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LaFountain v. Montana State Fund

Court of Workers Compensation of Montana

September 30, 2008

RONALD D. LaFOUNTAIN Petitioner,
v.
MONTANA STATE FUND Respondent.

         Bench Ruling

          For the Petitioner: Ronald D. LaFountain Pro Se

          For the Respondent: William Dean Blackaby Special Assistant Attorney General

          Also Present: Wayne Bunch, Claims Adjuster

          BEFORE THE HONORABLE JAMES JEREMIAH SHEA

The conference call in the above-entitled matter was held on Tuesday, September 30, 2008, at 10:00 a.m., at the Workers' Compensation Court, Helena, Montana.

         BE IT REMEMBERED that on Tuesday, September 30, 2008, in Helena, Montana, before the Honorable James Jeremiah Shea, Workers' Compensation Judge, the following proceedings were had and testimony was taken telephonically:

         THE COURT: Okay, thanks, everyone. We are on the record in the matter of Mr. LaFountain versus Montana State Fund, Cause No. 2008-2100. This is the time that I have scheduled to issue an oral bench ruling in accordance with ARM 24.5.335.

         Mr. LaFountain, I'm going to issue my ruling. I want to make sure, if you have any questions when I am done, I'm going to give you the chance to ask those then, and I will answer them as best I can, okay?

         MR. LaFOUNTAIN: Yep.

         THE COURT: Okay. Three issues were present for my decision in this case, and they are: One, is the petitioner entitled to authorization of bi-level artificial disc replacement surgery at the Stenum Hospital in Bremen, Germany; Two, is the petitioner entitled to an increase in his disability rate to $1, 610 per week for all temporary total and permanent partial disability benefits; and Three, is petitioner entitled to a penalty against respondent?

         Taking the issue of Mr. LaFountain's disability rate first, I have concluded that he has not prevailed on this issue. As a matter of law, Mr. LaFountain cannot be entitled to temporary total disability or permanent partial disability weekly benefits in this amount. The maximum weekly benefit available to injured workers in Montana is set by statute. The statutory authority is found in Section 39-71-701 (3) per TTD benefits, and Section 39-71-703 (6) for PPD benefits.

         Section 39-71-701 (3) states that the maximum weekly TTD benefits awarded may not exceed the state's average weekly wage at the time of injury. Section 39-71-703(6) states that the weekly benefit rate for PPD may not exceed one-half of the state's average weekly wage.

         At the time of Mr. LaFountain's September 2002 industrial injury, the maximum weekly TTD award was $473 per week, and the maximum PPD award was $236.50 per week. Therefore, whether or not Mr. LaFountain was earning significantly higher wages at the time ...


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