Benefits: Temporary Total Benefits

MONTANA SUPREME COURT DECISIONS

Aldrich v. Montana State Fund [02/18/09] 2009 MT 40 The Montana Supreme Court affirmed the Workers’ Compensation Court’s conclusion that a claimant’s receipt of Social Security retirement benefits did not preclude him from receiving temporary total disability (TTD) benefits where he satisfies § 39-71-701, MCA, by not reaching maximum healing and suffering a total loss of wages. Since the claimant was not earning a wage at the time of his surgery and treatment, the court concluded he did not suffer a “total loss of wages” as a result of the condition and surgery and therefore is not entitled to TTD benefits. The Supreme Court noted that the claimant had not demonstrated that he had any job prospects which he could not accept on account of his injury. Had he been able to make such a demonstration, then his argument that he sustained a total wage loss might have had merit.

 
 
WORKERS' COMPENSATION COURT CASES

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 The Court found that Petitioner’s time-of-injury employer would have been able to accommodate the restrictions Petitioner had at the time he was released to work. The Court rejected Petitioner’s unsupported argument that he should be entitled to TTD benefits because he moved out of state and was therefore unable to accept the modified job position.

Starkey v. ACE American Ins. Co. [03/17/14] 2014 MTWCC 6 Where the evidence demonstrates that Petitioner continued to work in her time-of-injury job, with accommodations by her employer, until she quit work when she broke up with her boyfriend and moved to Wyoming to live with her sister, Petitioner has presented no evidence that she suffered a wage loss due to her injury and is not entitled to wage loss benefits.

Tuttle v. First Liberty Insurance Corp. [10/23/12] 2012 MTWCC 37 The Court held that, although Petitioner’s treating physician found her at MMI, it could hardly be said that a definitive determination of her condition had been made since the cause of her lumbar pain and sciatic complaints were not investigated.  However, because Petitioner was engaged as a home health care nurse for several months post-MMI, she was not entitled to reinstatement of her TTD benefits until her treating physician made it clear that her disability caused her inability to perform her time-of-injury job.

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 Where Respondent raised no argument that Petitioner’s “service-for-service agreement” in which she exchanged work for veterinary services, the fact that Petitioner, subsequent to trial, did receive wages for post-trial work she performed for the veterinary clinic does not change her eligibility for TTD benefits.  However, if the parties cannot agree on which post-trial weeks Petitioner received wages which would obviate Respondent’s liability for TTD benefits for specific weeks, the parties may raise this matter in a new petition before this Court.

Koch v. Employers' Ins. Group [04/30/12] 2012 MTWCC 14 Where Petitioner was taken off work by her treating physician in May 2010, and no doctor has opined that she has reached maximum healing, the Court concluded Petitioner suffered a total loss of wages and is entitled to TTD since May 2010.

Holmes v. Safeway Inc. [03/06/12] 2012 MTWCC 8 Petitioner is not entitled to temporary total disability benefits until he is retrained to return to the labor market because: 1) he does not meet the definition of a disabled worker under § 39-71-1011, MCA, since alternative jobs were approved for him in which he would suffer no actual wage loss; 2) he testified his back pain precludes even part-time, sedentary jobs; and 3) he put forth no evidence to indicate he even had an interest in vocational rehabilitation.

Dostal v. Uninsured Employers' Fund [02/16/12] 2012 MTWCC 5 Where the Court concluded that a claimant had not returned to work, the Court further concluded that the claimant was entitled to reinstatement of her TTD benefits retroactive to the date of their termination because the UEF had not fulfilled the Coles criteria.  However, since the claimant admitted that on three occasions she received wages, the Court further concluded that she was not entitled to TTD benefits for the weeks in which she received those wages.

Ford v. Sentry Casualty Co. [07/20/11] 2011 MTWCC 19 Although Petitioner may not be at MMI, no one disputed his treating physician’s opinion that Petitioner could return to work without restriction. Therefore, Petitioner is not entitled to TTD benefits under § 39-71-701(1), MCA.

Grande v. Montana State Fund [06/17/11] 2011 MTWCC 15 The Court concluded Petitioner was entitled to TTD benefits where it was undisputed he no longer had a commercial driver’s license because he was unable to pass the physical examination, and the lack of a CDL precluded him from returning to his time-of-injury employment.

