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Siaperas v. Montana State Fund8/20/2002
ORDER DENYING ATTORNEY FEES AND PENALTY
Petitioner (claimant) is seeking attorney fees and a penalty with respect to an impairment award the Montana State Fund agreed to pay him after a conference call in which this Court strongly urged that the payment be made. Some background is necessary to appreciate the claimant's present request.
Factual Background
The essential facts of this case are undisputed. They are found in the pleadings and based upon my teleconference with counsel on May 22, 2002.
Claimant injured her back on August 17, 1996, while working for Pizza Hut, Incorporated, in Dillon, Montana. Pizza Hut was insured by the Montana State Fund, which accepted liability for her injury.
Claimant subsequently underwent back surgery with instrumentation. In early February 2002, pursuant to questions put to him by the State Fund, claimant's treating physician opined that the claimant had reached maximum medical improvement (MMI) unless she chose to have the hardware in her back removed, in which case she would continue in non-MMI status until three months after hardware removal. The treating physician rated claimant's impairment at 15% "with or without instrumentation." Apparently, claimant had previously scheduled removal of the instrumentation but cancelled the procedure. But in February 2002, she indicated she wished to proceed after all with the removal of the hardware.
On April 11, 2002, claimant filed her petition with this Court. In her petition she indicated she had recently (in April) undergone removal of the instrumentation in her back and was still receiving temporary total disability benefits (TTD). Nonetheless, she demanded payment of a 15% impairment award.
The State Fund did not dispute the facts as set forth above, however, it denied that an impairment award was presently due since claimant had not reached MMI and would not do so for approximately another three months.
After reviewing the petition, I contacted counsel for both parties and ascertained that there was no disagreement that claimant would be due the 15% award after recovering from the April surgery. The only issue separating the parties was, as I indicated in my minute entry of that date, the "timing of the payment." In that light, I "strongly suggested if not directed" the State Fund to pay the impairment award, noting that section 39-71-737, MCA (1995), permitted the payment of "impairment awards . . . concurrently with other classes of benefits." The State Fund's adjuster, who participated in the telephone conference, acquiesced and the State Fund commenced paying the impairment award without further adieu. However, claimant is now seeking a penalty and attorney fees with respect to the impairment award.
Discussion
A.
An award of attorney fees and a penalty require proof that the State Fund acted unreasonably in denying claimant's request for the impairment award. ยงยง 39-71-611, -612, and 2907, MCA (1995). The timing of impairment awards is governed not only by section 39-71-737, MCA (1995), which allows payment of an impairment award concurrently with other classes of benefits, but also by section 39-71-711, MCA (1995), which provides in relevant part:
39-71-711. Impairment evaluation -- ratings. An impairment rating:
(a) is a purely medical determination and must be determined by an impairment evaluator after a claimant has reached maximum healing;
On its face, the quoted provision requires a determination that claimant has reached "maximum healing" as a prerequisite to any impairment determination and thus to any impairme
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