39-71-609, MCA


[1981] Wallace v. State Fund [12/8/00] 2000 MT 310 Insurer did not violate 14-day notice provision of section 39-71-609, MCA (1981) when terminating TTD benefits of injured worker who, following training in real estate sales, began work as a real estate salesman, received his first commission, and went on to average thirty hours a week in real estate sales while also performing spot jobs for the USDA. The statutory exception to the notice requirement applies to claimant's return to work, regardless of claimant's argument that he was not "employed" or earning "wages" as defined in the WCA.


Kellegher v. MACO Workers' Compensation Trust [08/12/15] 2015 MTWCC 16 The insurer bears the initial burden to produce evidence showing that the claimant is not permanently totally disabled by submitting sufficient evidence that approved jobs exist since § 39-71-609(2), MCA, requires the insurer to obtain a physician’s approval of one or more jobs suitable for the claimant.

Drivdahl v. Zurich Am. Ins. Co. [11/16/12] 2012 MTWCC 43 Although an injured worker ordinarily bears the burden of proving that he is entitled to the benefits he seeks, under § 39-71-609(2), MCA, the insurer bears the initial burden to produce evidence that the injured worker is not permanently totally disabled.  Where Respondent met its initial burden of proof by introducing approved job analyses into evidence, the burden then shifts back to Petitioner to prove that, notwithstanding the approved job analyses, he is entitled to PTD benefits.

Carey v. American Home Assurance Co. [02/01/10] 2010 MTWCC 3 Where the claimant never qualified for TTD benefits, no conversion of TTD to PPD benefits occurred and therefore the insurer had no obligation to complete the pre-conversion steps found in § 39-71-609(2), MCA.
Carey v. American Home Assurance Co. [02/01/10] 2010 MTWCC 3 Where the claimant never qualified for TTD benefits, there were no benefits for the insurer to terminate, and therefore the notice requirements of § 39-71-609(1), MCA, are not applicable.
Short v. J.H. Kelly Holdings, [09/24/09] 2009 MTWCC 33 The Court must employ a fact-driven analysis in determining a petitioner’s appropriate labor market for purposes of developing alternative job analyses pursuant to § 39-71-609, MCA. In this case the Court considered a number of factors to conclude that Shoreline, Washington, is the appropriate labor market including: (1) the petitioner permanently resided in Shoreline, Washington, from 1998 through the time of his injury in 2005; (2) the petitioner accepted millwright jobs throughout the Pacific Northwest, but returned to Shoreline as his residential base between 2003 and the time of his injury; (3) the petitioner worked in Montana only on a temporary basis, returned to Shoreline after his injury and testified that he would have stayed there for his recovery had he been able to locate a treating physician in the area; and (3) the petitioner moved from Shoreline to Clark Fork, Idaho, because he knew other millwrights living there and envisioned working as a millwright again after recovering from his injury.

Short v. J.H. Kelly Holdings, [09/24/09] 2009 MTWCC 33 Although the term “appropriate labor market” is not specifically found in the criteria set forth in Coles v. Seven Eleven Stores, later codified in § 39-71-609, MCA, the Montana Supreme Court recognized when it affirmed this Court’s decision in Coles that “[d]isability has non-medical as well as medical components.”

