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Lion v. Montana State Fund

Court of Workers Compensation of Montana

March 2, 2005

JONATHAN LION Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          Submitted: October 28, 2004

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE

         Summary: The claimant successfully completed a rehabilitation plan calling for flight training leading to his certification as a flight instructor and air carrier pilot. When he could not find employment as a pilot, he petitioned the Court for further rehabilitation benefits amounting to approximately $200, 000 to allow him to gain more flying time so he could primarily seek flying contracts with the State of Montana and United States Forest Service.

         Held: The request for additional benefits under section 39-71-2001, MCA (1991), is denied since (1) only one rehabilitation plan is allowed and the original plan was completed; (2) the additional benefits would exceed the 104-week limitation imposed by the section; (3) the new plan has not been certified as reasonable by any vocational provider; and (4) the claimant has not proven to the satisfaction of the Court that the new plan would result in a reasonable prospect of regular employment. Any one of the grounds is a sufficient basis for denial.

         Topics:

Benefits: Rehabilitation Benefits: Rehabilitation Plans. Under section 39-71-2001, MCA (1991), the claimant is entitled to only one rehabilitation plan. Where a plan has been adopted and completed, the claimant is not entitled to further rehabilitation benefits.
Benefits: Rehabilitation Benefits: Rehabilitation Plans. Under section 39-71-2001, MCA (1991), rehabilitation benefits and plans are limited to a total of 104 weeks in duration.
Benefits: Rehabilitation Benefits: Rehabilitation Plans. Under section 39-71-2001, MCA (1991), a prerequisite to rehabilitation benefits is certification by a vocational consultant that there is a reasonable prospect that the rehabilitation plan will lead to regular employment.
Benefits: Rehabilitation Benefits: Rehabilitation Plans. Where the claimant's request for a particular plan has been refused, upon a petition for a Court order approving the plan, the claimant must prove that the plan will result in a reasonable prospect of regular employment.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2001, MCA (1991). Under section 39-71-2001, MCA (1991), rehabilitation benefits and plans are limited to a total of 104 weeks in duration.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2001, MCA (1991). Under section 39-71-2001, MCA (1991), the claimant is entitled to only one rehabilitation plan. Where a plan has been adopted and completed, the claimant is not entitled to further rehabilitation benefits.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2001, MCA (1991). Under section 39-71-2001, MCA (1991), a prerequisite to rehabilitation benefits is certification by a vocational consultant that there is a reasonable prospect that the rehabilitation plan will lead to regular employment.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-2001, MCA (1991). Where the claimant's request for a particular plan has been refused, upon a petition for a Court order approving the plan, the claimant must prove that the plan will result in a reasonable prospect of regular employment.

         ¶1 The trial in this matter was held in Missoula, Montana on October 28, 2004. The petitioner was present and represented by Ms. Laurie Wallace. The respondent was represented by Mr. Thomas E. Martello.

         ¶2 Exhibits: Exhibits 1 through 5 were admitted without objection.

         ¶3 Witnesses and Depositions: The petitioner and April Pulfrey testified. In addition, the parties submitted the depositions of Jonathan Lion (petitioner), Delbert Schwaderer, Wendy Ross Beye, Deborah Peterson, and Jerry Davis for the Court's consideration.

         ¶4 Issues Presented: The issues, as stated by the parties in the Pretrial Order are as follows:

¶4a Whether Petitioner is entitled to additional vocational rehabilitation benefits in compliance with the Vocational Rehabilitation Plan.
¶4b Whether Petitioner is entitled to payment of past due rehabilitation and auxiliary benefits.
¶4c Whether Petitioner is entitled to a 20% increase of award for unreasonable refusal to pay reasonable vocational rehabilitation benefits pursuant to section 39-71-2907, MCA.
¶4d Whether Petitioner is entitled to reasonable attorney fees and costs pursuant to section 39-71-611 and/or -612, MCA.

(Pretrial Order at 3-4.)

         ¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS ...


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