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Rich v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

December 20, 1995

JERRY RICH Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          Submitted: December 18, 1995

          ORDER DISMISSING PETITION

          MIKE McCARTER JUDGE.

         Summary: Respondent moved to dismiss PTD petition for claimant's alleged failure to exhaust rehabilitation panel provisions of 1987 law.

         Held: Section 39-71-1011, MCA (1987), et seq., requires rehabilitation services for disabled workers, including a rehabilitation panel designed by the DOL, and DOL hearing procedures, with the right of appeal of the DOL determination to the WCC. Where the rehabilitation procedures were invoked, and are still pending, claimant may not circumvent those procedures by filing a permanent total disability petition in the WCC.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-1011, MCA (1987), et seq. Section 39-71-1011, MCA (1987), et seq., requires rehabilitation services for disabled workers, including a rehabilitation panel designed by the DOL, and DOL hearing procedures, with the right of appeal of the DOL determination to the WCC. Where the rehabilitation procedures were invoked, and are still pending, claimant may not circumvent those procedures by filing a permanent total disability petition in the WCC.

         Appeals (To Workers' Compensation Court): Generally. Section 39-71-1011, MCA (1987), et seq., requires rehabilitation services for disabled workers, including a rehabilitation panel designed by the DOL, and DOL hearing procedures, with the right of appeal of the DOL determination to the WCC. Where the rehabilitation procedures were invoked, and are still pending, claimant may not circumvent those procedures by filing a permanent total disability petition in the WCC.

         Benefits: Rehabilitation Benefit: Rehabilitation Panel. Section 39-71-1011, MCA (1987), et seq., requires rehabilitation services for disabled workers, including a rehabilitation panel designed by the DOL, and DOL hearing procedures, with the right of appeal of the DOL determination to the WCC. Where the rehabilitation procedures were invoked, and are still pending, claimant may not circumvent those procedures by filing a permanent total disability petition in the WCC.

         The claimant in this matter seeks a determination that he is permanently totally disabled. Respondent moves to dismiss the petition on account of claimant's failure to exhaust the rehabilitation panel provisions set forth in Title 39, chapter 71, part 10. The motion is granted.

         According to the petition, claimant was injured on May 16, 1989. Therefore, the 1987 version of the Workers' Compensation Act applies. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).

         Under the 1987 law an injured worker who is unable to return to work after reaching maximum medical improvement is required to undergo evaluation by a rehabilitation provider designated either by the insurer or the Department of Labor and Industry.[1] Section 39-71-1011(2), MCA (1987), defines "disabled worker" as a worker "who has a medically determined restriction resulting from a work-related injury that precludes the worker from returning to the job the worker held at the time of the injury." Section 39-71-1014(1), MCA (1987), states, "Rehabilitation services are required for disabled workers. . . ." [Emphasis added.] Section 39-71-1014, MCA, goes on to provide for designation of a rehabilitation provider by either the insurer or the Department of Labor and Industry. Section 39-71-1015, MCA (1987), requires the designated rehabilitation provider to determine if the worker is capable of returning to work and, if so, determine the first appropriate return-to-work option. Those options are set forth in section 39-71-1012, MCA (1987), as follows:

39-71-1012. Rehabilitation goal and options. . . .
(2) The first appropriate option among the following must be chosen ...

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