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Rausch v. State Compensation Insurance Fund9/5/2002
claimants established a vested right on behalf of the absent claimants to directly receive immediate monetary payments of past due benefits underpayments; . . . ." Murer, 283 Mont. at 223, 942 P.2d 76-77. We held:
hen a party, through active litigation, creates a common fund which directly benefits an ascertainable class of non- participating beneficiaries, those non-participating beneficiaries can be required to bear a portion of the litigation costs, including reasonable attorney fees. Accordingly, the party who creates the common fund is entitled, pursuant to the common fund doctrine, to reimbursement of his or her reasonable attorney fees from that fund. Murer, 283 Mont. at 223, 942 P.2d at 76.
Pursuant to Murer, we conclude that claimants' attorneys in this case are entitled to common fund attorney fees. The attorneys representing Rausch, Fisch and Frost all engaged in active litigation which preserved the benefit of immediate impairment awards to permanently totally disabled claimants. The attorneys incurred legal costs and fees in the preservation of that right, and the common fund will benefit an ascertainable class of workers who were denied immediate payment of an impairment award by the State Fund which they were legally entitled to receive. Those absent claimants will receive the benefit "even though they were not required to intervene, file suit, risk expense, or hire an attorney." Murer, 283 Mont. at 223, 942 P.2d at 77. Accordingly, claimants' attorneys are entitled to reasonable attorney fees for the creation or preservation of a common fund, and those fees should be divided among the three firms involved in this case. This case is remanded to the Workers' Compensation Court for a determination of a reasonable fee.
Finally, claimants request this Court to award a twenty percent penalty against the State Fund for its unreasonable initial denial of benefits and delay in payment of their impairment awards. However, we conclude that unreasonable conduct has not been established and, therefore, decline to assess a penalty.
Accordingly, we conclude that permanently totally disabled claimants are entitled to impairment awards, which are due upon the receipt of the undisputed impairment rating. Furthermore, impairment awards of permanently totally disabled claimants should be characterized as a permanent total disability benefit. Finally, we conclude that claimants' attorneys are entitled to reasonable attorney fees pursuant to the common fund doctrine, but that claimants are not entitled to a twenty percent penalty.
We reverse the order of the Workers' Compensation Court and remand for further proceedings consistent with this Opinion.
We Concur:
PATRICIA COTTER
JIM REGNIER
Justice Jim Rice, specially concurring.
I concur with the holding of the Court herein, and offer the following comments in regard to Issue 1.
The Workers' Compensation Court was faced with the unenviable duty of construing, not just one statute, but the entirety of the statutory framework surrounding impairment awards. As evidenced by the opinions herein of both the Workers' Compensation Court and this Court, determining the proper interpretation of the statutes was a difficult task, even with application of maxims of statutory construction. A reading of the statutes gives the distinct impression that the impairment award is a benefit provided in all disability cases. However, a closer review reveals that such an entitlement is not explicitly created. The situation is something akin to a group of people talking about an absent comrade. They all know he exists. He just isn't there.
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