Benefits: Permanent Total Benefits: Generally

MONTANA SUPREME COURT DECISIONS
Satterlee v. Lumberman's Mut. Cas. Co. [11/03/09] 2009 MT 368 It is rational for the workers’ compensation system to terminate PTD benefits at a time when, statistically, most people’s work-lives have ended.  While this may not always seem fair, it is not unconstitutional.
Satterlee v. Lumberman's Mut. Cas. Co. [11/03/09] 2009 MT 368 PTD benefits are meant to assist the worker over the course of his work life.  When an individual is considered retired, he has, by definition, ended his work life.  In order to achieve the stated purpose of PTD benefits - that wage loss benefits bear a reasonable relationship to actual wages lost -- it is sufficiently rational that such benefits would terminate upon retirement, when actual wages would normally terminate.
Ruhd v. Liberty Northwest [8/7/02] 2002 MT 290N In an unpublished decision, Supreme Court applies Rausch v. State Fund, 2002 MT 203, to hold permanently totally disabled claimant entitled to an impairment award under the 1999 Workers' Compensation Act. Remand to Workers' Compensation Court for determination of proper method of payment and regarding whether this claimant's counsel, or counsel handling the Rausch matter, are entitled to common fund attorneys fees relating to claimants allegedly situated similarly to this claimant.
Best v. State Compensation Insurance Fund, 276 Mont. 302, 916 P.1d 108 (1996) Generally. Supreme Court affirmed determination of Workers’ Compensation Court that claimant’s permanent total disability predates his 1993 work-related injury.

Larson v. Cigna Ins. Co., 276 Mont. 283, 915 P.2d 108 (1996) (Larson II) Where 58-year old former laborer faced significant barriers to employment given his light duty restrictions, did not have experience in some identified jobs, and did not receive rehabilitative services, and where insurer’s vocational expert failed to identify specific jobs available to claimant, claimant was permanently totally disabled (Workers’ Compensation Court reversed).

Larson v. Cigna Ins. Co., 276 Mont. 283, 915 P.2d 108 (1996) (Larson II) A claimant’s ability to perform a few odd jobs for a short period of time does not preclude a finding of permanent total disability.
 
WORKERS' COMPENSATION COURT DECISIONS

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 The Court concluded that Petitioner did not meet his burden of proving that he was permanently totally disabled.  Although an FCE evaluator and Petitioner’s treating physician both opined that Petitioner was not employable, the Court found Petitioner incredible and found that the opinions of the FCE evaluator and treating physician inextricably relied on their finding Petitioner credible.

Thompson v. Montana State Fund [08/30/13] 2013 MTWCC 25 Physician-approved job analyses were incongruous with Petitioner’s physical limitations and her sedentary-only release assigned by her treating orthopedist in light of Petitioner’s two neck fusions, her carpal tunnel syndrome, and her right-side vocal cord paralysis that left her voice barely audible at best and completely inaudible when fatigued.  In consideration of the totality of Petitioner’s limitations, the Court concluded Petitioner did not have a reasonable prospect of physically performing regular employment once she reached MMI for both her orthopedic condition and her vocal cord injury and was, therefore, permanently totally disabled within the meaning of § 39-71-116(25), MCA (2007), and entitled to PTD benefits retroactive to when her TTD benefits were discontinued.

