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Lanz v. Liberty Northwest Insurance Corp.

Court of Workers Compensation of Montana

April 29, 2005

KAREN LANZ Petitioner
v.
LIBERTY NORTHWEST INSURANCE CORPORATION Respondent/Insurerand BOZEMAN DEACONESS HEALTH SERVICES Employer.

          Submitted: April 21, 2005

          ORDER DENYING MOTION FOR JUDGMENT ON THE PLEADINGS

          Mike McCarter, Judge.

         Summary: Respondent employer moves for judgment on the pleadings with respect to a re-employment preference claim, urging that the preference applies only to injuries and not to occupational diseases.

         Held: The motion is denied where the petition, construed most favorably to the petitioner, alleges a workers' compensation injury.

         Topics:

Pretrial Procedure: Judgment on the Pleadings. For purposes of a motion for judgment on the pleadings, the facts alleged in the petition are construed in a light most favorable to the petitioner and deemed true.
Re-employment Preference. The re-employment preferences, section 39-71-317, MCA (1999), do not apply to occupational diseases.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-317, MCA (1999). The re-employment preferences, section 39-71-317, MCA (1999), do not apply to occupational diseases.

         ¶1 The petitioner seeks back wages from her employer, Bozeman Deaconess Health Services (Bozeman Deaconess), on account of its alleged failure to give her an employment preference pursuant to section 39-71-317, MCA (1999).[1] In the alternative, the petitioner alleges that she is permanently totally disabled and seeks permanent total disability benefits from Bozeman Deaconess' insurer, Liberty Northwest Insurance Corporation (Liberty Northwest). Bozeman Deaconess moves for judgment on the pleadings with respect to the claim against it.

         Employment Preference Statute

         ¶2 The employment preference is found in section 39-71-317, MCA (1999), which provides in relevant part:

(2) When an injured worker is capable of returning to work within 2 years from the date of injury and has received a medical release to return to work, the worker must be given a preference over other applicants for a comparable position that becomes vacant if the position is consistent with the worker's physical condition and vocational abilities.
(3) This preference applies only to employment with the employer for whom the employee was working at the time the injury occurred.

ยง 39-71-317, MCA (1999). The Workers' Compensation Court has exclusive jurisdiction over disputes concerning the ...


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