Submitted: June 23, 2011
ORDER DENYING PETITIONER'S APPEAL AND AFFIRMING DEPARTMENT DECISION
JAMES JEREMIAH SHEA, JUDGE.
Petitioner appealed from a Department decision denying it summary judgment on the issue of whether it was entitled to reimbursement from Respondent in a case where an employee who was certified as vocationally handicapped suffered a subsequent injury. The Department held that the employer had failed to fulfill its affirmative duty to comply with § 39-71-906, MCA.
Although Petitioner urges this Court to conclude that Respondent had an affirmative duty to contact the employer and request that the employer comply with § 39-71-906, MCA, the language of the statute does not support such a reading. The decision of the Department's hearing officer is affirmed.
¶ 1 Petitioner Montana Insurance Guaranty Association (MIGA) appeals from a September 22, 2010, decision of the Department of Labor and Industry (Department), in which the Department denied MIGA's motion for summary judgment against Respondent Montana Subsequent Injury Fund (SIF).
¶ 2 MIGA asserts on appeal that, based on the undisputed facts of this case and an appropriate interpretation of § 39-71-906, MCA, it is entitled to reimbursement because the Department erred as a matter of law by imposing obligations upon the employer that are not required by statute.
JOINT STATEMENT OF UNCONTESTED FACTS
¶ 3 On January 4, 1993, Douglas Dodge sustained an industrial injury arising out of and in the course of his employment with Town Pump. Town Pump's workers' compensation insurer accepted liability for Dodge's injury. At the time of his injury, Dodge worked as a Project Manager. His position required some physical activity in the field but consisted primarily of office work.
¶ 4 On January 30, 1995, Dodge returned to work. He was initially restricted to a four-hour shift.
¶ 5 On June 4, 1996, Dodge reached maximum medical improvement (MMI) and was released to return to full-time employment at Town Pump, with a lifting restriction of thirty pounds. Dodge later returned to a modified, full-time position with Town Pump that was consistent with his permanent lifting restrictions.
¶ 6 As of June 4, 1996, Dodge was no longer eligible for temporary partial disability (TPD) benefits. However, Dodge had a permanent partial disability (PPD) entitlement with a fifteen percent whole person impairment award and a permanent lifting restriction.
¶ 7 On September 4, 1996, the parties settled Dodge's PPD entitlement.
¶ 8 On September 23, 1996, Dodge applied for certification as vocationally handicapped with SIF, citing that lifting restrictions for his lower back injury could make it difficult to find future employment. Dodge listed Town Pump as his current/permanent employer on the application and noted that he currently worked in a modified office management position to accommodate his impairment.
¶ 9 On October 28, 1996, the Department sent Dodge a letter, certifying him as vocationally handicapped with SIF. In the certification letter, the Department notified Dodge that he must present his certification card to prospective employers. The letter also provided, "[E]mployers are required to file the attached form with the Division within 60 days of hiring or rehiring." This is the only known correspondence sent by ...