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Russette v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 3, 1994

THEODORE RUSSETTE, JR. Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for CHIPPEWA CREE HOUSING AUTHORITY Employer.

          DECISION AND ORDER

          MIKE MCCARTER JUDGE

         This case is presented on an agreed statement of facts. Petitioner suffered an industrial accident on September 26, 1991. On October 13, 1992, he reached maximum healing and became eligible for permanent partial disability benefits. However, by that time he had turned 62 years of age and had elected to receive early social security retirement benefits. He began receiving those benefits prior to October 13, 1992. The sole issue presented herein is one of statutory interpretation involving section 39-71-710, MCA. The parties have phrased the issue as follows:

Whether Claimant may be legally due compensation under Section 39-71-703, M.C.A. for permanent partial disability based upon the factors set forth in such statute in addition to the impairment rating, even though Claimant is receiving Social Security Retirement benefits.

         Agreed Facts

         As a part of the Pretrial Order the parties agreed and stipulated that the following facts are true:

a. Claimant sustained an injury to his left hip on September 26, 1991, while in the course and scope of his employment as a maintenance worker for the Chippewa Cree Housing Authority;
b. The accident occurred on the Rocky Boy Reservation. Venue is in Great Falls;
c. The employer is insured through Plan III;
d. The insurer has accepted liability for the accident of September 26, 1991;
e. Temporary total disability benefits were initiated on September 26, 1991, in the amount of $213.33 per week, until the Claimant was determined to have reached maximum medical healing on October 13, 1992;
f. Upon maximum medical improvement, Claimant was given an impairment rating of 17% by Dr. Ronald M. Peterson;
g. On October 13, 1992, permanent partial disability benefits based on the impairment rating were begun in the amount of $168.00 per week for a period of 59.50 weeks.
h. Claimant is currently receiving Social Security Retirement benefits, having elected to receive such benefits at age 62 and having begun to receive such benefits prior to October 13, 1992; and
i. Because Claimant has been receiving Social Security Retirement benefits prior to the date of maximum medical improvement, the State Fund has claimed that Claimant is due no further permanent partial disability award other than payment for the impairment rating.

         They further agreed that additional evidence is unnecessary to the resolution of the issue presented and that the case should be submitted on briefs. Having received and considered the agreed statement of facts and the parties' briefs, the matter is ready for decision.

         Discussion

         The statute at issue is section 39-71-710, MCA, which was last amended by the 1987 legislature. As amended it provides:

39-71-710. Termination of benefits upon retirement. (1) If a claimant is receiving disability or rehabilitation compensation benefits and the claimant receives social security retirement benefits or is eligible to receive full social security retirement benefits, the claimant is considered to be retired. When the claimant is considered retired, the liability of the insurer is ended for payment of wage supplement, permanent total disability, and rehabilitation compensation benefits. However, the insurer remains liable for temporary total disability benefits, any impairment award, and medical benefits.
(2) If a claimant who is eligible to receive social security retirement benefits and is gainfully employed suffers a work-related injury, the insurer retains liability for temporary total disability benefits, any ...

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