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Ryckman v. Asarco, Inc.

Court of Workers Compensation of Montana

August 24, 2005

MARK S. RYCKMAN Petitioner
v.
ASARCO, INCORPORATED Respondent/Insurer.

          Submitted: July 27, 2005

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          MIKE McCARTER, JUDGE.

         Summary: 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.

         Held: 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 The parties did not address whether the respondent's acceptance of liability for the 20% wage-loss benefits may be rescinded and if so on what grounds.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.

         Topics:

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.

         ¶1 The petitioner in this matter is seeking permanent partial disability benefits based on wage loss. The respondent moves for summary judgment.

         Factual Background

         ¶2 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 claim.

         ¶3 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.

         Discussion

         ¶4 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).

         ¶5 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 ...


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