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Hensley v. Montana State Fund

Court of Workers Compensation of Montana

August 22, 2019

SUSAN HENSLEY Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          Submitted: February 17, 2015

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

          DAVID M. SANDLER JUDGE.

         Summary: Upon reaching MMI for her shoulder injury, Petitioner returned to work without an actual wage loss. She received a 4% whole person impairment rating, which is a Class 1 impairment under the AMA Guides, 6th Ed. Respondent did not pay her an impairment award because § 39-71-703(2), MCA (2011), does not provide for the payment of impairment awards if an injured worker's impairment is rated as a Class 1 impairment and the worker suffers no actual wage loss. Because this statute provides that an injured worker with a Class 2, 3, or 4 impairment without a wage loss has a right to an impairment award, Petitioner asserts it is facially unconstitutional under the equal protection clause in Mont. Const. art. II, § 4. Petitioner also asserts that by denying her a remedy for her permanent injury, § 39-71-703(2), MCA (2011), violates her right to due process under Mont. Const. art. II, § 17.

         Held: Section 39-71-703(2), MCA (2011), is not facially unconstitutional under the equal protection clause because a claimant with a Class 1 impairment rating is not similarly situated to a claimant with a Class 2, 3, or 4 impairment rating due to the difference in the severity and frequency of their symptoms and functional limitations. And, nevertheless, there is a rational basis for treating these classes differently. This Court does not address Petitioner's due process claim because this Court cannot grant her the remedy she seeks, which is payment of an impairment award.

         ¶1 Petitioner Susan Hensley challenges Respondent Montana State Fund's (State Fund) denial of liability for an impairment award under § 39-71-703(2), MCA (2011), which provides that a claimant with a Class 1 impairment under the AMA Guides, 6th Ed. and no wage loss, is not entitled to an impairment award while a claimant with a Class 2, 3, or 4 impairment and no wage loss is entitled to an impairment award. Hensley asserts that this provision violates her right to equal protection under Mont. Const. art. II, § 4, and her right to due process under Mont. Const. art. II, § 17. State Fund asserts that under the entire framework of the 2011 Workers' Compensation Act (WCA), § 39-71-703, MCA, is constitutional. For the reasons that follow, this Court agrees with State Fund and grants its summary judgment motion and denies Hensley's summary judgment motion.

         History of Montana's Reliance upon the Guides to the Evaluation of Permanent Impairment to Calculate Impairment Awards

         ¶2 As part of the 1987 reforms to the WCA, the Legislature provided for an impairment award, [1] which was based on the whole person impairment rating under the "current edition of the Guides to Evaluation of Permanent Impairment published by the American Medical Association, "[2] (the Guides), a book that provides physicians with a method to rate the level of impairment an injury or disease has caused a person. At the time, the "current edition" of the Guides was the 2nd edition. The level of impairment is expressed as a percentage, which is deemed the "whole person impairment" rating.

         ¶3 The AMA Guides, 5th Ed., which was the current edition of the Guides from 2000 to 2008, defines "impairment" as: the "loss, loss of use, or derangement of any body part, organ system, or organ function."[3] The AMA Guides, 5th Ed., defines "impairment percentages or ratings" as, "[c]onsensus-derived estimates that reflect the severity of the impairment and the degree to which the impairment decreases an individual's ability to perform common activities of daily living . . . ."[4] The AMA Guides, 5th Ed., defines "whole person impairment," as "[p]ercentages that estimate the impact of the impairment on the individual's overall ability to perform activities of daily living, excluding work."[5]

         ¶4 Under § 39-71-703 and -711, MCA (1987-2009), a physician would assign a whole person impairment rating under the current edition of the Guides when a claimant reached maximum medical improvement (MMI), the "point in the healing process when further material improvement would not be reasonably expected from primary medical treatment."[6] The amount of the claimant's impairment award was calculated by taking the claimant's whole person impairment rating, which is expressed in terms of a percentage, and multiplying it by the maximum number of weeks for permanent partial disability (PPD) benefits, as set forth in the applicable version of § 39-71-703, MCA, for the claimant's date of injury, and then multiplying the number of weeks by the claimant's PPD rate. The product was the monetary value of the claimant's impairment award. For example, a claimant who had a 4% whole person impairment rating under the 2009 WCA, with the maximum PPD rate of $302 for Fiscal Year 2009, had the right to an impairment award in the amount of $4, 530.[7]

         ¶5 The Montana Supreme Court has explained that the purpose of an impairment award is to compensate the injured worker for a loss of function to her body:

