Benefits: Permanent Partial Benefits: Lost Earning Capacity

MONTANA SUPREME COURT DECISIONS

Hale v. Royal Logging, 1999 MT 302 Even though logger returned to work after 1976 back injury and surgery, he suffered a loss of capacity to perform as well before the injury and a loss of the ability to compete and earn in the open market, entitling him to permanent partial disability benefits under section 92-703.1, RCM (1975). The test under this statute is not whether there has been a loss of earnings or income caused by the injury, but rather whether claimant has lost earning capacity, the ability to earn on the open market. Under this rule, postinjury earnings are but one item of evidence to be considered.

Burglund v. Liberty Mutual Fire Ins. Co., 179 Mont. 298, 927 P.2d 1006 (1996) The relevant inquiry under section 39-71-703, MCA (1983) is whether a claimant's ability to earn in the open labor market has been diminished by a work-related injury after taking into account all relevant factors, including the injured worker's age, occupation, skills and education, previous health, number of productive years remaining, and degree of physical or mental impairment. A claimant does not have to prove his job is in jeopardy or there is a likelihood of losing present employment. In this case, the WCC did not find claimant's testimony credible and determined he did not have the physical restrictions he claimed. Where substantial evidence supports that determination, the Supreme Court will not overturn the WCC's determination claimant suffered no loss of earning capacity.

MONTANA WORKERS' COMPENSATION COURT DECISIONS

Lalum v. Safeco Ins. [3/19/01] 2001 MTWCC 11 Where claimant=s immediate post-injury jobs include higher paying light-duty positions which have never been medically disapproved, there is no wage loss and therefore no entitlement to permanent partial benefits.  ' 39-71-703 (1995).

Masters v. Liberty Northwest Ins. Corp. [2/4/00] 2000 MTWCC 10 Where claimant was working only part-time pre-injury, the question of wage loss is determined by comparing absolute part-time wages pre- and post-injury. Court distinguished situation where claimant loses the ability to work full time as a result of the injury, which requires some adjustment in computing wages pre- and post-injury.

Masters v. Liberty Northwest Ins. Corp. [1/6/00] 2000 MTWCC 1. Under section 39-71-703(5), MCA (1997), the measure of post-injury wages by what claimant is "qualified to earn" takes into account the possibility that claimant may not return to work immediately after reaching MMI or may be underemployed. What claimant is "qualified to earn" in entry level positions is determined by her actual job opportunities, not some hypothetical highest wage, or even average wage, unless she is in fact competitive for the higher or average wage positions. In light of claimant's lack of prior experience in positions at issue, and her need for some OJT training, claimant is competitive only for the lower paying jobs in these positions, meaning she has a wage loss under 39-71-703 and is entitled to additional PPD benefits.

Jenkins v. State Fund [7/30/99] 1999 MTWCC 47 Nurses aide hurt left shoulder at work. When she returned to work in a modified position pre-MMI, she hurt her right shoulder. Undisputed facts indicated she could not return to work as a nurses aide and suffered a wage loss. While claimant was entitled to a PPD award under section 39-71-703, MCA (1995) including percentages for wage loss, restrictions, age and impairment relating to the first injury, she was not entitled to a similar award relating to the second injury where that injury did not cause her wage loss.

S.L.H. v. State Fund [1/14/99] 1999 MTWCC 6 Claimant is entitled to additional PPD benefits in the form of 20% for wage loss. The 20% for wage loss was based on the WCC's finding claimant suffered over a $2.00 an hour wage loss, a finding based on taking into account claimant's post-injury inability to work her pre-injury number of hours. An absurd result would be produced if the Court were to construe section 39-71-303(3)(c), MCA (1991) as requiring comparison of pre-injury and post-injury wage rates without taking into account claimant's inability to work the number of hours she worked pre-injury as the result of the injury.

Hale v. Royal Logging [12/1/98] 1998 MTWCC 86 Claimant did not prove entitlement to permanent partial disability benefits under section 92-703.1, RCM (1975) where he testified he worked in pain, but worked smarter to keep up, and did not quantify any amount of lost earning capacity. [Note: WCC reversed on this determination in Hale v. Royal Logging, 1999 MT 302.]

Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis – one year and more – claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.

