39-71-702, MCA

MONTANA SUPREME COURT DECISIONS

[1995] Siaperas v. State Fund [01/15/04] 2004 MT 264N An insurer is not required to reduce the social security offset because physical conditions unrelated to an industrial injury prevent claimant from performing some jobs. As held in Watson v. Seekins (1988), 234 Mont. 309, 763 P.2d 328, the offset statute does not allow for reductions or modifications to the proportion of the social security offset; the legislature fixed the setoff amount at 50 percent of Social Security Disability benefits. (Note: Siaperas is a non-citeable opinion.)

[1995] Siaperas v. State Fund [01/15/04] 2004 MT 264N Statute allowing a workers' compensation insurer to decrease permanent total disability benefit payments by 50 percent of the Social Security Disability benefits a claimant is receiving does not violate constitutional equal protection provisions, as already decided in McClanathan v. Smith (1980), 186 Mont. 56, 606 P.2d 507, where the Court held that "the avoidance of duplication or overlapping of benefits is indeed a reasonable and permissible legislative objective." Note: Siaperas is a non-citeable opinion. § 39-71-702(4), MCA (1995)
[1987-1989] Murer v. State Compensation Ins. Fund, 283 Mont. 210, 942 P.2d 69 (1997)
(No. 95-542) 39-71-702(6), MCA. (1) The 1987 statutory cap on benefits applies to injuries which occurred between July 1, 1987, and June 30, 1989; (2) the 1987 temporary cap expired June 30, 1989; (3) the 1989 temporary cap applies to injuries which occurred between July 17, 1989, and June 30, 1991; (4) the 1989 temporary cap expired June 30, 1991; and (5) the 1989 temporary cap cannot be applied retroactively to injuries which occurred prior to July 17, 1989, the date on which it became effective.
Broeker v. State Compensation Ins. Fund, 275 Mont. 502 (1996) (No. 95-221) Where a claimant is receiving both total disability benefits and social security disability benefits, the amount by which the claimant’s workers compensation benefits should be offset under sections 39-71-701(2) and -702(2), MCA (1979) is based on the social security disability benefit as indexed to the date on which claimant became eligible to receive those benefits, not the date of his injury. Affirming decision of Workers’ Compensation Court, Broeker v. State Compensation Insurance Fund, 1995 MTWCC 17 (1995).
Broeker v. State Compensation Ins. Fund, 275 Mont. 502 (1996) (No. 95-221) All social security disability cost-of-living increases, whether included in the initial rate or awarded later, should be excluded when the offset against workers’ compensation disability benefits is calculated pursuant to sections 39-71-701(2) and -702(2), MCA (1979). Affirming decision of Workers’ Compensation Court, Broeker v. State Compensation Insurance Fund, 1995 MTWCC 17 (1995).
WORKERS' COMPENSATION COURT DECISIONS

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 The Court rejected Petitioner’s treating physician’s opinion that Petitioner is not competitively employable where the treating physician based that opinion in part on the incredible reporting of his patient and in part on an FCE report which the Court found entitled to little weight.

O'Mahoney v. Liberty Insurance Corp. [03/08/13] 2013 MTWCC 6 At the time of trial, Petitioner was still undergoing evaluation and treatment at a pain clinic where she was referred by her treating physician and for which the Respondent accepted liability.  Despite the treating physician’s determination of MMI, he found her pain complaints credible enough for the pain clinic referral, and while Petitioner undergoes evaluation and treatment for her pain, she is not at MMI.  Therefore, her claim for permanent total disability benefits pursuant to § 39-71-702, MCA, is premature.

Wilson v. Uninsured Employers' Fund [12/09/10] 2010 MTWCC 33 Petitioner’s treating physician testified that he observed objective medical findings including tenderness over the SI joint, abnormal posture, and limited range of motion, and further testified that Petitioner’s abnormal posture and limited range of motion has been consistent throughout his years of treatment. The Court concluded that these observations were objective medical findings within the meaning of § 39-71-702, MCA, and supported Petitioner’s entitlement to PTD benefits.
[1995] Crawford v. Liberty NW [4/3004] 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 claimant's injuries are at maximum medical improvement and are in themselves permanently totally disabling.

[1995] Siaperas v. State Fund [1/15/04] 2004 MTWCC 4 The social security offset provisions require that the claimant's total disability benefits be reduced by one-half of the social security benefits received by a claimant. § 39-71-702(4), MCA (1995).
[1995] Cheetham v. Liberty NW Ins. Corp. [6/17/03] 2003 MTWCC 44 The cost-of-living adjustment provided in section 39-71-702(5), MCA (1995), must be based on the benefits rate provided in section 39-71-702(3), MCA (1995), before any social security offset provided in section 39-71-702(4), MCA.
[1995] Crowell v. State Fund [4/14/99] 1999 MTWCC 27 Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.
[1995] Sharp v. Montana Municipal Ins. Authority [5/5/99] 1999 MTWCC 32 In a bench ruling finding claimant permanently totally disabled, Court notes that permanent total disability cases must be judged individually on their "gestalt," but notes the following factors indicating PTD status in this case: (1) claimant had steady employment throughout his life; (2) claimant worked despite having pain over the years; (3) the Court was convinced claimant had serious pain despite taking heavy-duty pain medication; (4) Court was convinced claimant followed medical advice and tried to alleviate his pain; (5) chances were not good that an employer would hire claimant, even if he could work, given his limitations due to pain. Penalty and attorneys fees were not awarded where the case also contained facts pointing away from finding permanent total disability status making the insurer's position reasonable.