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Lynn Gerber v. Montana State Fund

March 28, 2013

LYNN GERBER
PETITIONER
v.
MONTANA STATE FUND RESPONDENT/INSURER.



The opinion of the court was delivered by: James Jeremiah Shea Judge

ORDER DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT AND GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

Summary: Petitioner moves for summary judgment, alleging that since Respondent accepted liability for his injury, he was entitled to additional benefits under § 39-71-703, MCA, notwithstanding his incarceration for more than 30 days. Petitioner further alleges that Respondent's interpretation of § 39-71-744, MCA, in denying him additional permanent partial disability benefits is in error and if not, then the statute is unconstitutional for violating his equal protection and due process rights. Respondent's Cross-Motion for Summary Judgment counters that § 39-71-744, MCA, is plain and unambiguous and is intended to deny disability benefits to any injured worker who is incarcerated for more than 30 days, and that the statute has been previously found to be rationally related to a legitimate governmental purpose.

Held: Section 39-71-744, MCA, is plain and unambiguous and is clearly intended to deny disability benefits, including permanent partial disability benefits, to an injured worker during the period of the worker's incarceration of more than 30 days. This Court found previously in Wimberley and McCuin that § 39-71-744, MCA, was constitutional, and the statute is also rationally related to the legislated objectives of the Workers' Compensation Act. Petitioner fails to make a compelling argument that this Court's earlier decisions were wrong and should be revisited.

¶ 1 Petitioner Lynn Gerber filed a petition with this Court, alleging that Respondent Montana State Fund (State Fund) wrongfully withheld the remainder of his permanent partial disability (PPD) benefits under § 39-71-703, MCA, on the grounds that, pursuant to § 39-71-744, MCA, he was incarcerated for more than 30 days and therefore is not eligible to receive disability benefits during the period of his imprisonment.

¶ 2 Gerber moves for summary judgment in his favor based on a joint statement of Stipulated Facts.

¶ 3 State Fund opposes Gerber's motion and files its own Cross-Motion for Summary Judgment based on the parties' Stipulated Facts.

¶ 4 For the reasons set forth below, Gerber's motion is denied and State Fund's motion is granted.

STIPULATED FACTS*fn1

¶ 5 On August 21, 2008, Gerber injured his right shoulder while in the course and scope of his employment with Vann's, Inc., in Missoula County, Montana.*fn2

¶ 6 At the time of his injury, Gerber's employer was enrolled under Compensation Plan 3 of the Workers' Compensation Act and its insurer was State Fund.

¶ 7 State Fund accepted liability for Gerber's claim and has paid indemnity and medical benefits. Liability for the claim has never been in dispute.

¶ 8 On April 9, 2010, State Fund notified Gerber that he was entitled to an impairment award based on a 3 percent impairment rating equal to 11.25 weeks pursuant to § 39-71-703, MCA. Because 7 weeks had already passed since Gerber reached maximum medical improvement (MMI), the letter indicated he was due $1,947.12. The remaining 4.25 weeks could either be paid in biweekly payments until May 11, 2010, or he could request a lump sum payment reduced to present value.*fn3

¶ 9 By letter dated May 21, 2010, State Fund notified Gerber that his 3 percent impairment award had been paid in full, and he was entitled to an additional 48.75 weeks of PPD benefits as of May 12, 2010, due to the other factors enumerated in § 39- 71-703, MCA. The letter offered Gerber the option of settling his claim and receiving the remaining weeks in a lump sum, discounted to present value, or having them paid biweekly.*fn4

¶ 10 By letter dated January 12, 2011, State Fund notified Gerber that his PPD benefits would be terminated pursuant to § 39-71-744, MCA, as of December 28, 2010, because of Gerber's December 8, 2010, incarceration, and that State Fund would take credit for PPD benefits payable through "April 17, 2010" (sic).*fn5

¶ 11 As a result of the application of § 39-71-744, MCA, to Gerber's PPD benefits, State Fund did not pay Gerber his final 15.75 weeks of PPD benefits, which amounts to $4,381.02.*fn6

¶ 12 On September 22, 2010, Gerber pled guilty to the offense of theft by embezzlement in State v. Lynn Dean Gerber, Cause No. DC-32-2009-480-IN, Montana Fourth Judicial District Court, Missoula County. On December 8, 2010, Gerber was sentenced in that case to financial assessments, fees, and fines.

¶ 13 On September 22, 2010, Gerber pled guilty to two felony offenses in State v. Lynn Dean Gerber, Cause No. DC-32-2009-80-IN, Montana Fourth Judicial District Court, Missoula County. On December 8, 2010, Gerber was sentenced by the Hon. John Warner in that case to imprisonment for 20 years with 10 years suspended, together with financial assessments, fees, and fines.

¶ 14 Transcripts of the aforementioned sentencing hearings and judgments in the criminal cases involving Gerber do not contain any notification to Gerber that his workers' compensation indemnity benefits would be adversely affected by the imposition of sentences.

ANALYSIS AND DECISION

¶ 15 Summary judgment is appropriate "when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."*fn7 The material facts necessary for disposition of this case are not in dispute. Therefore, this case is appropriate for summary disposition.

¶ 16 This case is governed by the 2007 version of the Montana Workers' Compensation Act (WCA) since that was the law in effect at the time of Gerber's injury.*fn8

¶ 17 Gerber maintains that he is entitled to the remaining, unpaid PPD benefits, specifically, 15.75 weeks amounting to $4,381.02; State Fund counters that Gerber is not entitled to further PPD benefits since he has been incarcerated for more than 30 days and in accordance with § 39-71-744, MCA, he is ineligible to receive disability benefits while imprisoned.

¶ 18 Permanent partial disability is defined in § 39-71-116(24), MCA:

(24) "Permanent partial disability" means a physical condition in which a worker, after ...


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