McGillis v. State Fund [11/2/98] 1998 MTWCC 79 Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.

Caplette v. Reliance National Indemnity Co. [10/1/98] 1998 MTWCC 69 Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for wage loss only if he suffered an actual wage loss because of his injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.

Bratcher v. Liberty Northwest Ins. Corp. [10/21/97] 1997 MTWCC 57 Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.

McLaughlin v. ANR [6/4/97] 1997 MTWCC 36 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.

Miller v. Western Guaranty Fund Services [7/29/96] 1996 MTWCC 51 Where claimant elected to seek PPD benefits pursuant to section 39-71-703, MCA (1983), which provides lost earning capacity benefits, and the parties agreed to assess earning capacity based on 1996 wages, the Court set the PPD rate by finding claimant's likely wage as a waitress in 1996 if not injured and subtracting her probable 1996 wage as a receptionist, the position the Court deemed most likely claimant could obtain and perform.

Certain v. PPG Industries Inc. [11/06/95] 1995 MTWCC 91 Claimant entitled to 25% award under sections 39-71-703 through 708, MCA (1985), not the 15% argued by the insurer, where he credibly testified to severe back problems limiting his physical capability, even though he is currently employed without wage loss. In ascertaining claimant’s lost earning capacity, the Court also considered claimant’s age, loss of heavy labor capacity, and eagerness to work.

Burgan v. Nationwide Ins. Co. [10/04/95] 1995 MTWCC 75 The permanent partial disability benefits available under sections 39-71-705 through -708, MCA (1985), commonly referenced as “indemnity benefits,” seek to indemnify the injured worker for “possible” loss of future earning capacity, rather than any “actual” loss of earning capacity. These benefits are based on a schedule of injuries, but in the case of a non-scheduled injury, such as the back injury at issue here, the maximum number of weeks of benefits is 500 weeks, with the award for less than a total loss to “be proportionate to loss or loss of use.” §39-71-706(1), MCA (1985). In determining disability, the Court must consider the claimant’s age, education, work experience, pain and disability, actual wage loss, and possible loss of future earning capacity.

Burglund v. Liberty Mutual Northwest Ins. Co. [4/10/95] 1995 MTWCC 25 UPS driver is entitled to benefits under sections 39-71-705 through -708, MCA (1983) where those benefits are to indemnify the worker for "possible" loss of future earning capacity. "Indemnity benefits" under those statutes are based on a schedule of injuries set forth in section 39-71-705, MCA (1983). In the case of a non-scheduled injury, such as claimant's back condition the maximum number of weeks of benefits is 500. With reference to the statute's purpose of providing benefits in proportion to the loss, and the factors for consideration (age, education, work experience, pain and disability, actual wage loss, possible loss of future earning capacity), the Court finds an additional ten percent appropriate, which amounts to a total of twenty percent given the ten percent award for impairment already paid. (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).)

Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 The benefits provided under old law section 39-71-703, MCA, are for actual loss of earning capacity. Post-injury wages, while one item of evidence in determining future earning capacity, are not conclusive; rather, the measure is whether there has been a loss of ability to earn in the open labor market. The loss must be permanent, with the Court taking into consideration not only pre-injury and post-injury wages but also the claimant’s age, occupational skills, education, previous health and remaining number of productive years and degree of physical or mental impairment. While a worker may return to his time-of-injury job and earn more than before, there may still be a loss of earning capacity if the workers’ performance is impaired and his ability to compete in the open labor market is lessened. Loss of efficiency in work decreases a worker’s chances of finding employment in the open labor market and translates into a reduced earning capacity.

Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 Fish, Wildlife and Parks field technician was entitled to additional benefits under section 39-71-703, MCA (1985), an old law section, where his ability to perform his time-of-injury job has been diminished. Although he is now performing that job satisfactorily, he can no longer perform some aspects of the job and has suffered diminished capacity to compete for jobs within his usual field of employment.

Stermitz v. State Compensation Ins. Fund [12/21/94] 1994 MTWCC 116 In assessing lost earning capacity under section 39-71-703, MCA (1985), an “old law” section, the Court must compare claimant’s earning capacity absent injury to present earning capacity, looking to claimant’s ability to earn in the open labor market, considering also his difficulty in performing his old job.