Sherwood v. Watkins & Shepard Trucking [02/15/11] 2011 MTWCC 4 Petitioner became entitled to TTD benefits on the date in which a physician opined that he was fully disabled due to his dependency on prescription pain medication.  Although Petitioner argued that his TTD benefits should have started on an earlier date, no previous medical opinions took Petitioner off work due to his medication regimen.
Sherwood v. Watkins & Shepard Trucking [06/30/10] 2010 MTWCC 19 Where the treating physician expressed reservations about the claimant’s ability to continue in his chosen career, but stopped short of taking the claimant off work, the Court concluded the claimant was no longer released to return to his time-of-injury employment only after an IME physician opined at a later date that he could not return to his time-of-injury employment, therefore making him eligible for TTD benefits.
Wright v. Ace American Ins. Co. [05/24/10] 2010 MTWCC 11 Where the Court determined that the claimant is entitled to additional medical treatment which would reasonably be expected to materially improve his condition, he is not at MMI. Since he has not been released to return to his time-of-injury employment or employment with similar physical restrictions, he is entitled to TTD benefits.
Hart v. Hartford Ins. Co. of the Midwest [04/07/10] 2010 MTWCC 8 Where Petitioner’s only work restriction was light-duty, no physician removed him from work entirely, and Petitioner’s employer provided him with a light-duty job where he was never asked to exceed his restrictions, the Court held that Petitioner was not entitled to TTD benefits.
Carey v. American Home Assurance Co. [02/01/10] 2010 MTWCC 3 Where the claimant's industrial injury did not cause her wage loss, and where the Court concluded § 39-71-609, MCA, did not apply to her claim, the Court further concluded that the claimant was not entitled to TTD benefits.
Pugh v. Charter Oak Fire Ins. Co. [01/12/10] 2010 MTWCC 1 Petitioner failed to demonstrate that she suffered a total loss of wages as a result of her injury where she voluntarily resigned from the company, moved to Colorado Springs to be closer to her daughter and grandchild, worked sporadically as a caterer, and acknowledged that her injury did not limit her from obtaining restaurant and grocery jobs.  Petitioner’s decision not to seek office employment was not because of her injury, but because she wanted to be available to provide day care for her grandchild.
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 Where an insurer argued that it never gave a claimant written consent to continue working his second job while receiving TTD benefits, and the Court concluded that the insurer had given written consent under § 39-71-701(7), MCA, the Court further concluded that the insurer had never withdrawn its consent and therefore remained liable for the claimant’s TTD benefits so long as he remained eligible under § 39-71-701(1), MCA.
Cardwell v. Uninsured Employers' Fund [05/16/08] 2008 MTWCC 24 Where the employer’s payments to Petitioner varied widely in both time and amount, the payments were not made every two weeks or on any other set time frame, and Petitioner was paid a percentage of the amount the employer received for a given job causing the pay to fluctuate accordingly, the Court concludes that the UEF has shown good cause for utilizing § 39-71-123(3)(b), MCA, in calculating Petitioner’s average weekly wage.
Aldrich v. Montana State Fund [12/20/07] 2007 MTWCC 57 Where Petitioner had not worked for approximately eleven years and had been drawing Social Security retirement benefits for approximately two years, and none of the facts presented to the Court establish that Petitioner suffered any wage loss as a result of his injury when he was no longer at maximum healing, the Court held that Petitioner failed to meet his burden of proof that he was entitled to TTD benefits.
Aldrich v. Montana State Fund [12/20/07] 2007 MTWCC 57 Where Petitioner petitioned the Court for TTD benefits notwithstanding his age or social security retirement status, the mere fact that § 39-71-710, MCA, does not preclude Petitioner’s eligibility for TTD benefits due to his retirement status, does not in and of itself establish his entitlement to such benefits. In order to be eligible for TTD benefits, Petitioner must first satisfy the requirements of § 39-71-701, MCA, (1) a total loss of wages, and (2) the worker must not be at MMI. Were the Court to adopt Petitioner’s rationale that he should be entitled to TTD benefits without proving any actual loss of wages simply because he is no longer medically stable, it would require the Court to ignore or contravene Montana public policy that wage-loss benefits should bear a reasonable relationship to actual wages lost as a result of a work-related injury. § 39-71-105(1), MCA.
Porter v. Liberty [10/19/07] 2007 MTWCC 42 Where Petitioner’s treating physician withdrew his opinion that Petitioner had reached maximum medical improvement (MMI) and no other doctors have opined that Petitioner has reached MMI, Petitioner is entitled to reinstatement of his TTD benefits.