Wilson v. Uninsured Employers' Fund [12/09/10] 2010 MTWCC 33 Where evidence presented indicated that Petitioner suffered from “near-constant and high levels of pain” along with dysthymic disorder, a vocational rehabilitation counselor testified that Petitioner was not hirable, and doctors opined that Petitioner was, at best, highly unlikely to obtain competitive employment, the Court concluded that Petitioner did not have a reasonable prospect of physically performing regular employment and therefore is permanently totally disabled.
Rau v. Montana State Fund [06/04/08] 2008 MTWCC 26 To be eligible for PTD benefits, a claimant must reach MMI and have no reasonable prospect of physically performing regular employment. Where Petitioner has presented no evidence that she is at MMI, she is not eligible for PTD benefits until such healing has been reached and if, at that time, she also has no reasonable prospect of physically performing regular employment.
Lanes v. Montana State Fund [09/10/07] 2007 MTWCC 39 While Petitioner asked the Court to determine whether he is entitled to PTD benefits, he has presented no evidence that he is at maximum medical healing, or MMI, regarding his right knee condition. He is therefore not eligible for PTD benefits until MMI has been reached and if, at that time, he also has no reasonable prospect of physically performing regular employment. His request is therefore denied.
Satterlee v. Lumberman's Mutual Casualty Company [12/12/05] 2005 MTWCC 55 Section 39-71-710, MCA, which terminates PTD benefits to workers receiving social security retirement benefits or who are eligible for social security benefits does not violate the equal protection clause of the Montana Constitution. Unlike PPD benefits, which are designed to compensate the claimant for the permanent loss of physical function, PTD benefits are to be paid only for the claimant’s work life.
Crawford v. Liberty NW [4/30/04] 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 the claimant's injuries are at maximum medical improvement and are in themselves permanently totally disabling.
Fellenberg v Transportation Ins. Co. [3/19/04] 2004 MTWCC 29 Under the 1983 law, where a claimant suffering from an occupational disease voluntarily retired and removed himself from the labor market long before the onset of alleged permanent total disability, he has not suffered a wage loss attributable to his occupational disease and is not entitled to permanent total disability benefits on that basis. He also failed to provide persuasive evidence that he has no reasonable prospect of employment should he decide to return to the labor market and is therefore not entitled to permanent total disability benefits on that basis. § 39-71-116(13), MCA (1981-1983). Affirmed in Fellenberg v. Transportation Ins. Co., 2005 MT 90
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).
Rockett v. Travelers [3/13/03] 2003 MTWCC 21 Where credible testimony by the claimant's treating physician establishes that further medical evaluation by a neurosurgeon with expertise in treatment of pain may lead to further treatment which may materially improve her cervical condition, claimant is temporarily totally disabled and is not presently permanently totally disabled.
Edmundson v. Liberty Mutual Fire Ins. [11/12/02] 2002 MTWCC 56 56-year old claimant with shoulder and neck problems, ongoing problems with diabetes, high blood pressure, high cholesterol, and dysthymia, was not credible in his testimony about the extent of his pain and his need to lie down every day to manage his pain. When claimant's claim of a need to lie down is discounted, the medical and vocational testimony supports the conclusion claimant has a reasonable prospect of physically performing regular employment.
Stephenson v. CIGNA [3/29/01] 2001 MTWCC 12 Generally. While pain is only one component to be considered in determining whether a claimant is permanently totally disabled, where pain is of such magnitude that it prevents the claimant from holding regular employment, the claimant is permanently totally disabled.
Shepard v. Borden, Inc. [5/23/00] 2000 MTWCC 28 The PTD claimant must demonstrate (1) that he has reached MMI and (2) that, as a consequence of his injury, he has no reasonable prospect of physically performing regular employment. Here, there is no dispute that claimant reached MMI and he convinced the WCC, based on medical evidence and his own testimony, that he has very limited cervical range of motion from his five cervical surgeries and suffers frequent debilitating headaches, making him currently unable to work. If his headaches were controlled, which is possible in the future, he may become employable, but for now, having reached MMI, he is PTD.
Johnson v. State Fund [8/20/99] 1999 MTWCC 52 63-year old truck driver fell and hit his head, shoulder, and lower back. Insurer accepted liability, but terminated TTD benefits when a physician released claimant to return to work. Medical records indicate claimant exaggerated his symptoms and failed to cooperate with medical testing and examination. His in-court testimony about his pain and limitations was not credible. While claimant unquestionably suffers from osteoarthritis, there was no objective medical evidence that he could not return to work in identified jobs. While it is possible claimant suffers genuine neck and low-back pain, his invalid responses during IME and FCE testing, his questionable responses during other medical examinations, and his behavior in Court make it impossible for the WCC to determine the true nature of his pain and disability. TTD benefits properly terminated; claimant is not PTD.
Wall v. National Union fire of Pittsburgh [8/16/99] 1999 MTWCC 50 [aff'd 2000 MT 389N (nonciteable opinion)] 52-year old mechanic/laborer was injured while operating grinder. Insurer accepted liability for shoulder condition, but denied liability for neck condition and that claimant was PTD. Where several jobs recommended by vocational providers were approved by physicians, and claimant's testimony led WCC to conclude he was merely unmotivated to seek employment, PTD claim denied.
Nielson v. State Compensation Insurance Fund [8/13/99] 1999 MTWCC 49 49-year old hot oiler with accepted claims relating to hand and arm pain not PTD where WCC did not credit claimant's testimony and medical records contain numerous indications that subjective pain reports were not supported by objective findings or contradicted by things such as observations of his capabilities and callouses on his hands.
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.
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.
