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Rausch v. Montana State Fund

Court of Workers Compensation of Montana

July 11, 2003

ALEXIS RAUSCH CHARLES FISCH THOMAS FROST Petitioners
v.
MONTANA STATE FUND Respondent/Insurer.

         AFFIRMED 06/07/05

          DECISION AND JUDGMENT RESPECTING REMAINING ISSUES

          MIKE MCCARTER JUDGE.

         Summary: In furtherance of a global claim for common fund attorney fees from all claimants benefitted by the prior Supreme Court decision in this case, claimants' attorneys request the Court to issue a subpoena compelling the Department of Labor and Industry to provide information identifying the benefitted claimants. Both parties also seek a declaratory judgment as to whether permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are entitled to impairment awards.

         Held: (1) Claimants' attorneys are not entitled to global attorney fees with respect to all benefitted claimants, only with respect to claimants of the respondent Montana State Fund. (2) Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards.

         Topics:

         Attorney Fees: Common Fund. Attorneys who establish a precedent are not entitled to common fund fees from all claimants, only from claimants of the respondent insurer. Ruhd v. Liberty Northwest Ins. Corp., 2003 MTWCC 38. Therefore, they are not entitled to subpoena information from the Department of Labor and Industry which identifies all benefitted claimants.

         Benefits: Impairment Awards. Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).

         Benefits: Permanent Total Benefits. Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).

         Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-703(1)(a)(iv), MCA (1987-89). Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991, are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).

         Cases Discussed: Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2003 MT 2003, 311 Mont. 210, 54 P.3rd 25. Permanently totally disabled claimants injured between July 1, 1987 and June 30, 1991 are not entitled to impairment awards. The 1987 and 1989 statutes differ from those construed in Rausch, Fisch, Frost v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3rd 25. The 1987 and 1989 statutes expressly provide for repayment of any impairment award should a worker become permanently totally disabled. § 39-71-703(1)(a)(iv), MCA (1987-89).

         ¶1 The Court has recently issued a final decision and judgment concerning the amount of common fund attorney fees due claimants' attorneys with respect to impairment awards owed by the Montana State Fund to permanently totally disabled (PTD) claimants who were injured after June 30, 1991. The sole remaining issues in this case concern (1) the outstanding request by claimants' attorneys that the Court issue a subpoena compelling the Department of Labor and Industry (Department) to furnish information identifying PTD claimants entitled to impairment awards from other insurers and (2) whether PTD claimants injured between July 1, 1987 and June 30, 1991, are entitled to impairment awards.

         I. Subpoena Request

         ¶2 As a result of the Supreme Court decision in this case, [1] the claimants' attorneys are claiming a lien for common fund attorney fees with respect to all PTD claimants injured since July 1, 1991, who are owed impairment awards. The lien claim extends to not only those claimants insured by the Montana State Fund but to all claimants irrespective of the insurer. I characterize the claim as a "global" one to indicate the comprehensive nature of the claim.

         ¶3 The request for a subpoena was made by letter dated May 20, 2003, and is the first step to enforcing the global lien claimed by claimants' attorneys. Shortly after the request was made, this Court issued a decision and order in Ruhd v. Liberty Northwestern Ins. Corp., 2003 MTWCC 38, holding that common fund attorney fees are limited to claimants of the respondent insurer. In that decision I specifically rejected the global claim for common fund attorney fees. In light of that decision, the attorneys for ...


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