers v. Martini, M.D. [6/06/02] 2002 MTWCC 31 Section 39-71-116(36), MCA, defines treating physician as the medical provider "primarily responsible for treatment of a worker's compensable injury." A medical doctor who is primarily responsible for the treatment and maintained supervision and control over the nurse practitioner's services is entitled to reimbursement for the nurse practitioner's services.
[1995] Hiett v. MSGIA [9/6/01] 2001 MTWCC 52 After claimant has reached MMI, she is not entitled to continued coverage of prescription medications under provisions authorizing primary medical services, § 39-71-704(1)(a), MCA (1995), because such services are defined as and limited to services "necessary for achieving medical stability." § 39-71-116(25), MCA (1995)(emphasis added). See Hiett v. Missoula County Public Schools, 2003 MT 213.
[1999] Daulton v. MHA Workers' Comp. Trust [8/03/01] 2001 MTWCC 37A Claimant's subjective complaints that her condition was worsening does not contradict a finding that she has reached maximum medical improvement where she has presented no medical evidence that further medical treatment would materially improve her condition. § 39-71-116(18), MCA (1997-1999).
[1993] Dahl v. UEF [5/2/00] 2000 MTWCC 25. On remand from the Supreme Court, which held that companies receiving workers from temporary employment agencies must maintain their own WC coverage and cannot rely on their temporary agency to provide coverage, the WCC held that section 39-71-116(29), MCA (1993), which defines "temporary worker," was not unconstitutionally vague. On its face, the statute distinguishes between temporary and permanent employees and limits the use of temporary employees to emergency situations or to fill in for permanent employees on leave. This definition is comprehensible as applied to employees at issue.
[1995] Harned v. State Fund [6/8/99] 1999 MTWCC 38 Treating physician's opposition to surgery recommended by independent medical examiner to which claimant was referred as part of managed care organization handling of case was not fatal to demand for surgery based on recommendation of IME physician/surgeon.
[1993] Selley v. Liberty Northwest Ins. Corp. [11/16/98] 1998 MTWCC 82 The insurer was not equitably estopped from refusing future payment to claimant's physician, whom it learned did not have hospital admitting privileges and thus did not qualify as a treating physician, where the insurer did not make any representation or concealment of fact and was not shown to have had knowledge that the doctor did not meet statutory criteria for a treating physician. [Note: the WCC was reversed on this point; see Selley v. Liberty Northwest, 2000 MT 76.]
[1991] C. Loney Concrete Construction, Inc. v.RD, UEF [8/15/97] 1997 MTWCC 47 In this second appeal of this case, a concrete contractor challenges the second determination of the Department of Labor that none of the contractor's workers meet the definition of "temporary worker" in section 39-71-116(24), MCA (1991). Careful reading of the hearing officer's decision indicates that he found the evidence as to some employees inconclusive and resolved the status of those workers based on the contractor's failure to prove they were temporary workers. This analysis improperly shifted the burden of proof to the contractor. As to other workers, the record supports the hearing officer's conclusion they were baseline and not temporary workers. As held in the prior appeal, the phrase "emergency or short-term" within section 39-71-116(24), MCA (1991) means as follows: emergency contemplates something unforseen and unexpected, requiring immediate action; short-term contemplates a workload which is greater than a normal workload and exists for a matter of weeks or at most a few months. The hearing officer erroneously concluded that the contractor must include an expected need for short-term employees in his overall volume of business and insure an average number of such employees. As held previously, workers furnished for short-term overloads, either for a specific time, or to work on a specific short-term project until completion, may be considered temporary employees so long as they are not furnished on an indefinite basis. The hearing officer's affirmation of the DOL cease and desist order was proper because the contractor was operating with some non-temporary employees, but the DOL findings are reversed with regard to specific employees.
[1981] Bates v. Ranger Ins. [6/3/97] 1997 MTWCC 34 Former nurses aide, who is permanently totally disabled, claimed her weekly wages for purposes of determining her PTD rate should include overtime. Under section 39-71-116(20), MCA (1981-1983), wages were defined as "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.
[1985] Williams v. State Fund [2/1/96] 1996 MTWCC 10 For purposes of determining whether an injured worker can receive TTD while also receiving sick leave donated by co-workers, the WCC begins with section 39-71-116(19), MCA (1985). "Wages" encompasses sick leave earned by the injured employee but not sick leave donated by co-workers. Donated sick leave amounts to a gift and does not prevent the employee from simultaneously receiving TTD benefits. Cf. Milender v. John Carpenter, 230 Mont. 1, 748 P.2d 932 (1987) (wages paid by an employer to an injured worker who is not able to work are deemed gratuitous payments and not wages within the WCA.)
[1991] Best v. State Compensation Insurance Fund [8/23/95] 1995 MTWCC 62, aff’d Best v. State Compensation Insurance Fund, 276 Mont. 302, 916 P.1d 108 (1996) Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability within the statute where his permanent total disability predated the 1993 incident and was not caused by that incident.
Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer’s denial of benefits gave claimant no alternative but to use other forms of paid leave. Cf. 44 Op. Att’y Gen. No. 33 (1992), where Attorney General concluded that if annual leave benefits are being paid, there is no total loss of wages to render an employee eligible for workers’ compensation benefits.