Impairments awards are based on a worker's impairment rating, which is a purely medical determination of the loss of physical function of the body caused by the injury. § 39-71-711, MCA (1991 and 1997). The impairment rating is the physical component on which the disability is based. Disability benefits compensate the worker for losses related to their inability to work. An impairment award is paid to compensate the worker for the loss of physical function of his or her body, which may have ramifications beyond just the workers' ability to return to work.[8]

         ¶6 Under the WCA from 1987 through 2009, an injured worker who could return to regular employment who received a whole person impairment rating had the right to an impairment award, even if she did not suffer an actual wage loss.[9] For example, § 39-71-703(2), MCA (2009), states:

When a worker receives an impairment rating as the result of a compensable injury and has no actual wage loss as a result of the injury, the worker is eligible for an impairment award only.

         ¶7 In 2008, the American Medical Association published the AMA Guides, 6th Ed.[10]Under § 39-71-711(1)(b), MCA (2007-2009) - which provides that impairment rates "must be based on the current edition of the Guides to Evaluation of Permanent Impairment published by the American medical association" - the AMA Guides, 6th Ed., became the standard to use when calculating a claimant's impairment rating for claimants who reached MMI after the date of publication.[11]

         ¶8 The AMA Guides, 6th Ed.'s, definitions of "impairment," "impairment rating," and "whole person impairment" are similar to those in the AMA Guides, 5th Ed. The AMA Guides, 6th Ed., defines "impairment" as:

A significant deviation, loss, or loss of use of any body structure or function in an individual with a health condition, disorder, or disease.[12]

         The AMA Guides, 6th Ed., defines "impairment rating" as:

Consensus-derived percentage estimate of loss of activity, which reflects severity of impairment for a given health condition, and the [degree] of associated limitations in term[s] of Activities of Daily Living (ADLs).[13]

         And, the AMA Guides, 6th Ed., defines "whole person impairment" as:

Percentages that estimate the impact of the impairment on the individual's overall ability to perform Activities of Daily Living, excluding work.[14]

         The AMA Guides, 6th Ed., explains, "The whole person impairment is a percentage based on a consensus of opinion from multidisciplinary medical specialties and cumulative experience. The whole person impairment rating ranges from normal (0%) to totally dependent on others for care (90%) to approaching death (100%).[15]

         ¶9 Unlike the earlier editions, the AMA Guides, 6th Ed., contains "Impairment Classification Grids," under which whole person impairments are placed into one of five classes based upon the severity of the person's loss of function for the condition at issue. The goal of the classification system is to "yield maximal internal consistency of impairment ratings across organ systems."[16]

         ¶10 Table 1-5 in the 6th edition is the "Generic Template for Impairment Classification Grids," which is the format used throughout the AMA Guides, 6th Ed., for the classification system. A copy of this table is attached as Appendix A.

         ¶11 In this table, the lowest class in the Impairment Classification Grids is Class 0, which includes those who are asymptomatic, or who have "intermittent symptoms that do not require treatment." A person assigned a Class 0 impairment will have a 0% whole person impairment rating.

         ¶12 In terms of increased severity of the impairment, the next class is Class 1. A person with a Class 1 impairment will have "[s]ymptoms controlled with continuous treatment" or "intermittent, mild symptoms despite continuous treatment." On physical examination, a person with a Class 1 impairment will have "[p]hysical findings not present with continuous treatment" or "intermittent, mild physical findings." A person with a Class 1 impairment will either have no objective evidence of injury or "intermittent mild abnormalities." For a musculoskeletal injury, a person with a Class 1 impairment will have "[p]ain/symptoms with strenuous/vigorous activity" and be "[a]ble to perform self-care activities independently." In general terms, a person with a Class 1 impairment will have a "minimal" whole person impairment rating.

         ¶13 A person with a Class 2 impairment will have, "[c]onstant mild symptoms despite continuous treatment" or "intermittent, moderate symptoms despite continuous treatment." On physical examination, a person with a Class 2 impairment will have "[c]onstant mild physical findings despite continuous treatment" or "intermittent moderate findings." A person with a Class 2 impairment will have objective evidence of injury. For a musculoskeletal injury, a person with a Class 2 impairment will have "[p]ain/symptoms with normal activity" and be "[a]ble to perform self-care activities with modification but unassisted." In general terms, a person with a Class 2 impairment will have a "moderate" whole person impairment rating.

