Disability: Permanent Total

MONTANA SUPREME COURT DECISIONS
McFerran v. Consolidated Freightways [12/28/00] 2000 MT 365 Regular employment" within section 39-71-116(24), MCA (1997) includes part-time work which is "both substantial and significant." A pharmacy delivery job paying $5.50 per hour was not substantial and significant where a written job analysis stated hours could be as low as six hours per week.
Larson v. Cigna Ins. Co., 276 Mont. 283, 915 P.2d 108 (1996) (Larson II) The definition of permanent total disability within section 39-71-116(13), MCA (1979) contains both medical and non-medical components. The non-medical component requires claimant to establish “no reasonable prospect for employment in the normal labor market,” which requires showing of (1) what jobs constitute his or her normal labor market, and (2) a complete inability to perform the employment and duties because of his or her work related injury. Once the claimant has presented evidence affirmatively showing that he cannot return to work in his normal labor market, the burden of proof shifts to the insurer to show that suitable work is available.
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.
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).
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

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. Ace American Ins. [6/7/02] 2002 MTWCC 32 Where there are conflicting medical opinions as to claimant's ability to return to work after reaching maximum medical improvement, the Court adopts the opinions of the physicians with the greater expertise where those opinions are supported by information showing that claimant failed to seek further treatment for the alleged disabling condition and an FCE showed that she could work despite her pain behaviors. Claimant's credibility was also a factor.
P. Davis v. Credit General Insurance Company [8/9/00] 2000 MTWCC 48 Claimant's testimony that right shoulder pain prevents him from using his right arm and therefore from working does not prove PTD status where medical testimony established that his reported pain is inconsistent with his medical condition, objective medical evidence, and anatomical dermatomal patterns; and that his reported lack of use of his right arm is inconsistent with objective findings of muscle mass. Moreover, claimant denied engaging in activities he is shown doing during videotaped surveillance. Affirmed in nonciteable decision 2002 MT 11N.
Eric Johnson v. State Compensation Insurance Fund [8/20/99] 1999 MTWCC 52 A 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)] A 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.
Palmer v. Home Insurance Company [7/21/99] 1999 MTWCC 42 A 46-year old laborer with sixth grade education and lower back injury was released to work in sedentary and light-duty jobs. Vocational Rehabilitation Provider identified three jobs as appropriate without further training or rehabilitation: small products assembler, keno caller, and telemarketer. Claimant agreed he could physically work as a keno caller or small products assembler if the jobs did not require much speed. Claimant's vocational expert raised questions about some jobs, and indicated claimant would at the least need considerable vocational assistance. Claimant failed to convince court he was PTD, but Court held that claimant's limited intelligence, skills, and abilities restrict his employability and that a trial period of employment, including special supervision and training, is necessary for him to have a reasonable prospect of employment. The rehab plan was insufficient in that it did not provide sufficient time for a realistic job search, a trial work period, or for training or assistance in new job. Further vocational assistance ordered.
Winfield v. State Compensation Insurance Fund [7/20/99] 1999 MTWCC 41. Disability is not a wholly medical determination. In addition to claimant's age, education, work history, skills and abilities, pain is another factor the Court must consider in deciding whether claimant is permanently totally disabled. Pain may be so severe for some individuals that it renders them physically incapable of performing regular employment within section 39-71-116(16) (1991), MCA. Court credited claimant's pain reports and found him PTD, noting that inability to work on a regular, sustained basis is not the equivalent to inability to engage in any sort of activity.
Kloepfer v. Lumbermen’s Mutual Casualty Co. [9/18/95] 1995 MTWCC 70, affirmed Kloepfer v. Lumbermen’s Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996) While pain must be considered in determining the ability of an injured worker to return to work, WCC was persuaded this claimantís ability to return to work was purely a function of her motivation. Although surgeon opined she could work part-time only, his opinion was based on claimantís pain reports, not objective physical limitations. More persuasive opinions came from IME conducted by occupational health and chronic pain experts who found no neurological or physical deficits, pain amplified by psychological factors, and lack of motivation to work. The Supreme Court affirmed in Kloepfer v. Lumbermenís Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996), finding substantial evidence to support the WCCís finding.