MARK S. RYCKMAN Petitioner
ASARCO, INCORPORATED Respondent/Insurer.
Submitted: July 27, 2005
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
The respondent, after apparently agreeing to pay the claimant
20% for wage loss pursuant to section 39-71-703(5)(c), MCA
(1997), reneged. The claimant then petitioned the Court for
the benefits. The respondent now moves for summary judgment
with respect to the claimant's request for a 20% award
for wage loss suffered as a result of the claimant's
industrial injury, tendering a perfunctory opinion of its
vocational consultant stating that he had performed a labor
market analysis and determined that the claimant did not
suffer a wage loss.
Summary judgment is denied. The parties did not address
whether the respondent's acceptance of liability for the
20% wage-loss benefits may be rescinded and if so on what
grounds. Moreover, a perfunctory opinion by a vocational
consultant is not conclusive and binding on the Court where
the claimant in fact is earning less after his injury.
Evidence: Expert Testimony: Generally. The
opinion of an expert is not conclusive. A court must
determine what if any weight the opinion is to be given.
Thus, a vocational expert's perfunctory opinion stating
that, based on his labor market analysis, the claimant did
not suffer a wage loss, does not entitle an insurer or
self-insured to summary judgment where the claimant in fact
is earning less than his time-of-injury wage. Since the
claimant's actual earnings provide one basis for
determining wage loss, the claimant need not tender an
opposing expert opinion to avoid summary judgment.
Benefits: Permanent Partial Disability Benefits: Wage
Loss. While section 39-71-116(1), MCA (1997),
provides an alternative measure of wage loss based on the
wages the claimant is "qualified to
earn" after reaching maximum medical improvement, what a
worker is actually earning is typically the best measure of
what he or she is qualified to earn. The "qualified to
earn" standard thus applies in situations where a
claimant is underemployed or fails to seek work.
The petitioner in this matter is seeking permanent partial
disability benefits based on wage loss. The respondent moves
for summary judgment.
The petitioner suffered a work-related injury on July 22,
1998, while working for ASARCO, Incorporated (ASARCO).
ASARCO, which is self-insured, accepted liability for his
In 2004 the claims adjuster apparently agreed to pay the
claimant a 36% permanent partial disability award, which
included 20% for wage loss. § 39-71-703(5)(c), MCA
(1997). According to ASARCO, both parties "assumed"
the claimant suffered a 20% wage loss. However, ASARCO
thereafter had a vocational consultant analyze the
claimant's job market. The consultant concluded that the
claimant is employable at the same or a greater wage than he
was earning at the time of his injury. Based on that
perfunctory opinion, ASARCO revoked its apparent agreement to
pay the 20% for wage loss. The claimant then petitioned the
Court for the benefits.
Summary judgment may be granted only where uncontroverted
material facts demonstrate that the respondent is entitled to
judgment as a matter of law. Lewis v. Nine Mile Mines,
Inc., 268 Mont. 336, 340, 886 P.2d 912, 914 (1994).
Although ASARCO appears to concede that its adjuster agreed
to the 36% award, including 20% for wage loss, it denies that
it entered into an enforceable settlement agreement; alleges
that even if it did so it was based on mutual mistake of fact
and should therefore be rescinded; and asserts that it is
entitled to summary judgment on the merits of the wage-loss
claim since its vocational ...