         ¶14 A person with a Class 3 impairment will have "[c]onstant moderate symptoms despite continuous treatment" or "intermittent, severe symptoms despite continuous treatment." On physical examination, a person with a Class 3 impairment will have "[c]onstant moderate physical findings despite continuous treatment" or "intermittent severe findings." A person with a Class 3 impairment will have objective evidence of injury. For a musculoskeletal injury, a person with a Class 3 impairment will have "[p]ain/symptoms with less than normal activity (minimal)" and "[r]equires assistance to perform self-care activities." In general terms, a person with a Class 3 impairment will have a "severe" whole person impairment rating.

         ¶15 Finally, a person with a Class 4 impairment will have [c]onstant severe symptoms despite continuous treatment" or "intermittent, extreme symptoms despite continuous treatment." On physical examination, a person with a Class 4 impairment will have "[c]onstant severe physical findings despite continuous treatment" or "intermittent extreme findings." A person with a Class 4 impairment will have objective evidence of injury. For musculoskeletal injuries, they will have "[p]ain/symptoms at rest" and be "[u]nable to perform self-care activities." In general terms, a person with a Class 4 impairment will have a "very severe" whole person impairment rating.

         ¶16 To calculate a whole person impairment rating under the AMA Guides, 6th Ed., the impairment evaluator[17] must first determine that the person is at MMI.[18] The impairment evaluator then uses the "key factor" for the condition and determines the impairment class for the patient's diagnosis, which will have a range of impairment ratings, which are further broken down into a grade based on the severity of the loss of function.[19] The impairment evaluator then determines where the patient falls in the range of impairment ratings based on: (1) the history of the patient's clinical presentation history, i.e., their subjective reports; (2) the physician's physical examination findings, giving greater weight to those findings that are "more objective";[20] (3) objective test results, e.g., imaging studies or electrodiagnostic studies; and (4) for musculoskeletal injuries, the patient's functional history, which is the functional impact of the condition.

         ¶17 Throughout the AMA Guides, 6th Ed., there are grids in the chapters for each body system or area, from Class 0 to Class 4.[21] As examples, the Shoulder Regional Grid, Table 15-5, is attached as Appendix B, the Knee Regional Grid, Table 16-3, is attached as Appendix C, and the Lumbar Spine Regional Grid, Table 17-4, is attached as Appendix D.[22]

         ¶18 Because of concerns over the high cost of Montana's workers' compensation system, the 2011 Legislature made several amendments to the WCA, including changes to the statutes under which impairment awards are calculated.[23]

         ¶19 The 2011 Legislature amended § 39-71-711(1)(b), MCA, to provide that impairment ratings "must be based on the sixth edition of the American medical association Guides to the Evaluation of Permanent Impairment." I.e., the legal standard is no longer the "current edition" of the Guides and when the American Medical Association publishes the 7th edition of the Guides, Montana will continue to use the AMA Guides, 6th Ed., until the Legislature amends § 39-71-711, MCA, if it decides to do so.

         ¶20 For PPD benefits, the Legislature changed the definition of "permanent partial disability" to incorporate the AMA Guides, 6th Ed. Section 39-71-116(27), MCA (2011), states:

"Permanent partial disability" means a physical condition in which a worker, after reaching maximum medical healing:
(a) has a permanent impairment, as determined by the sixth edition of the American medical association's Guides to the Evaluation of Permanent Impairment, that is established by objective medical findings for the ratable condition. The ratable condition must be a direct result of the compensable injury or occupational disease and may not be based exclusively on complaints of pain.
(b) is able to return to work in some capacity but the permanent impairment impairs the worker's ability to work; and
(c) has an actual wage loss as a result of the injury.

         ¶21 Under the 2011 WCA, every permanently partially disabled worker - i.e., a claimant who can return to regular employment but who has an actual wage loss as a result of an injury and a whole person impairment rating, which is not based exclusively on complaints of pain and which is supported by objective medical findings, under the AMA Guides, 6th Ed., including a claimant with a Class 1 impairment - is entitled to an impairment award as part of their PPD award.[24] Thus, in relevant part, § 39-71-703, MCA, states as follows:

(1) If an injured worker suffers a permanent partial disability and is no longer entitled to temporary total or permanent total disability benefits, the worker is entitled to a permanent partial disability award if that worker:
(a) has an actual wage loss as a result of the injury; and
(b) has a permanent impairment rating as determined by the sixth edition of the American medical association Guides to the Evaluation of Permanent Impairment for the ratable condition. The ratable condition must be a direct result of the compensable injury or occupational disease that:
(i) is not based exclusively on complaints of pain;
(ii) is established by objective medical findings; and
(iii) is more than zero.

