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Jones v. Reliance National Indemnity Co.

Court of Workers Compensation of Montana

December 17, 1997

FRANK R. JONES Petitioner
v.
RELIANCE NATIONAL INDEMNITY COMPANY Respondent/Insurer for RHONE-POULENC, aka STAUFFER CHEMICAL Employer.

          Submitted: December 12, 1997

          ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

          MIKE MCCARTER, JUDGE

         Summary: Citing Mogus v. Reliance National Indemnity Ins. Co., WCC No. 9705-7749, in which this Court ruled that a permanently totally disabled claimant is not entitled to permanent partial disability benefits, the insurer moved for summary judgment. Claimant argued that he is not in fact permanently totally disabled and that the insurer merely decided to categorize him as permanently totally disabled. He wishes to pursue permanent partial disability benefits.

         Held: Where the only undisputed evidence before the Court on permanent total disability status is the fact that claimant has been so characterized by the insurer, the summary judgment motion must be denied. The insurer is not precluded, however, from attempting to prove at trial that claimant is permanently totally disabled, in order to argue that Mogus applies.

         Topics:

Benefits: Permanent Partial Benefits: Generally. Citing Mogus v. Reliance National Indemnity Ins. Co., WCC No. 9705-7749, in which this Court ruled that a permanently totally disabled claimant is not entitled to permanent partial disability benefits, the insurer moved for summary judgment. Claimant argued he is not in fact permanently totally disabled. Where the only undisputed evidence before the Court on permanent total disability status is the fact that claimant has been so characterized by the insurer, the summary judgment motion must be denied. The insurer is not precluded, however, from attempting to prove at trial that claimant is in fact permanently totally disabled, in order to argue that Mogus applies.
Benefits: Permanent Total Benefits: Generally. Citing Mogus v. Reliance National Indemnity Ins. Co., WCC No. 9705-7749, in which this Court ruled that a permanently totally disabled claimant is not entitled to permanent partial disability benefits, the insurer moved for summary judgment. Claimant argued he is not in fact permanently totally disabled. Where the only undisputed evidence before the Court on permanent total disability status is the fact that claimant has been so characterized by the insurer, the summary judgment motion must be denied. The insurer is not precluded, however, from attempting to prove at trial that claimant is in fact permanently totally disabled, in order to argue that Mogus applies.

         Petitioner in this matter seeks permanent partial disability benefits with respect to several injuries, the latest of which occurred on August 24, 1991. Respondent moves for partial summary judgment with respect to the 1991 claim.

         Legal Predicate for Motion

         The motion is predicated on this Court's recent ruling that a permanently totally disabled claimant is not entitled to permanent partial disability benefits. Mogus v. Reliance National Indemnity Ins. Co., WCC No. 9705-7749 (October 24, 1997). That holding was based on the 1991 version of the Workers' Compensation Act, which is the same version applicable in this case.

         Under the 1991 Act, eligibility for permanent partial disability benefits requires proof that the "injured worker suffers a permanent partial disability," § 39-71-703(1), MCA (1991).[1] Permanent partial disability is defined as a condition which results in a medically determined physical restriction as a result of the injury but which does not preclude the worker from returning "to work in some capacity." § 39-71-116(15), MCA (1991).[2] The claimant in Mogus alleged, and respondent admitted, that he was permanently totally disabled. He sought permanent partial disability benefits only after he reached age 65 and his permanent total benefits were discontinued. Since claimant admitted he was permanently totally disabled, I found that he was not "able to return to work in some capacity." Therefore, he did not meet the definition of permanent partial disability and was not entitled to permanent partial disability benefits.[3]

         Factual Background and Arguments

         In this case, it is the respondent who alleges that the claimant is permanently totally disabled. The petition does not allege that claimant is in fact permanently partially disabled, it alleges only that the claimant was "receiving" permanent partial disability benefits prior to reaching age 65. Petition for Hearing ¶ VII.

         Pursuant to this Court's rule regarding submission of summary judgment motions, ARM 24.5.329(3), respondent set out ...


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