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Johnson v. Liberty N.W. Ins. Corp.

Court of Workers Compensation of Montana

August 5, 2013

RAYMOND JOHNSON Petitioner
v.
LIBERTY N.W. INS. CORP. Respondent/Insurer.

Submitted: July 29, 2013

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PETITIONER

JAMES JEREMIAH SHEA JUDGE

Summary: Upon order of the Court, the parties simultaneously moved for summary judgment on the issue of whether the 5th or 6th Edition of the AMA Guides applies for purposes of calculating Petitioner's impairment rating.

Held: The 1999 version of the Workers' Compensation Act applies to Petitioner's claim because that was the version in effect on Petitioner's last day of work. Under the 1999 statutes, the correct edition of the AMA Guides to apply is that which was current on the date the injured worker reached MMI. Since Petitioner reached MMI on April 16, 2001, the 5th Edition applies for his impairment rating. Summary judgment on this issue is granted in favor of Petitioner.

¶ 1 On July 19, 2013, Petitioner Raymond Johnson and Respondent Liberty N.W. Ins. Corp. (Liberty), filed simultaneous motions for summary judgment and briefs in support on the issue of whether the 5th or 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment[1] applies to a determination of Johnson's impairment rating.[2]

Stipulated Facts[3]

¶ 2 On April 16, 2001, Johnson was diagnosed with asbestos-related disease (ARD).

¶ 3 Since a claimant diagnosed with ARD is considered to be at maximum medical improvement (MMI) on the date of diagnosis, [4] Johnson achieved MMI on April 16, 2001.

¶ 4 On August 31, 2001, Johnson ceased working for his time-of-injury employer.[5]

¶ 5 On December 15, 2003, Alan C. Whitehouse, M.D., issued a 25% impairment rating calculated using the 5th Edition.

¶ 6 On February 2, 2009, this Court found Liberty liable for Johnson's occupational disease.[6]

¶ 7 On August 21, 2009, Liberty paid Johnson a 25% impairment award.

¶ 8 Between December 5 and 11, 2012, Dr. Whitehouse issued a 50% impairment rating calculated using the 5th Edition. Liberty denied payment of this impairment ...


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