Kellegher v. MACO Workers' Compensation Trust [08/12/15] 2015 MTWCC 16 The Court concluded that Petitioner could not perform any of the jobs for which analyses were submitted where the requirements exceeded his pre-existing limitations and the restrictions noted in an FCE report, and where none of the jobs were vocationally appropriate for Petitioner because his condition left him unable to work on a computer for any length of time.  Furthermore, the vocational rehabilitation counselor who developed the job analyses failed to investigate whether potential employers would consider the job modifications as approved reasonable, and conceded that if she had known of Petitioner’s inability to use a computer, she would have developed different job analyses, which indicated she did not believe the jobs were vocationally appropriate for Petitioner.

Kellegher v. MACO Workers' Compensation Trust [08/12/15] 2015 MTWCC 16 The insurer bears the initial burden to produce evidence showing that the claimant is not permanently totally disabled by submitting sufficient evidence that approved jobs exist since § 39-71-609(2), MCA, requires the insurer to obtain a physician’s approval of one or more jobs suitable for the claimant.

Drivdahl v. Zurich Am. Ins. Co. [11/16/12] 2012 MTWCC 43 Although an injured worker ordinarily bears the burden of proving that he is entitled to the benefits he seeks, under § 39-71-609(2), MCA, the insurer bears the initial burden to produce evidence that the injured worker is not permanently totally disabled.  Where Respondent met its initial burden of proof by introducing approved job analyses into evidence, the burden then shifts back to Petitioner to prove that, notwithstanding the approved job analyses, he is entitled to PTD benefits.