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Siaperas v. Montana State Fund9/21/2004
he seven jobs.
STANDARD OF REVIEW
We review the Workers' Compensation Court's findings of fact to determine whether substantial, credible evidence supports them, and we review its conclusions of law to determine whether they are correct. Hiett v. Missoula County Pub. Schs. , 2003 MT 213, 15, 317 Mont. 95, 15, 75 P.3d 341, 15.
DISCUSSION
We address the following issues on appeal: (1) whether the Workers' Compensation Social Security Disability offset provision, § 39-71-702(4), MCA (1995), violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (2) whether, because other physical conditions unrelated to her industrial injury prevented her from obtaining certain types of employment, Montana State Fund should decrease the percentage of the offset, and, consequently, increase her payments; (3) whether attorney fees are necessities of life under § 39-71-741(1)(c), MCA (1995), so Siaperas can obtain a lump sum payment from Montana State Fund; and (4) whether Montana State Fund reasonably represented her wages to determine her benefits for seven years. The remaining issues the Appellant raises are raised for the first time on appeal and, therefore, we do not consider them.
We considered the constitutionality of § 39-71-702(4), MCA (1995), which allows a workers' compensation insurance company to decrease the payments by 50 percent of the Social Security Disability benefits against workers' compensation benefits in McClanathan v. Smith (1980), 186 Mont. 56, 606 P.2d 507. We applied the rational basis test to the equal protection challenge and held that "the avoidance of duplication or overlapping of benefits is indeed a reasonable and permissive legislative objective," so "Montana's offset statute does not violate the equal protection clause." McClanathan , 186 Mont. at 66, 68, 69, 606 P.2d at 512, 513, 514.
Siaperas asserts that, because physical conditions unrelated to her industrial injury prevented her from performing certain types of employment, Montana State Fund should decrease the percentage of the offset, thus increasing the weekly benefit. That percentage of offset decrease should be equal to the percentage of jobs for which the industrial injury was not the main factor limiting job performance. Thus, if, for two of the seven jobs, an unrelated physical malady was the main limiting factor, that portion of the Social Security Disability benefits awarded because of the unrelated physical maladies would not be subject to the offset. This argument has many flaws.
No statute mandates a finite number of jobs a vocational consultant must consider in his job analyses, so he could consider any number of jobs with any variety of physical requirements. If appellant's theory held true, the number and characteristics of the jobs would become very important in determining the ratio of jobs the worker could perform. A vocational rehabilitation consultant could consider a small number of jobs that he expected the worker could not perform because of conditions unrelated to the industrial injury , and thus increase the percentage; or he could consider a small number of jobs that he expected the worker could perform except for the conditions unrelated to the industrial injury, and thus decrease the percentage. Ultimately, only after considering every possible position for which a worker was qualified could the insurer divine the true percentage. The legislature could not have intended this absurd result.
Also, allowing this offset would mean an additional battery of tests every time an insurer wanted to use the offset statute. The legislature could not have intended this
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