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Siaperas v. Montana State Fund8/20/2002
nt award. The section arguably precludes payment of the award in this case until claimant has recovered from her April surgery. Indeed, the State Fund could have reasonably litigated the timing of the impairment award to conclusion.
So why did I strongly urge the State Fund to pay the award? As I indicated in my minute entry of May 22, 2002, the parties agreed as to the amount of the award and disagreed only as to timing. The timing issue involved three months. Even if the State Fund were successful in its defense of the case, the payment would have been delayed by only three months. By the time this matter wound its way through the normal litigation process, that time would have elapsed. Meanwhile, both parties would have expended substantial time and expense in litigating the question. To what end? As already noted, section 39-71-737, MCA allows payment of an impairment award concurrent with other benefits, therefore it does not prohibit the payment requested in this case and no great overreaching principle is involved.
Moreover, claimant was arguably at MMI upon recovery from her original surgery, and therefore entitled to an impairment award at that time, since the second surgery was purely elective. Thus, she might be viewed as having reached MMI following the first surgery and then reverted to non-MMI status following the second surgery. But that sort of analysis would hardly benefit the claimant since it would have authorized the State Fund to cut off claimant's benefits upon her reaching MMI from her first surgery and reinstate them only upon claimant's undergoing the second surgery.
In any event, the case at hand is an unusual one. The State Fund did not act unreasonably and there is no basis for an award of attorney fees or a penalty.
B.
Claimant, however, makes the further argument that attorney fees are constitutionally required, hence the statutory limitation on attorney fees is unconstitutional. She relies on the "full redress" language of section 16, Article II of the 1972 Montana Constitution. "Full redress, however, refers to redress from third parties, not to the redress available from insurers providing coverage under workers' compensation laws. Attorney fees are not constitutionally mandated.
JUDGMENT
Claimant's request for an impairment award is moot as it has been paid.
Claimant's request for attorney fees and a penalty is denied.
The petition in this matter is dismissed with prejudice.
Claimant is not entitled to costs.
This JUDGMENT is certified as final for purposes of appeal.
Any party to this dispute may have 20 days in which to request a rehearing from this Order Denying Attorney Fees and Penalty.
DATED in Helena, Montana, this 20th day of August, 2002.
Submitted: June 24, 2002
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