Peterson v. MSGIA [04/07/06] 2006 MTWCC 14 By definition, temporary total disability (TTD) exists only until the injured worker reached maximum medical improvement (MMI). Section 39-71-116(34), MCA. Where it is undisputed that Petitioner has reached MMI, Petitioner is no longer eligible for TTD benefits.
Vallance v. MCCF, 2006 MTWCC 15 [04/11/06] Where Petitioner, while participating in a return-to-work program which modified his duties to meet his pre-medical stability restrictions, voluntarily resigned his position with his time-of-injury employer, he is not entitled to TTD benefits so long as he is released to perform the duties available to him in the return-to-work program.
Choi v. Costco Wholesale Corp. [08/01/05] 2005 MTWCC 43 To be entitled to temporary total disability benefits, an injured worker must prove that she has suffered a total loss of wages on account of her industrial injury. Where the loss of wages is due to factors unrelated to the injury and the injury does not preclude her from working at her time-of-injury job, the claimant is not entitled to temporary total disability benefits.
Fellenberg v Transportation Ins. Co. [3/19/04] 2004 MTWCC 29 Where the claimant suffers from a degenerative, progressive occupational disease that will never get better with any medical treatment, he is at maximum medical improvement (MMI) and is not entitled to temporary total disability benefits. Affirmed in Fellenberg v. Transportation Ins. Co., 2005 MT 90
Greene v. UEF [4/9/03] 2003 MTWCC 27 Where claimant who had been previously released to a modified position becomes physically unable to perform that position, he again becomes entitled to TTD benefits. § 39-71-701(4), MCA.
Greene v. UEF [4/9/03] 2003 MTWCC 27 Under section 39-71-701(4), MCA, a claimant is disqualified from TTD benefits so long as he is released to a modified position and the position is available. A claimant cannot bootstrap TTD entitlement by refusing the position or quitting the position without good cause.
Greene v. UEF [8/7/02] 2002 MTWCC 37 Under section 39-71-701(4), MCA, a claimant is disqualified from TTD benefits so long as he is released to a modified position and the position is available. A claimant cannot bootstrap TTD entitlement by refusing the position or quitting the position without good cause.
Thompson v. Liberty Northwest Ins. Corp. [6/12/02] 2002 MTWCC 34 Where a claimant is participating in a rehabilitation plan and going to school, and he has not reached MMI with respect to his industrial accident, he is entitled to TTD benefits during those vacation periods he does not receive rehabilitation benefits.
Burtell v. State Fund [3/18/02] 2002 MTWCC 18 A claimant is no longer entitled to TTD benefits where she has reached MMI, has been medically and vocationally approved to return to several jobs, and her excuses for failing to return to work are unpersuasive.
Chapel v. MACO [12/14/01] 2001 MTWCC 63 Ambulance volunteers who receive no wages are not entitled to temporary total disability benefits.
Chapel v. MACO [12/14/01] 2001 MTWCC 63Ambulance volunteers are not firefighters and are not entitled to imputation of wages under section 39-71-118(7), MCA (1995), for purposes of calculating temporary total disability benefits.
Chapel v. MACO [12/14/01] 2001 MTWCC 63 Volunteer firefighters not employed by rural fire districts are not entitled to imputation of wages under section 39-71-118(7), MCA (1995), for purposes of calculating temporary total disability benefits.
Chapel v. MACO [12/14/01] 2001 MTWCC 63Volunteer ambulance workers are not entitled to temporary total disability benefits based on concurrent self-employment where they have not elected workers' compensation coverage with respect to the self-employment. § 39-71-123(4)(c), MCA (1995).
Kellberg v. Liberty NW Ins. Corp. [8/24/01] 2001 MTWCC 48 Where a claimant is released to return to work in a modified position and quits that position prior to maximum medical improvement but for reasons unrelated to his injury, he is not entitled to reinstatement of benefits until such time as the job would have become unavailable to him either because it would have ended or he had become physically unable to do the work.
Daulton v. MHA Workers' Comp. Trust [7/09/01] 2001 MTWCC 37 Under 1997 and 1999 law, §§ 39-71-701 and -609, MCA, once claimant has been found to be at MMI and has been released to return to any sort of employment, she is no longer entitled to temporary total disability benefits.
Peone v. Liberty NW [2/01/01] 2001 MTWCC 6 Where medical opinion that claimant has not reached maximum medical improvement is based on the fact that claimant would benefit from physical therapy, and the claimant has had the opportunity for the therapy but failed to pursue it, the claimant has reached MMI and is not entitled to temporary total disability benefits.
Peone v. Liberty NW [2/01/01] 2001 MTWCC 6 Where claimant quit work for reasons unrelated to her industrial injury her wage loss is not the result of her injury and she is not entitled to temporary total disability benefits.

