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Gates v. Liberty Northwest Insurance Co.

Court of Workers Compensation of Montana

February 13, 1996

JAN GATES Petitioner
v.
LIBERTY NORTHWEST INSURANCE COMPANY Respondent/Insurer for DARBY LUMBER Employer.

          ORDERCLARIFYING DECISION

          Mike McCarter Judge

         Summary: Insurer requested clarification of decision (12/29/95) regarding (1) geographical labor market, (2) entitlement to eight weeks of benefits where she medically able to return to time-of-injury job but job is no longer available, (3) triggering event for rehab benefits, and (4) timing of rehab benefits.

         Held: (1) WCC refused to adopt bright-line rule that geographical area within 50 miles constituted any claimant's labor market. Each case must be decided on its own facts. (2) Prior WCC conclusion that worker unable to return to time-of-injury job was entitled to at least 8 weeks of rehabilitation benefits applied only to worker who is unable to return to the job on account of his injury. (3) Designation of a vocational rehabilitation provider under section 39-71-2001, MCA (1993) does not necessarily mean particular benefits will flow to claimant, but is the first step necessary if there is "a dispute as to whether an injured worker can return to the job the worker held at the time of injury." (4) Payment of rehabilitation benefits commences after filing of the rehabilitation plan with the DOL.

         Topics:

Constitutions, Statutes, Regulations and Rules: Section 39-71-2001, MCA (1993).Designation of a vocational rehabilitation provider under section 39-71-2001, MCA (1993) does not necessarily mean particular benefits will flow to claimant, but is the first step necessary if there is "a dispute as to whether an injured worker can return to the job the worker held at the time of injury." Payment of rehabilitation benefits commences after filing of the rehabilitation plan with the DOL.
Benefits: Rehabilitation Benefits: Generally. Prior WCC conclusion that worker unable to return to time-of-injury job was entitled to at least 8 weeks of rehabilitation benefits applied only to worker who is unable to return to the job on account of his injury.
Benefits: Rehabilitation Benefits: Generally. Designation of a vocational rehabilitation provider under section 39-71-2001, MCA (1993) does not necessarily mean particular benefits will flow to claimant, but is the first step necessary if there is "a dispute as to whether an injured worker can return to the job the worker held at the time of injury." Payment of rehabilitation benefits commences after filing of the rehabilitation plan with the DOL.
Vocational -- Return to Work Matters: Labor Market. WCC refused to adopt bright-line rule that geographical area within 50 miles constituted any claimant's labor market. Each case must be decided on its own facts. Here, applying section 39-71-703, MCA (1993), Missoula was outside labor market of claimant residing south of Connor, Montana, approximately 80 miles south of Missoula. See also order of 12/29/95 in same case.
Wages: Wage Loss. The WCC will not adopt a bright line rule defining a claimant's geographical labor market for assessing permanent partial disability benefit entitlement. While the Court found Missoula, which is eighty miles from claimant's home, to be outside this particular claimant's geographical labor, each case must turn on its own facts, including consideration not only of distance in miles, but possibly also such matters as ease of travel in winter and claimant's available transportation.
Benefits: Rehabilitation Benefits: Retraining. Section 39-71-2001(3), MCA (1993), which requires that a worker unable to return to his time-of-injury job be provided eight weeks of rehabilitation benefits at a minimum, applies only when the worker cannot perform the job, not to situations where the worker is able to perform the job but it has been eliminated or filled by someone else.
Benefits: Rehabilitation Benefits: Rehabilitation Plans. Section 39-71-2001(3), MCA (1993), which requires that a worker unable to return to his time-of-injury job be provided eight weeks of rehabilitation benefits at a minimum, applies only when the worker cannot perform the job, not to situations where the worker is able to perform the job but it has been eliminated or filled by someone else.
Benefits: Rehabilitation Benefits: Rehabilitation Providers. While section 39-71-2001, MCA (1993), requires that a rehabilitation provider be designated if there is a dispute over whether the injured worker can return to the time-of-injury job, the designation of a provider does not answer the question whether other rehabilitation benefits are due.
Benefits: Rehabilitation Benefits: Generally. Under section 39-71-2001(2), MCA (1993), entitlement to rehabilitation benefits commences after a rehabilitation plan is filed with the department.

         On December 29, 1995, this Court entered its Findings of Fact, Conclusions of Law and Judgment in this case. Respondent, Liberty Northwest Insurance Group, thereafter submitted a timely Petition for New Trial or Alternatively Request for Amendment of Findings of Fact and Conclusions of Law, wherein it asks the Court to clarify four areas of its original decision.

         Discussion

         The matters Liberty wishes clarified are: (1) the geographical labor market for purposes of determining permanent partial disability benefits; (2) a claimant's entitlement, if any, to eight weeks of benefits where he or she is able to return to the time-of-injury job but the job has been eliminated or filled by someone else; (3) the triggering event for purposes of rehabilitation benefits; and (4) the timing of rehabilitation benefits. Petitioner, Jan Gates, does not object to the Court addressing the last three of Liberty's concerns.

         Petitioner contends that the requested geographical clarification is beyond the scope of issues raised by the facts of this particular case, and that the Court's adoption of Liberty's proposed rule would amount to an advisory opinion. Advisory opinions are, of course, verboten. State ex rel. Fletcher v. District Court, 260 Mont. 410, 419, 859 P.2d 992, 997 (1993). On the other hand, this case involves a concrete controversy and the Court is obliged, to the extent practicable and within the confines of the issues of the case, to speak in a clear and precise manner ...


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