39-71-610, MCA

Hartford Fire Ins. Co. v. Hostetter [06/25/13] 2013 MTWCC 14 Appeals from Department determinations regarding interim benefits under  § 39-71-610, MCA, are subject to de novo review by this Court.  This Court considers four factors in making a determination: (1) whether liability was accepted; (2) whether benefits were paid, especially for a significant time period; (3) whether the claimant has demonstrated he will suffer significant financial hardship without interim benefits; and (4) whether the claimant has tendered a strong prima facie case for reinstatement of the benefits.  To meet the fourth factor, a claimant need not prove entitlement to TTD benefits, but need only tender substantial evidence which, if believed, would entitle him to the benefits.

Klinkam v. MACo Workers' Compensation Trust [07/10/12] 2012 MTWCC 25 Petitioner sought review of a Department of Labor & Industry (DOLI) ruling denying her additional benefits under § 39-71-610, MCA, which provides that, upon termination of biweekly benefits, the DOLI may order an insurer to pay additional benefits.  However, Petitioner admitted that she was still receiving compensation benefits, only of a different type.  A conversion of benefits from one type to another does not qualify a claimant for “additional biweekly compensation benefits” under the statute.

Klinkam v. MACo Workers' Compensation Trust [07/10/12] 2012 MTWCC 25 A proceeding before this Court pursuant to the terms of § 39-71-610, MCA, is a new proceeding and is not subject to mediation.  It is therefore a proceeding de novo.

[2001] Montana Health Network v. Graham [12/5/02] 2002 MTWCC 61 In an accepted claim case in which the insurer has paid temporary total disability benefits and the claimant is suffering severe financial hardship, the Court will order interim benefits under section 39-71-610, MCA, where claimant tenders her own testimony that she suffered a work-related injury and her treating physician's opinion that her current condition is work related and disabling
[2001] Montana Health Network v. Graham [12/5/02] 2002 MTWCC 61 Unless formal hearing is requested the Workers' Compensation Court will resolve requests for interim benefits under section 39-71-610, MCA, benefits on an expedited, informal basis, typically by telephone conference with counsel
[2001] Montana Health Network v. Graham [12/5/02] 2002 MTWCC 61 Claimant's own expected testimony that she suffered a work-related injury plus the opinion of her physician that her current condition is work related and currently disabling constitutes a strong prima facie case for benefits despite the insurer's proffer of statements from other witnesses indicating she was not injured at work and IME opinions indicating her condition is not work related. The treating physician's opinion is entitled to some deference, especially in a proceeding for interim benefits and conflicts in testimony raise credibility issues which can only be resolved after a full trial on the merits of the claim for benefits.
[2001] Montana Health Network v. Graham [12/5/02] 2002 MTWCC 61 In determining whether interim benefits under section 39-71-610, MCA, are appropriate, the Court will consider four factors. First, was liability for the claim accepted? Second, were benefits paid, especially for a significant time period? Third, has the claimant demonstrated she will suffer significant financial hardship if section 39-71-610, MCA, interim benefits are not ordered? Fourth, has the claimant tendered a strong prima facie case for reinstatement of the benefits she is seeking?

[1999] Thompson v. Liberty Northwest Ins. Corp. [6/12/02] 2002 MTWCC 34 An insurer is not entitled to reimbursement for 49 days of interim benefits paid pursuant to section 39-71-610, MCA, where the claimant proves that he was entitled to the benefits on the merits.