Fitch v. Liberty Mutual Fire Ins. Co. [12/17/98] 1998 MTWCC 90 A 41-year-old stockroom merchandise handler claimed PTD after being struck on the head by a box. Almost four years after the injury, she claimed severe headaches, eye pain, neck pain, arm and right hand pain, and carpal tunnel syndrome due to the accident. Although some physicians rendered diagnoses or gave opinions supporting claimant's allegations of disability, those diagnoses and opinions were based upon claimant's subjective reports of pain and disability, which the Court found incredible. Employer's motion to dismiss on ground that claimant was not an employee and faked her fall denied where not supported by "appropriate supporting documents and affidavits" as required by ARM 24.5.316(3).
Durham v. State Fund [12/1/98] 1998 MTWCC 87 40-year old former ranch hand sought PTD benefits following accident with cattle. Although accident caused spine and heart problems, PTD claim was based on alleged fatigue and inability to concentrate. As the result of post-injury schooling, claimant was clearly qualified to perform a number of computer-related jobs, some of which were sedentary. The Court was not persuaded by the testimony of claimant or his treating physician, a family practitioner, that he is unable to concentrate on a full-time basis. The treating physician's testimony was based largely on claimant's subjective reports, which the Court found exaggerated, citing evidence that claimant performed well in school, had done some work post-injury, and was considered able to perform at least sedentary work by some physicians, one of whom attributed claimant's complaints to deconditioning.
Bartels v. State Fund [8/17/98] 1998 MTWCC 62 The Court finds PTD a 45-year old mill operator who suffered a closed head injury at the age of 39 and has not since worked. Given the impact of the head injury on claimant's pre-existing limited intellectual and cognitive abilities and hysterical personality tendencies, he presently has no prospect of regular employment. The Court notes that claimant was able to obtain and keep employment prior to the injury, but since the injury has not worked, other than through an on the job training program, which was ultimately not successful. The Court rejects the insurer's contentions claimant is not credible and is deliberately malingering. No credible expert has rendered that opinion. The Court's own impression of claimant through observations of his testimony at trial and review of the record is that claimant's bizarre behavior and incredible statements are a product of his personality and circumstances, including the aftereffects of the injury, and are not premeditated. Despite the PTD finding, the Court believes that with significant assistance, claimant could once more become employable, as suggested by his improvement during a 1993-1994 rehabilitation program.
Waite v. Montana Contractor Compensation Fund [6/5/98] 1998 MTWCC 47 35 year old claimant with severe, debilitating pain in low back, hips, and legs following fall on ice, found permanently totally disabled. She suffers tremors in her low body; the pain is always present; and she is on numerous medications, including controlled release morphine. There is no serious dispute that her tremors and pain are real, evidently the result of damage to her sacroiliac joint and/or interspinous ligaments. She tried to return to work twice, but each time suffered debilitating pain. While IME physician opined the tremors could be eliminated by learning and distraction, which is supported to some extent by video, WCC gives greater weight to treating physician where their expertise appears similar. Treating physician knows claimant better; his opinion is bolstered by claimant's apparent desire to return to work. But, WCC notes it does not find claimant will never be able to work and urges both parties to remain open to options for further treatment that may improve claimant's condition and employability.
Jones v. Reliance National Indemnity Co. [12/17/97] WCC No. 9709-7825 Citing Mogus v. Reliance National Indemnity Ins. Co., WCC No. 9705-7749, in which this Court ruled that a permanently totally disabled claimant is not entitled to permanent partial disability benefits, the insurer moved for summary judgment. Claimant argued he is not in fact permanently totally disabled. Where the only undisputed evidence before the Court on permanent total disability status is the fact that claimant has been so characterized by the insurer, the summary judgment motion must be denied. The insurer is not precluded, however, from attempting to prove at trial that claimant is in fact permanently totally disabled, in order to argue that Mogus applies.
DesJardins v. Liberty Northwest Ins. [9/12/97] 1997 MTWCC 50 A 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. While the insurer presented a videotape showing claimant engaged in shooting, riding a four-wheeler, and other activities at a Rendevous outing, the video showed him to move slowly, stiffly, and gingerly. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993). While he did continue to engage in knife-making activities, and sold or traded some knives, the Court was persuaded claimant had no reasonable prospect of earning any regular income through knife-making.
Best v. State Compensation Insurance Fund [8/23/95] 1995 MTWCC 62), aff’d Best v. State Compensation Insurance Fund, 276 Mont. 302, 916 P.1d 108 (1996) Claimant with long history of back pain was hired jointly with wife to work at bar and cafe. He suffered an acute flare-up after hitting his hip on a table. The insurer paid medical benefits relating to the flare-up, but refused to pay PTD benefits. Although a chiropractor opined claimant was worse off after the 1993 incident, the WCC found this opinion based on a misunderstanding of the facts where claimant’s wife had been performing 95% of the work at the bar and cafe. Claimant did not meet the definition of permanent total disability (section 39-71-116, (16), MCA (1991)) where his permanent total disability predated the 1993 incident and was not caused by that incident.
Frisbie v. Champion International Corporation [02/10/95] 1995 MTWCC 13 Where claimant was not a credible witness, repeatedly underestimating his drinking problem, showing poor memory, and inconsistent testimony, the Court did not believe that his back pain disabled him from all employment, but rather found him lacking in motivation. Based on the testimony of two doctors that claimant was stable and should be able to work if he stopped drinking, and that of a vocational consultant who identified several typical available jobs within claimant’s physical restrictions, claimant was not permanently totally disabled.