Impairments: Impairment Ratings

S.L.H. v. State Compensation Mutual Insurance Fund [12/28/00] 2000 MT 362 Under section 39-71-711 (1), MCA (1991), once a doctor has determined the existence of a mental impairment based on the current edition of the Guides to Evaluation of Permanent Impairment, the workers' compensation judge is empowered to translate the medical testimony into a specific percentage of impairment when the doctor follows the admonishment of the 4th edition of the Guides that physicians should not assign a specific percentage for mental impairments.

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Petitioner’s treating physician found her to be suffering from a “classic asbestos related obstructive defect” and assigned her a 45% impairment rating under the 5th Edition of the AMA Guides.  The Court concluded that under Drake and Hilbert, the “current edition of the Guides” in § 39-71-711(1)(b), MCA, are those in effect on the date claimant reaches MMI, and since under Fellenberg, an asbestosis victim was at MMI on the date of diagnosis, the physician used the correct edition of the guides that were in effect in May 2005, when Petitioner was first diagnosed with ARD.

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.

Johnson v. Liberty NW Ins. Corp. [08/05/13] 2013 MTWCC 18 Petitioner’s claim falls under the 1999 version of the WCA, where § 39-71-711(1)(b), MCA, mandates that the “current edition” of the Guides be used in calculating an impairment rating.  The “current edition" would be the 5th edition since Petitioner reached MMI on April 16, 2001.

Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 The correct edition of the Guides to use in calculating impairment ratings is the current or latest edition in existence at the time an injured worker reaches MMI.
Drake v. Montana State Fund and Hilbert v. Montana State Fund [01/19/11] 2011 MTWCC 2 The impairment rating is not itself a benefit.  Rather, as defined by the Legislature, it is a purely medical determination which occurs after an injured worker reaches MMI.
Mack v. Transportation Ins. Co. [05/22/07] 2007 MTWCC 16 Although the Court found both physicians to be credible witnesses, the Court found the testimony of Dr. Whitehouse, Petitioner’s treating physician, to be more persuasive than Dr. Headapohl’s testimony. Both physicians relied on both subjective and objective information. Both physicians employed a certain amount of clinical judgment. Dr. Whitehouse has extensive experience specifically treating asbestos patients in Libby. He has also treated Petitioner for a considerable length of time. Additionally, the methodology utilized by Dr. Whitehouse to determine what constitutes the minimum viable DLCO is more persuasive than the methodology utilized by Dr. Headapohl. Therefore, the Court finds Dr. Whitehouse’s impairment rating more persuasive.
Paul v. Transportation Ins. Co. [10/07/04] 2004 MTWCC 69 In an asbestosis case, where the impairment rating is based on the claimant's total lung capacity, and a 40% total lung capacity equates to a 50% impairment, the impairment rating for less than 40% total lung capacity should be proportionate between the 40% and the minimum percentage compatible for life. In this case, the persuasive medical evidence establishes the minimum percentage compatible with life at 30%. The claimant's capacity has varied but the worst measurement was 35%, which the Court adopts in light of the progressive nature of his disease. Since a 30% capacity is the minimum amount compatible with life, the claimant's impairment rating must be calculated based on the difference between the 40% and 30% lung capacities. Since a 40% capacity equates to a 50% impairment rating, and a 30% lung capacity is equivalent to a 100% impairment, the claimant is entitled to a 75% impairment rating and award.
Broyles v. Albertson's [2/27/04] 2004 MTWCC 19 Based on prior testimony of physicians appearing before the Court over many years, the Court takes notice that an impairment rating often requires actual physical testing of the claimant, such as range of motion testing, in order to render an impairment rating under the Guides to Impairment.
Nielson v. State Fund [2/20/04] 2004 MTWCC 12 Where the only impairment rating is that of the treating physician and the Supreme Court has held on appeal that the treating physician's opinions are entitled to deference and relied upon those opinions in reaching its decision, the treating physician's impairment rating is adopted.
Lalum v. Safeco Ins. [3/19/01] 2001 MTWCC 11 Insurer is liable for full impairment percentage where impairment rating is for a single, indivisible condition even though non-occupational factors may have contributed to the condition. There is no apportionment.
Beyl v. Liberty Northwest Ins. Corp.[12/21/00] 2000 MTWCC 75 Section 39-71-711 defines permanent impairment under the Workers' Compensation Act and must be followed in determining whether a worker is a disabled worker within the meaning of rehabilitation provisions, 39-71-1011 (2) (1997).
Jones v. Reliance National Indemnity Company [3/17/99] 1999 MTWCC 22 Although chiropractor testified about appropriate impairment ratings for claimant following 1983 and 1987 injuries, statutes in effect at time of those injuries are not satisfied by chiropractor's testimony; thus, impairment awards cannot be based on that evidence. See, Weiss v. Division of Workers' Compensation, 232 Mont. 218, 220, 755 P.2d 1385, 1386 (1988).
McGillis v. State Fund [11/2/98] 1998 MTWCC 79 The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.
Estate of James Jacques v. Borden, Inc. [3/20/97] 1996 MTWCC 14 Section 39-71-711, MCA (1989) limits impairment evaluations to medical doctors and chiropractors, thereby precluding valid impairment ratings by a psychologist.
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 an Independent Medical Examination or Functional Capacities Evaluation.