Beyl v. Liberty Northwest Ins. Corp.[12/21/00] 2000 MTWCC 75 Where a claimant needs surgery for a work-related injury, he or she is still temporarily totally disabled and has not reached maximum medical improvement. Such claimant is entitled to temporary total disability benefits during periods of unemployment until recovery from surgery or for a reasonable period of time in which to undergo surgery.

Block v. Indemnity Ins. Co. of North America [4/18/00] 2000 MTWCC 23 Where records from numerous medical providers documented claimant's drug seeking behavior, and claimant was not credible witness, Court rejected her testimony about continued disability and that of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.
Hall v. State Fund [1/13/99] 1999 MTWCC 3 Where insurer accepted OD claim on diagnosis of multiple chemical sensitivity, and persuasive medical testimony indicated claimant had reached MMI on physical symptoms arising from workplace exposure, but had not reached MMI on somatoform disorder arising from the physical exposure, claimant was entitled to TTD benefits during period of treatment of somatoform disorder.
Derlatka v. Pacific Employers' Ins. Co. [7/20/98] 1998 MTWCC 57 Mill worker who received surgery for elbow problems (medial epicondylitis) after mill closed was not entitled to additional TTD for period between mill closure and scheduling of surgery. Although he had elbow problems, claimant was working prior to the mill closure. No doctor took him off work. While he may have become disabled at some point prior to the scheduling of surgery, he has not carried his burden of proving a date of disability to the Court. He is entitled, however, to TTD benefits from the date surgery was scheduled, when it was plain he had become totally disabled, to the date of surgery, and from the date of surgery to MMI, less periods he actually performed work for his daughter's cleaning company. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. As a matter of fact, the Court found claimant temporary totally disabled between the date of surgery and MMI.
Kuykendall v. Liberty Northwest [2/13/98] 1998 MTWCC 8 By proving he was medically/vocationally unable to return to his time-of-injury job or to work with similar characteristics, claimant has proven his entitlement to temporary total disability benefits for those periods pre-MMI when he was not working. For those periods pre-MMI when he worked at lesser paying jobs, he is entitled to temporary partial disability benefits.
Kuykendall v. Liberty Northwest [2/13/98] 1998 MTWCC 8 By proving he was medically/vocationally unable to return to his time-of-injury job or to work with similar characteristics, claimant has proven his entitlement to temporary total disability benefits for those periods pre-MMI when he was not working. For those periods pre-MMI when he worked at lesser paying jobs, he is entitled to temporary partial disability benefits.
Klein v. Liberty Northwest Ins. Corp. [3/4/97] 1997 MTWCC 7 Injured CNA was not at maximum medical improvement where her deconditioning prevented her from returning to her normal CNA duties. Where a sustained exercise program promised to increase claimant's conditioning sufficiently for her to resume her job, there was a reasonable potential for "material improvement" in her condition within section 39-71-116(17), MCA, (1993). She was entitled to TTD benefits during the period she still required conditioning. This does not mean, however, that insurers must pay to train claimants as athletes or that additional conditioning will result in "material improvement" in every case.
Coates v. Liberty Northwest Ins. Corp. [11/18/96] 1996 MTWCC 71 Claim for continued TTD benefits denied where WCC did not credit claimant's reports of pain and disability and found she purposefully exaggerated her complaints to obtain benefits. This conclusion was based on several factors, including: the lack of objective medical evidence of any continued condition; contradiction between her demeanor in court and records of pain behavior displayed for physicians; conflicts between her testimony and that of medical providers; conflicts between her deposition and trial testimony; observations of pain behavior by medical providers.
Ranes v. Lumbermens Mutual Casualty Co. [7/5/96] 1996 MTWCC 49 Where a claimant quits a modified job she was performing prior to reaching MMI because she is unable to do the work due to her injury, she requalifies for temporary total disability benefits under section 39-71-701(4), MCA (1993) because the modified job is no longer available to her.
Ranes v. Lumbermens Mutual Casualty Co. [7/5/96] 1996 MTWCC 49 Where the evidence indicates claimant has carpal tunnel syndrome as the result of employment, and her unrebutted testimony indicates she cannot perform her time-of-injury job due to the condition, she is entitled to temporary total disability benefits until she reaches MMI and evidence is developed regarding the impact of her condition on her employability.
Kress v. State Fund [6/25/96] 1996 MTWCC 46 Where claimant sought temporary total disability benefits in a prior case, and failed to carry his burden of proof, the doctrine of res judicata bars any subsequent attempt to obtain temporary total disability benefits for the period prior to the date of the last trial. However, because claimant=s condition may have deteriorated after the previous trial, a claim for entitlement to temporary total disability benefits after the prior trial may proceed, but claimant must prove there has been an aggravation of his disability.
Ware v. State Fund [5/15/96] 1996 MTWCC 34 Under 1991 Act, claimant not entitled to TTD during period he lost wages not as the result of his injury, but because he chose to move to be nearer his children. He was also not entitled to TTD during period for which he failed to establish he was unemployed as the result of flare-ups of his condition and not merely lack of immediate jobs in his labor market. He was entitled to back TTD, however, for period after which his shoulder condition deteriorated such that surgery was recommended, including period during which insurer insisted on further conservative treatment prior to paying for surgery.
Ware v. State Fund [5/15/96] 1996 MTWCC 34 An injured worker capable of continuing to perform work within his or her labor market is ineligible for TTD benefits whether or not the worker continues to work as a true employee or undertakes self-employment. Weaver v. Buttrey Food and Drug, 255 Mont. 90, 96, 841 P.2d 476, 480 (1992).
Gallup v. State Compensation Insurance Fund [5/21/96] 1996 MTWCC 35 Where claimant’s request for temporary total disability benefits was denied in a prior case, the doctrine of res judicata bars her present attempt to obtain temporary total disability benefits for the period prior to the last trial. Any claim for TTD benefits for the period after the previous trial must turn on whether claimant’s condition changed.
Loss v. Lumbermen's Mutual Casualty Co. [3/15/96] 1996 MTWCC 24 Section 39-72-701, MCA (1991) of the OD Act does not authorize the Court to award TTD benefits after claimant has reached maximum medical healing.
Rooney v. Credit General Ins. [06/29/95] 1995 MTWCC 53 Though not all physicians who have evaluated claimant recommend surgery at present, the weight of the evidence indicates surgery is a reasonable medical treatment, making the insurer liable if claimant chooses to undergo surgery. Since surgery may alleviate or diminish some of claimant’s symptoms, he has not reached maximum medical healing, and is entitled to temporary total disability benefits retroactive to the date of their termination.