         The claimant's PPD award is calculated with the claimant's weekly PPD rate - which is 662/3% of the claimant's wage at the time of injury, with the maximum set at half the State's average weekly wage[25] - by the formula set forth in § 39-71-703(3), (4), and (5), which states:

(3) The permanent partial disability award must be arrived at by multiplying the percentage arrived at through the calculation provided in subsection (5) by 400 weeks.
(4) A permanent partial disability award granted an injured worker may not exceed a permanent partial disability rating of 100%.
(5) The percentage to be used in subsection (4) must be determined by adding all of the following applicable percentages to the whole person impairment rating:
(a) if the claimant is 40 years of age or younger at the time of injury, 0%; if the claimant is over 40 years of age at the time of injury, 1%;
(b) for a worker who has completed less than 12 years of education, 1%; for a worker who has completed 12 years or more of education or who has received a graduate equivalency diploma, 0%;
(c) if a worker has no actual wage loss as a result of the industrial injury, 0%; if a worker has an actual wage loss of $2 or less an hour as a result of the industrial injury, 10%; if a worker has an actual wage loss of more than $2 an hour as a result of the industrial injury, 20%. Wage loss benefits must be based on the difference between the actual wages received at the time of injury and the wages that the worker earns or is qualified to earn after the worker reaches maximum healing.
(d) if a worker, at the time of the injury, was performing heavy labor activity and after the injury the worker can perform only light or sedentary labor activity, 5%; if a worker, at the time of injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity, 3%; if a worker was performing medium labor activity at the time of the injury and after the injury the worker can perform only light or sedentary labor activity, 2%.

         ¶22 However, the 2011 Legislature changed the law for claimants who do not suffer a wage loss. The 2011 WCA provides that a claimant with no actual wage loss - i.e., a claimant who is not permanently partially disabled - and a Class 1 impairment rating is not entitled to an impairment award. But, a claimant with no actual wage loss and a Class 2, 3, or 4 impairment rating is entitled to an impairment award. Section 39-71-703(2), MCA (2011), states:

When a worker receives a Class 2 or greater class of impairment as converted to the whole person, as determined by the sixth edition of the American medical association Guides to the Evaluation of Permanent Impairment for the ratable condition, and has no actual wage loss as a result of the compensable injury or occupational disease, the worker is eligible to receive payment for an impairment award only.

         ¶23 Hensley now challenges this subsection on equal protection grounds, asserting that the denial of an impairment award to a person with a Class 1 impairment and no wage loss, while granting an impairment award to a person with a Class 2 impairment and no wage loss, is facially unconstitutional under Mont. Const. art II, § 4. She also asserts that depriving her of an impairment award undercuts the quid pro quo on which the WCA is based, thereby violating her right to due process under Mont. Const. art II, § 17.

         Undisputed Facts[26]

         ¶24 On January 11, 2012, Hensley suffered a shoulder injury in the course of her employment as a paramedic for Polson Ambulance. Her job is heavy duty labor.

         ¶25 At the time of Hensley's industrial accident, State Fund insured her employer.

         ¶26 On January 30, 2012, Hensley filed a workers' compensation claim for her injury. State Fund accepted liability.

         ¶27 Larry Stayner, MD, diagnosed a glenoid labral tear. Dr. Stayner surgically repaired Hensley's shoulder on March 29, 2012.

         ¶28 However, Hensley suffered multiple post-surgical difficulties in her left arm. On October 11, 2013, Hensley saw Dr. Stayner and reported "mild tingling and numbness into the arm, but overall she is feeling good. She says mostly if she turns her neck she is sore in the trapezius area. She is working full at work and really can do most activities she needs to do." However, Dr. Stayner's examination revealed that she had, "a great deal of triggering in the trapezius and rhomboid musculature."

         ¶29 On May 10, 2013, Dr. Stayner released Hensley to return to work, "full shifts, no restrictions on lifting, but we will ask for backup, so that she can have some help and some backup when she is in the field for lifting, to make her feel more comfortable."

         ¶30 On June 5, 2013, Dr. Stayner found Hensley at MMI for her industrial injury. Under the AMA Guides, 6th Ed., he assigned her a 4% whole person impairment rating. This impairment rating is a Class 1 impairment.

         ¶31 State Fund paid Hensley $33, 156.81 in medical benefits and $34, 169.70 in ...


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