Schoeneman v. Liberty, 2007 MTWCC 28 The public policy of the WCA is to provide benefits to injured workers at a reasonable cost to employers, and wage-loss benefits should bear a reasonable relationship to actual wages lost as a result of a work-related injury. § 39-71-105(1), MCA. Section 39-71-608, MCA, is designed to be advantageous to both injured workers and insurers, as it allows insurers to pay benefits under a reservation of rights, giving insurers ample time to investigate the merits of a claim without unduly delaying an injured worker's receipt of benefits. Sections 39-71-608, -609, and -701, MCA, contemplate a claimant who is employable in the sense that a job exists which the claimant is physically and vocationally qualified to perform.
Benhart v. Liberty Northwest [01/05/07] 2007 MTWCC 3 Respondent has not met its burden of proof that Petitioner is not entitled to PTD benefits where Respondent did not prove, as required by § 39-71-609(2)(c), MCA, that a physician had approved one or more jobs suitable for Petitioner. A general description of the type of job which, if it exists, would accommodate Petitioner’s physical limitations, will not suffice.
[2003] Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 Even if an insurer fails to comply with the requirements of section 39-71-609, MCA (2003), when terminating temporary total disability benefits, its liability for such benefits ends upon a claimant's actual return to work since section 39-71-701(7), MCA (2003), expressly prohibits a claimant from receiving both wages and temporary total disability benefits unless the insurer expressly agrees.
[2003] Purkey v. AIG and Liberty Mut. Fire Ins. Co. [01/13/05] 2005 MTWCC 2 To terminate temporary total disability benefits and convert them to permanent partial disability benefits, an insurer must comply with section 39-71-609, MCA (2003), which requires a physician's determination that the claimant has reached maximum medical improvement, specification of his or her physical restrictions, and approval of his or her return to work based on a job analysis prepared by a vocational consultant, and further requires the insurer to furnish the claimant with a copy of the physician's determination. The job analysis requirement is satisfied where the evidence shows that even though the physician did not approve a time-of-injury job analysis in writing, both the physician and the claimant understood that the physician was approving a return to work in the time-of-injury job and the physician had previously reviewed the job analysis and was aware of the job requirements.
[1997, 1999] Daulton v. MHA Workers' Comp. Trust [7/09/01] 2001 MTWCC 37 Under 1997 and 1999 law, 39-71-701 and -609, MCA, once claimant has been found to be at MMI the insurer may terminate claimant's temporary total disability benefits upon 14 days notice. If the claimant has also been released to return to any sort of employment, the insurer may immediately terminate temporary total disability benefits.
[1981] Wallace v. State Fund [12/7/99] 1999 MTWCC 78, aff'd 2000 MT 310. Under 39-71-609, MCA (1981), and Larsen v. CIGNA Ins. Co., 276 Mont. 283, 915 P.2d 863 (1996), the insurer was not required to give 14-days notice or meet other requirements attributed to Coles because claimant had returned to work as a real estate salesman, had received his first commission, and was no longer experiencing a total loss of wages. WCC rejected claimant's distinction between wages for hours worked or salary and commissions, noting that for purposes of return to work in these circumstances "wages" simply means gross earnings, or anything of value received as consideration for work constituting economic gain to the worker.
[1995] Sears v. Travelers Ins. [2/24/98] 1998 MTWCC 12 Where claimant does not contend he was in fact still TTD, the Court refuses, on motion for reconsideration, to extend TTD benefits based on alleged non-compliance with one of the criteria of Coles. Claimant had repeated his argument that TTD benefits should have been continued because the insurer failed to provide the physician evaluating his ability to return to work a "technically accurate" job description. WCC adheres to original ruling that technical failure to comply with Coles does not warrant extending TTD benefits where statutory criteria for terminating benefits are met. The statutes governing temporary total disability benefits expressly provide that a claimant is entitled to TTD benefits only until such time as the claimant reaches maximum medical healing. Under section 39-71-609(2), MCA (1995), TTD "benefits may be terminated on the date that the worker has been released to return to work in some capacity." While insurers are well advised to continue following the practices identified in Coles, including providing technically accurate job descriptions to physicians evaluating return to work, extending TTD benefits for non-compliance with Coles criteria irrespective of whether statutory criteria for terminating benefits are met would in effect impose a penalty of sorts on the insurer, without statutory justification.
[1995] Sears v. Travelers Ins. [4/8/97] 1997 MTWCC 18 Section 39-71-609, MCA (1995), allows termination of TTD benefits on the date the worker has been released to work in some capacity, without 14-days notice to any party. While claimant argues the 1993 statute applies because that statute was in effect on his date of injury, Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986), that rule applies only to substantive provisions, not to provisions governing procedure.