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Siaperas v. Montana State Fund9/21/2004
Submitted on Briefs: August 25, 2004
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
Patsy Siaperas appeals from the Workers' Compensation Court's order dated January 15, 2004, denying the increase in benefits, denying the lump sum payment, and denying attorney fees and penalty against Montana State Fund. We affirm the Workers' Compensation Court.
BACKGROUND
On August 17, 1996, Patsy Siaperas injured her low back while working at High Plains Pizza in Dillon, Montana. Montana State Fund was insuring High Plains Pizza for its workers' compensation claims. It accepted liability for her injury and paid medical and compensation benefits based on the four biweekly pay periods prior to her accident. Those records indicated her average weekly wage was $553.84, two-thirds of which became her $369.23 weekly workers' compensation benefits. At that time, Montana State Fund knew nothing of the quarterly bonuses that High Plains Pizza paid Siaperas.
Seven years into the litigation and two months prior to the trial, Siaperas told Montana State Fund that her salary included both her base pay and bonuses that Montana State Fund had not included in the original determination of her average weekly wage. Properly including the new bonuses, her average weekly wage should have been $759.99, two-thirds of which is $506.66. Nevertheless, at the time of the accident, the State's annual weekly wage capped her benefits at $384.00 per week. Montana State Fund should have been paying her $384.00 but paid her only $369.23 per week, so the weekly underpayment was $14.77.
Meanwhile, the Social Security Administration also was assessing Siaperas's claims for Social Security Disability benefits. On June 28, 2002, the administrative law judge found that a combination of medically determinable impairments-including her lower back injury caused by the industrial accident, gastroensophageal reflux disease (GERD), and gall bladder dysfunction-significantly limited Siaperas's ability to work. The administrative law judge found these impairments rendered her totally disabled and awarded her $290.74 per week. Pursuant to ยง 39-71-702(4), MCA (1995), Montana State Fund decreased Siaperas's benefits by 50 percent of the Social Security Disability benefits.
In February 2003, at the request of Montana State Fund, vocational consultant James Porta chose seven jobs for which Siaperas was qualified as a representative sample to determine whether Siaperas could return to work at any job . Porta completed a job analysis on each job to determine whether her physical condition prevented her from performing that job and found she was unable to perform any of the seven jobs.
Siaperas wanted to determine which of these jobs her lower back problems prevented her from performing verses which jobs her GERD and gall bladder problems prevented her from performing. Because her treating physician did not have the expertise to determine which condition prevented her from performing which job, Siaperas visited Dr. Patrick E. Galvas, an Occupational Health Specialist. Dr. Galvas found that her lower back was the main limiting factor preventing her from performing five of the seven jobs, and her GERD and gall bladder problems were the main limiting factors preventing her from performing two of t
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