PPD Benefits

Benefits: Permanent Partial Benefits: Generally

MONTANA SUPREME COURT DECISIONS

Reesor v. Montana State Fund, 2004 MT 370 (No. 03-639) Section 39-71-710, MCA (1999), violates equal protection guarantees in that it treats partially disabled claimants disparately because of their age. There is no rational basis for the legislature to provide that a 65 year old worker with an identical injury to a 40 year old worker should receive only an impairment award solely because he has reached retirement age.

Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996) Supreme Court affirmed WCC conclusion claimant was not entitled to lost earning capacity benefits under section 39-71-703, MCA (1983), but was entitled to indemnity benefits under sections 39-71-705 through -708, MCA (1983), where the WCC did not credit claimant's testimony about current physical restriction, but there was evidence of an impairment award and some possibility of future lost earning capacity.

Wilson v. Liberty Mut. Fire Ins., 273 Mont. 313, 903 P.2d 785 (1995) Substantial evidence supported the conclusion of the Workers’ Compensation Court that claimant did not prove connection between his 1988 and 1986 back injuries and back problems commencing in 1993. The initial injuries were relatively minor, medical treatment was sporadic, the Court credited medical testimony that the 1988 and 1986 injuries were likely strains that resolved within a few weeks, and claimant’s own testimony was not credible. Affirming Wilson v. Liberty Mutual Fire Ins. Co., 1995 MTWCC 9.

WORKERS' COMPENSATION COURT DECISIONS

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.

Woodards v. MIGA [12/18/07] 2007 MTWCC 55 Under the definition of PPD found at § 39-71-116(23), MCA (2001), a claimant who the parties agree from the date of her injury forward has always been totally disabled and has never been able to return to work in any capacity has never been PPD as defined by the statute.

Kobe v. Montana State Fund [07/08/05] 2005 MTWCC 38 Where a claim for permanent partial disability benefits is based on an alleged inability to work full time rather than a reduction in an hourly wage, the claimant must persuade the Court that in fact she is unable to work full time.

Kobe v. Montana State Fund [07/08/05] 2005 MTWCC 38 Under 2001 laws, a claimant is not entitled to permanent partial disability benefits, other than an impairment award based on an impairment rating, unless he or she has a wage loss.

Blaylock v. Montana State Fund [6/30/04] 2004 MTWCC 54 Under the 2003 law, a claimant is not entitled to permanent partial disability benefits where he or she suffers no wage loss, however, the claimant may be entitled to an impairment award based on the percentage of impairment assessed.

Campbell v. MCCF [8/20/03] 2003 MTWCC 58 Under the 1999 Workers' Compensation Act, a claimant is entitled to PPD benefits in addition to an impairment award only if he or she suffers an actual wage loss. Wage loss is computed by subtracting the greater of what the claimant in fact earns or what he is capable of earning post-injury from his or her time-of-injury wage.

Maier v. Home Ins. Co. [8/8/03] 2003 MTWCC 56 Claimant is not entitled to permanent partial disability benefits where medical evidence relating her disabling arm condition to her industrial injury was predicated entirely on claimant's unsubstantiated report that her condition had never cleared up and she had self-treated for many years. The Court found that report incredible and untrue. The persuasive medical evidence shows that her disabling arm condition is unrelated to her industrial accident and is the product of repetitive motion over many years, thus constituting an occupational disease.

Reesor v. Montana State Fund [7/22/03] 2003 MTWCC 51 Section 39-71-710, MCA (1999), which denies permanent partial disability benefits other than impairment awards to workers receiving social security retirement benefits or who are eligible for full social security benefits does not violate the Equal Protection Clause. Workers' compensation benefits are a partial replacement for lost wages. Age and retirement are rough measures of the time workers stop working and stop suffering wage loss. Reversed in Reesor v. Montana State Fund, 2004 T 370 (No. 03-639).

Olenick v. EBI [3/10/03] 2003 MTWCC 18 Claimant, who suffered burns to his hands in a 1990 electrical explosion, is not entitled to wage supplement benefits under section 39-71-703, MCA (1989), where he failed to persuade the Court that his hand problems which he claims motivated him to retire were in fact caused by his 1990 accident and where more credible medical evidence shows that they are due to aging and repetitive use of his hands over the years, thus constituting an occupational disease.

Burnside Lund v. St. Paul's [1/14/03] 2003 MTWCC 2 A request for permanent partial disability benefits, including an impairment award, is premature where the claimant has not reached maximum medical improvement and further testing and treatment, including possible surgery, is prescribed.

Hansen v. Valor Ins. [1/08/03] 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).

Beyl v. Liberty Northwest Ins. Corp.[12/21/00] 2000 MTWCC 75 Under 1997 law, a claimant who does not suffer a rateable impairment is not entitled to permanent partial disability benefits.

