Benefits: Impairment Awards

MONTANA SUPREME COURT DECISIONS
S.L.H. v. State Compensation Mutual Insurance 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.
WORKERS' COMPENSATION COURT DECISIONS
Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 The impairment rating is not itself a benefit.  Rather, as defined by the Legislature, it is a purely medical determination which occurs after an injured worker reaches MMI.
Mack v. Transportation Ins. Co. [05/22/07] 2007 MTWCC 16 Where Petitioner was first retired and then declared to be permanently totally disabled, the Court determined the 1987 and 1989 versions of § 39-71-703, MCA, did not render Petitioner ineligible to receive an impairment award. Since Petitioner was not eligible to receive PTD benefits due to his retirement, the prohibition set forth in Rausch does not apply.
Paul v. Transportation Ins. Co. [10/07/04] 2004 MTWCC 69 In an asbestosis case where the impairment rating is based on the claimant's total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.
Swan v. Pacific Employers Ins. Co. [9/28/04] 2004 MTWCC 68 The rule that an employer "takes his employee subject to the employee's physical condition at the time of the employment" applies to impairment awards. Larson v. Cigna Ins. Co., 271 Mont. 98, 103, 894 P.2d 327, 300 (1995). Thus, where an industrial injury aggravates a preexisting condition of the same body part, the insurer is liable for the full impairment rating without deduction for any impairment it alleges preexisted the industrial accident unless the claimant has previously received an impairment award for an industrial accident to the same part of the body, which award must be deducted. 39-71-703, MCA (1997-2001).
Blaylock v. Montana State Fund [6/30/04] 2004 MTWCC 54 Where the claimant's treating physician renders a zero percent (0%) impairment rating, the claimant is entitled to obtain an independent impairment rating at his or her own cost. Where that opportunity has been denied or the claimant has been misled as to the right to receive a second opinion, the Court will defer decision on an impairment dispute to allow the claimant to obtain an independent rating.
Fellenberg v Transportation Ins. Co. [3/19/04] 2004 MTWCC 29 Impairment awards are payable to permanently totally disabled claimants under the 1983 Workers' Compensation Act. Hunter v. Gibson Products of Billings Heights, Inc., 224 Mont. 481, 730 P.2d 1139 (1986). Since the Occupational Disease Act (ODA) provides for payment of permanent total disability benefits, impairment awards may be available under 1983 law to claimants who suffer from occupational diseases which are permanently totally disabling. Affirmed in Fellenberg v. Transportation Ins. Co., 2005 MT 90
Fellenberg v Transportation Ins. Co. [3/19/04] 2004 MTWCC 29 Under the 1983 law, impairment awards are permanent partial disability benefits. Grimshaw v. L. Peter Larson Co., 213 Mont. 291, 691 P.2d 805 (1984). Affirmed in Fellenberg v. Transportation Ins. Co., 2005 MT 90
Liberty Mutual Fire Ins. v. Warner [3/9/04] 2004 MTWCC 24 Impairment awards payable to permanently totally disabled claimants are not subject to cost-of-living adjustments. 39-71-702(5), MCA (1995-2001).
Liberty Mutual Fire Ins. v. Warner [3/9/04] 2004 MTWCC 24 Requests to lump-sum impairment awards are subject to section 39-71-741, MCA (1997-2003), but fall under permanent partial disability provisions for purposes of that statute whether or not payable to a permanently partially disabled or permanently totally disabled claimant.
Liberty Mutual Fire Ins. v. Warner [3/9/04] 2004 MTWCC 24 Impairment awards are subject to the same biweekly payment provision as other benefits. 39-71-740, MCA (1961-2003).
Broyles v. Albertson's [10/22/03] 2003 MTWCC 61 Insurer or self-insured employer is not entitled to an IME or FCE for purposes of an impairment rating. 39-71-605(5) and -711(4), MCA (2001). Note: See Broyles 2004 MTWCC 19 Withdrawing Decsion and Order Quashing IME and FCE.
Rausch, Fisch, Frost v. Montana State Fund [7/11/03] 2003 MTWCC 48 Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. 39-71-703(1)(a)(iv), MCA (1987-89).
Hansen v. Valor Ins. [1/038/03] 2003 MTWCC 1 For a credit under section 39-71-703(7), MCA, the insurer must show (1) that amounts previously paid as permanent partial disability benefits were for injury "to the same part of the body" and (2) that those amounts would be duplicated by the claimed present award. Where claimant received two prior disputed liability settlements based on causation disputes between the parties, the total of the prior settlements approximated the costs of back surgery, no impairment ratings were rendered for injuries associated with prior settlements, and claimant's present impairment rating and disability is attributed to his most recent injury, an award of permanent partial disability benefits with respect to the recent injury will not duplicate amounts received by claimant in the prior settlements. Thus, insurer is not entitled to credit under subsection (7).
Siaperas v. Montana State Fund [8/20/02] 2002 MTWCC 40 An insurer is not precluded from paying an impairment award concurrently with other classes of benefits. Therefore, it is not precluded from paying an award while claimant is receiving temporary total disability benefits. Claimant, however, must still be entitled to the award in order for it to be paid.
Bergman v. Valor [6/03/02] 2002 MTWCC 30 Where a subsequent injury does not increase the claimant's preexisting impairment or his disability, he is not entitled to an impairment award.
Schmill v. Liberty NW Ins. [6/22/01] 2001 MTWCC 36 Occupational Disease Act provision which requires reduction of benefits based upon non-occupational factors ( 39-72-706, MCA (1989-1999)) violates the Equal Protection clauses of the United States and Montana Constitutions since there is no equivalent provision in the Workers' Compensation Act. Therefore, workers with occupational disease are entitled to the full impairment award without reduction for non-occupational factors.
Fisch, Frost, and Rausch v. State Fund [4/20/01] 2001 MTWCC 15 While some permanently totally disabled workers have been or may become entitled to an impairment award, that entitlement is the result of their being permanently partially disabled at the time, thus, there is no discrimination among permanently totally disabled workers with respect to impairment awards. Note: The WCC decision was reversed and remanded in Rausch et al. v. State Compensation Insurance Fund [9/5/02] 2002 MT 203.
Lalum v. Safeco Ins. [3/19/01] 2001 MTWCC 11 Insurer is liable for full impairment percentage where impairment rating is for a single, indivisible condition even though non-occupational factors may have contributed to the condition. There is no apportionment.
Sharp v. Montana Municipal Ins. Authority [3/17/00] 2000 MTWCC 13 In the 1995 WCA, section 39-71-741, MCA, provides the only statutory authority for lump summing a settlement. The section does not grant the WCC authority to order a lump-sum payment of an impairment award, discounted or undiscounted, to a permanently totally disabled claimant.
McGillis v. State Fund [11/2/98] 1998 MTWCC 79 The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.
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.