O'Connor v. National Union Fire Ins./Alexsis [05/19/95] 1995 MTWCC 38 Where Court was persuaded claimant would have been unable to work after certain date due to painful back condition, she is entitled to receive temporary total disability benefits from that date, irrespective of insurer’s contention that she was terminated from employment following accusation of shoplifting not proven to the Court.

Stermitz v. State Compensation Ins. Fund [01/12/95] 1995 MTWCC 1 Under sections 39-71-116(19) and (20), MCA (1985), public employee is not entitled to temporary total disability benefits for paid days off work, whether taken as sick leave or vacation. Where claimant was advised that he could collect temporary total disability benefits, but chose to use sick leave and vacation, this is not a case where the insurer’s denial of benefits gave claimant no alternative but to use other forms of paid leave.
Ingebretson v. Louisiana-Pacific Corp. [12/14/94] 1994 MTWCC 113 Although self-insured employer brought claimant back to work prior to MMI by offering him work within his restrictions (see section 39-71-701(4), MCA (1993)), it assigned him work that caused him pain, and refused to heed his requests for reassignment. When claimant fell asleep at work the next day, it was because his employer-caused pain had caused a sleepless night. Employer’s purported termination for sleeping at work was a pretext for the employer to rid itself of a disabled employee, making the alternative job “no longer available” to claimant and entitling him to reinstatement of temporary total disability benefits. Claimant was entitled to temporary total disability benefits, attorneys fees, and penalty. Affirmed in Ingebretson v. Louisiana-Pacific Corporation, 272 Mont. 294 (1995) (No. 94-622).