Nielson v. State Fund [9/20/00] 2000 MTWCC 64 Where claimant sought PPD benefits on the basis of disability in both arms, but only the right arm condition was accepted as an injury by the insurer, the relevant inquiry was whether claimant was permanently partially disabled due to his right arm condition. Because PPD benefits are not available under the Occupational Disease Act (§39-72-703, MCA), claimant's left arm condition, accepted by the insurer as an occupational disease, could not give rise to a claim for PPD benefits on the record presented. Note: In Nielson v. State Compensation Ins. Fund, 2003 MT 95, the Supreme Court reversed and remanded, holding substantial evidence did not support the WCC's conclusion that claimant was not permanently, partially disabled.

Nielson v. State Fund [9/20/00] 2000 MTWCC 64 Under the 1993 version of the WCA, PPD claimant failed to prove that, after MMI, he had a medically determined physical restriction as the result of an injury which impaired his ability to work (§39-71-116(19), MCA). Having found claimant's subjective reports of pain not credible, the Court was not persuaded by expert opinions relying on those subjective reports, but credited other experts finding claimant's reports of disability without objective basis and refusing to place physical restrictions on claimant. Note: In Nielson v. State Compensation Ins. Fund, 2003 MT 95, the Supreme Court reversed and remanded, holding substantial evidence did not support the WCC's conclusion that claimant was not permanently, partially disabled.

Jenkins v. State Fund [7/30/99] 1999 MTWCC 47Nurses’s aide with 1996 injury of left shoulder went back to work in modified job before reaching MMI. In 1997, she injured her right shoulder. Undisputed evidence indicated she was released to light duty following the first injury and remained at light duty following the second. When she sought PPD benefits (including percentages for wage loss, loss of labor capacity, and age) relating to each injury, the WCC held she was entitled only to such benefits for the first injury because that injury caused her wage loss. Where the 1997 injury caused no wage loss, and caused wage loss is a prerequisite for recovering PPD benefits other than an impairment award, her request for PPD percentages for wage loss, lost labor capacity, and age relating to the second injury was denied.

McAdam v. National Union Fire Ins. Co. of Pittsburgh [3/23/98] 1998 MTWCC 28 Under section 39-71-703, MCA (1995), claimant was not entitled to PPD benefits where he did not prove an impairment rating "more than zero." Although claimant had a 5% impairment from a chronic low back condition, that condition pre-existed the injury.

Ward v. Plum Creek Manufacturing [8/13/97] 1997 MTWCC 46 Contrary to the insurer's argument, there is no requirement in section 39-71-741(2), MCA (1993) that claimant provide justification to the insurer for a lump sum request for permanent partial disability benefits. The only criteria mentioned is whether a settlement amount is inadequate.

Carlson-Owens v. Liberty NW [4/28/97] 1997 MTWCC 27 Under section 39-71-116 and -703, MCA (1995), claimant without impairment established by objective medical evidence is not entitled to PPD benefits.

Carlson-Owens v. Liberty NW [4/28/97] 1997 MTWCC 27 Under section 39-71-703, MCA (1995), claimant without wage loss is not entitled to PPD benefits beyond impairment award.

Major v. State Fund [11/15/96] 1996 MTWCC 70 Where sole proprietor who elected coverage declared monthly earnings at $900 for policy purposes, insurer properly refused to base wage supplement benefits on loss of post-injury earnings rather than declared wages. Section 39-71-118(2)), MCA (1989), provides that "all weekly compensation benefits must be based on elected wages...." Section 39-71-703(1)(b)(i), MCA (1989), which governs wage supplement benefits, states that a worker must be "compensated in weekly benefits." Under the plain language of the statutes, all weekly benefits, including wage supplement benefits, must be based on the amount elected.

Cattaneo v. Liberty Mutual Fire Ins. Co. [11/4/96] 1996 MTWCC 69 Although claimant testified his jaw hurt in cold weather, there was no evidence of an impairment rating or that mended broken jaw interfered with claimant's ability to work. Thus, permanent partial disability benefits were denied.

Ranes v. Lumbermens Mutual Casualty Co. [8/26/96] 1996 MTWCC 49A Court granted motion to amend its prior decision to delete order permitting insurer to credit previously paid permanent partial disability benefits against liability for temporary total disability benefits relating to a separate condition.

Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114 If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.

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.

Burglund v. Liberty Mutual Northwest Ins. Co. [4/10/95] 1995 MTWCC 25 UPS driver is not entitled to benefits under section 39-71-703, MCA (1983) for loss of earning capacity where the performance of his present job is unaffected by his injury and the Court is persuaded he will be able to continue to perform his job duties at a satisfactory level. (Note: the WCC was affirmed by the Supreme Court in Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996).)

Wilson v. Liberty Mututal Fire Ins. [02/03/95] 1995 MTWCC 9 Where claimant is required under both the 1985 and 1987 Workers’ Compensation Acts to show that his disabling condition results from his industrial accident, and the credible evidence convinced the Court that claimants 1988 and 1986 back injuries were temporary strains, he is not entitled to further permanent partial disability benefits for a back condition commencing in 1993.

Gjerde v. Employers Ins. of Wausau [12/09/94] 1994 MTWCC 111 Where the insurer has agreed to a lump-sum advance of permanent partial disability benefits under 39-71-703, MCA (1991), it is not entitled to discount that advance to present value where no statutory provision authorizes such discount.