[1999] Schneider v. Liberty Mutual Ins. [4/20/01] 2001 MTWCC 14 Claimant must repay interim temporary total disability benefits awarded under section 39-71-610, MCA (1999), where the Court finds that the insurer properly terminated TTD benefits and that he is not entitled to them.
[1999] Liberty Northwest Ins. v. Thompson [8/31/00] 2000 MTWCC 53In ruling on a request for interim benefits, the Court looks to three factors: (1) whether there is a strong prima facie case on the merits; (2) financial need; and (3) duration of previous benefits. Where there are conflicting medical opinions, one supporting claimant, the first factor is satisfied.
[1999] Schneider v. Liberty Northwest Ins. Corp. [4/4/00] 2000 MTWCC 18 Insurer appealed DOL order for payment of 49-day benefits. After telephonic conference with both counsel, WCC reviewed case on basis of medical records and physician correspondence. In this accepted liability case, the Court examined length of time benefits were paid, existence of financial hardship to claimant, and facts supporting case for reinstating TTD. Seven months of benefits is not insignificant. No information regarding financial hardship was presented. The prima facie case for benefits is the critical factor. Where records show conflicting medical opinion, WCC would more probably than not find "strong prima facie case" for reinstatement of benefits because claimant need not prove in 49-day benefits case that he will prevail, only that there is some evidence in his favor which is substantial and not facilely disregarded. 49-day benefits not ordered, however, where medical opinion favorable to claimant indicates he is not at MMI because he needs PT and work hardening, which he was offered but dropped. Having provided no justification for failing to treat, claimant has not presented a sufficient.
[1999] Smith v. State Fund [2/17/00] 2000 MTWCC 9 1999 revisions to section 39-71-610, MCA, contemplate de novo hearing at WCC. Given emergency nature of 49-day benefits issues, speedy resolution is necessary, usually accomplished through presentation of information to the court through documents and telephone conference with counsel, the procedure followed in this case. Resolution of 49-day benefits cases will be guided by facts and circumstances of each case. In an accepted liability case where benefits have been paid for a lengthy period of time, where the claimant will suffer severe financial hardship from any interruption of benefits, and where the claimant has, at least at first glance, a strong prima facie case for reinstatement of benefits, an order for 49-day benefits will likely issue. On the other hand, in a case of contested liability where there is an absolute defense of likely merit, where the case for reinstatement of benefits is facially weak, or where little financial hardship will result, the facts may go against claimant. Here, request for 49-day benefits denied where the insurer never accepted liability and the insurer has what appears to be a good argument the claim is time-barred.

[1997, 1999] Ballard v. Stillwater Mining Co. [12/23/99] 1999 MTWCC 84, 84A Claimant involved in dispute with Montana and Alaska insurers over which, if either, is liable for his present ankle condition requested interim benefits during pendency of proceeding. Under ARM 24.5.308, the WCC had previously ordered six weeks of interim benefits following delay in proceeding caused by insurer's filing of motion to join third party without properly serving third party. WCC held that ARM 24.5.308 did not apply at present, meaning the only source of additional authority to order interim benefits is section 39-71-610, MCA, which allows no more than 49 days of interim benefits pending resolution of a workers' compensation dispute. Where claimant has already received 42 days of interim benefits under the prior order, the Court declines to order additional benefits, particularly where the issues suggest it is possible neither insurer could be liable to claimant, making any repayment possibility questionable.

[1997, 1999] Liberty Northwest Ins. v. Loren Hams [10/5/99] 1999 MTWCC 61 After DOL awarded claimant 49-day benefits, insurer appealed, arguing that 1997 Act applied to claimant's substantive right to benefits and did not allow benefits prior to the filing of a petition in the WCC. Insurer relied on 1999 revisions to section 39-71-610, MCA, which expressly state that 49-day benefits are available prior to petition. WCC held that 1997 statute allowed 49-day benefits where an insurer terminates biweekly compensation benefits and the termination is disputed by claimant. Whether or not the 1999 legislature believed it was expending eligibility for 49-day benefits, such benefits are available under the 1997 Act pre-petition. Benefits ordered where medical reports show genuine dispute and other evidence showed pressing financial obligations which claimant could not meet without benefits.
[1997, 1999] State Fund v. Nancy (Anderson) Blatnik [4/21/99] 1999 MTWCC 29 Overruling Liberty Mutual Fire Ins. Co. v. Blancher [2/9/96]1996 MTWCC15, the WCC finds it does have jurisdiction to consider State Fund's emergency petition challenging an order of the DOL awarding claimant 49-day benefits under section 39-71-610, MCA (1997). The State Fund's is legitimately concerned that it could be left without remedy if section 39-71-610, MCA (1997) is interpreted to require repayment by claimant of 49 day benefits only if claimant files a petition in the WCC seeking benefits and claimant fails to pursue her claim in the WCC. Thus, the WCC affirms the DOL order of 49-day benefits with the proviso that should the parties not resolve their dispute at mediation, the claimant shall diligently prosecute a petition with the WCC until settlement or judgment or shall repay the 49-day benefits. (See 1999 revisions to section 39-71-610, MCA and subsequent WCC decisions.)