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Torgerson v. Transportation Ins. Co.

Court of Workers Compensation of Montana

August 26, 2013

MARLENE TORGERSON, as Personal Representative of the Estate of Richard Torgerson Petitioner
v.
TRANSPORTATION INS. CO. Respondent/Insurer.

Submitted: August 20, 2013

Summary: Respondent moved for summary judgment, arguing that it is not liable for payment of an impairment award to a claimant who died from unrelated causes after reaching MMI but prior to a physician issuing an impairment rating for his occupational disease. Petitioner filed a cross-motion for summary judgment, arguing that the claimant's right to this benefit accrued at the time he reached MMI and that it is therefore payable to his estate.

Held: Under the applicable case law, a claimant's right to an impairment award accrues at the time the claimant reaches MMI, even though a physician must subsequently issue an impairment rating in order to determine the precise value of the entitlement. In the present case, the claimant's right to an impairment award accrued when he reached MMI, even though the claimant died prior to the issuance of an impairment rating. Therefore, his estate is entitled to receive payment of the impairment award from Respondent.

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

JAMES JEREMIAH SHEA JUDGE

¶ 1 Respondent Transportation Ins. Co. (Transportation) moves this Court for summary judgment in its favor with respect to Petitioner Marlene Torgerson's claim for payment of a 45% impairment award to the Estate of Richard Torgerson.[1]Transportation argues that Torgerson's estate is not entitled to payment of this impairment award because the award had not accrued at the time of Torgerson's death.[2] Torgerson objects to Respondent's motion and has filed a cross-motion for summary judgment on this issue, arguing that Torgerson's entitlement to this impairment award had accrued at the time of his death.[3]

¶ 2 On August 19, 2013, Transportation filed an affidavit from Dr. Dana Headapohl.[4]On August 20, 2013, the parties presented oral argument to the Court on their respective motions.[5]

Undisputed Facts[6]

¶ 3 Torgerson allegedly sustained an asbestos-related disease while employed by Burns International Security Services Corp. (Burns).[7]

¶ 4 Torgerson last worked for Burns on October 6, 1989.[8]

¶ 5 Torgerson was diagnosed with asbestos-related disease on March 8, 2001.[9]

¶ 6 On August 16, 2012, Torgerson died from cancer unrelated to his asbestos-related disease.[10]

¶ 7 On November 8, 2012, Alan C. Whitehouse, M.D., gave Torgerson a 45% impairment rating.[11]

ΒΆ 8 On May 28, 2013, Torgerson's estate filed the present claim, seeking payment of permanent partial disability (PPD) benefits in ...


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