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Wimberley v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 2, 1994

ROGER WIMBERLEY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for SUPER 1 FOODS Employer.

          ORDER GRANTING SUMMARY JUDGMENT

          MIKE MCCARTER JUDGE

         Claimant brought this action for payment of the balance of a 22 percent impairment award. The State Fund refuses to pay the balance because of claimant's incarceration in the Montana State Prison, citing section 39-71-744, MCA (1989) as authority for its refusal.

         Both parties seek summary judgment. Neither has presented affidavits, discovery or other sworn evidence in support of the motions. However, in its Response to Petition the State Fund admits the allegations essential to summary judgment.

         As in prior cases, this Court will look to the Montana Rules of Civil Procedure for guidance in procedural matters when the Court's own rules are silent. Murer v. Montana State Compensation Mutual Ins. Fund, 257 Mont. 434, 436, 849 P.2d 1036 (1993). This Court's procedural rules recognize motions "for summary ruling" but provide no additional guidance. ARM 24.5.316 (1). In previous cases we have applied Rule 56, Mont.R.Civ.P, to motions for summary judgment, and we will do so in this case.

         Rule 56 (a), Mont.R.Civ.P. provides that summary judgment may be entered with or without supporting affidavits. Subsection (c) states:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

         Thus, if the pleadings establish uncontroverted facts which entitle the moving party to judgment as a matter of law, summary judgment is appropriate.

         From the pleadings, the following facts are established:

1)On July 28, 1989, the claimant injured his back in the course and scope of his employment with Super 1 Foods.
2)The State Fund insured Super 1 Foods at the time of the injury and accepted liability for the injury.
3)As a result of his injury claimant underwent back surgery. 4)On February 14, 1990, claimant's treating physician gave claimant a 22% impairment rating.
5)On August 24, 1990, the claimant was incarcerated at the Montana State Prison, where he remained until his release from prison on March 24, 1993.
6)On April 22, 1992, while claimant was still incarcerated, a claims examiner for the State Fund wrote to claimant, advising him that he was entitled to an impairment award of $3, 874.49, representing accrued impairment benefits from February 14, 1990 until August 24, 1990. A draft for the amount of the accrued benefits was enclosed. The letter further advised claimant that the "remainder of your impairment benefits will be payable either on a bi-weekly basis or in a lump sum once you are no longer incarcerated."
7)Shortly after claimant's release from prison he retained an attorney who wrote to the State Fund and demanded the ...

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