39-71-711, MCA

[1999] S.L.H. v. State Fund [12/28/00] 2000 MT 362 Under section 39-71-711 (1), MCA (1991), once a doctor has determined the existence of a mental impairment based on the current edition of the Guides to Evaluation of Permanent Impairment, the workers' compensation judge is empowered to translate the medical testimony into a specific percentage of impairment when the doctor follows the admonishment of the 4th edition of the Guides that physicians should not assign a specific percentage for mental impairments.

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Petitioner’s treating physician found her to be suffering from a “classic asbestos related obstructive defect” and assigned her a 45% impairment rating under the 5th Edition of the AMA Guides.  The Court concluded that under Drake and Hilbert, the “current edition of the Guides” in § 39-71-711(1)(b), MCA, are those in effect on the date claimant reaches MMI, and since under Fellenberg, an asbestosis victim was at MMI on the date of diagnosis, the physician used the correct edition of the guides that were in effect in May 2005, when Petitioner was first diagnosed with ARD.

Monroe v. MACO Workers Comp Trust [03/17/14] 2014 MTWCC 7 In order to be entitled to permanent partial disability benefits, a claimant must have an impairment rating established by an impairment evaluator under § 39-71-711, MCA.  Petitioner’s argument rests entirely upon the premise that at death, an individual is 100% impaired, which fails to satisfy the requirements of the WCA.

Johnson v. Liberty NW Ins. Corp. [08/05/13] 2013 MTWCC 18 Petitioner’s claim falls under the 1999 version of the WCA, where § 39-71-711(1)(b), MCA, mandates that the “current edition” of the Guides be used in calculating an impairment rating.  The “current edition" would be the 5th edition since Petitioner reached MMI on April 16, 2001.

Estate of Hirth v. Montana State Fund [12/27/12] 2012 MTWCC 47 Where two physicians reviewed the injured worker’s medical records and rendered impairment ratings, the situation falls under § 39-71-711, MCA, and not § 39-71-605, MCA, because these physicians did not conduct an IME, but rather rendered opinions based on their record reviews.  The value of their respective expert opinions, which conflict with the opinions of the treating physician, are a matter of weight, not admissibility.

Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 Under § 39-71-711, MCA, an injured worker is evaluated and an impairment rating is calculated after the injured worker reaches MMI.  At that moment, the evaluator uses the “current edition” of the Guides to calculate the impairment rating.  The most reasonable interpretation is that the “current edition” of the Guides are those in effect at the time the worker reaches MMI.

[1999] Thompson v. Liberty NW Ins. Corp. [2/25/04] 2004 MTWCC 16 A claimant does not have a right to an independent medical examination paid for by the insurer. Statutes governing IMEs give the insurer, not the claimant, the right to request such examinations. 39-71-605, MCA (1999). However, a claimant is always free to obtain a second opinion, including a second impairment evaluation, at his or her own expense, 39-71-711(2), MCA (1999).

[2001] Broyles v. Albertson's [10/22/03] 2003 MTWCC 61 Subsection (4) of section 39-71-711, MCA (2001), precludes an insurer or self-insured employer from obtaining either an IME or FCE for the purposes of obtaining an impairment rating. [Note: See Broyles 2004 MTWCC 19 Withdrawing Decsion and Order Quashing IME and FCE.]

[1995] Kapor v. Liberty Mutual [3/14/03] 2003 MTWCC 22 Impairment" is a term of art connected to impairment ratings and the American Medical Association Guides to the Evaluation of Impairment. 39-71-703(1) and -711, MCA (1995). Where a claimant is rated with a zero (0%) impairment, the claimant does not have a "permanent impairment" within the meaning of section 39-71-1011(2), MCA (1995) and is not eligible for rehabilitation benefits.

[1997] Beyl v. Liberty Northwest Ins. Corp. [12/21/00] 2000 MTWCC 75 Section 39-71-711, MCA, defines permanent impairment under the Workers' Compensation Act and must be followed in determining whether a worker is a disabled worker within the meaning of rehabilitation provisions, 39-71-1011 (2), MCA (1997).

[1989] Estate of James Jacques v. Borden, Inc. [3/20/97] 1997 MTWCC 14 The 1989 WCA allows an impairment award based on a psychological condition where the claimant also suffers a concomitant physical restriction.
[1989] Estate of James Jacques v. Borden, Inc. [3/20/97] 1997 MTWCC 14 Section 39-71-711, MCA (1989) limits impairment evaluations to medical doctors and chiropractors, thereby precluding valid impairment ratings by a psychologist.
Harball v. Liberty Mut. Fire Ins. Co. [11/03/95] 1995 MTWCC 90 Under section 39-71-711, MCA (1989), where each party has already obtained an impairment rating, and the parties dispute the appropriate rating, the procedure to be followed is designation of an evaluator by the Department of Labor, as specified in subsection (3) of the statute. Until that procedure is followed, the Workers’ Compensation Court lacks jurisdiction to make further orders on the dispute and will not compel claimant to attend.
[1987] McCracken v. City of Great Falls [12/14/94] 1994 MTWCC 114 A dispute concerning the relatedness of claimant’s cervical condition to his injury is not subject to the procedures of section 39-71-711, MCA (1987), and is subject to statutory mediation requirements. Where mediation has not yet taken place, the Workers’ Compensation Court does not yet have jurisdiction over the cervical dispute.