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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
Temporary total disability benefits are governed by section 39-71-701, MCA (1993). Those benefits are payable only so long as " the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing." Maximum healing, as defined in section 39-71-116(14), MCA, "means a point in the healing process when further material improvement would not be reasonably expected from primary medical treatment." "Primary medical treatment" is "treatment prescribed by a treating physician, for conditions resulting from the injury, necessary for achieving medical stability." Under these definitions, maximum healing occurs at the point of time when further treatment cannot be reasonably expected to materially improve claimant's condition.
I have found as fact that as of January 19, 2001, there was no reasonable expectation that further treatment will materially improve claimant's condition. In part that finding is based on my further finding that claimant is exaggerating his pain, thus vitiating the recommendations for further testing. It is also based on claimant's non-compliance with recommended treatment. By that time, and surely long before that time, there was no treatment recommendation which claimant would have accepted and followed.
Moreover, any wage loss claimant suffered thereafter was not due to an inability to work but rather to his unwillingness to work. Thus, the other requirement for continuation of TTD benefits is not met.
Claimant's request for PTD benefits is governed by section 39-71-702, MCA (1993), which limits permanently total disability benefits to permanently totally disabled workers. Permanent total disability is defined in section 39-71-116(19), MCA, as follows:
19) "Permanent total disability" means a condition resulting from injury as defined in this chapter, after a worker reaches maximum medical healing, in which a worker does not have a reasonable prospect of physically performing regular employment. Regular employment means work on a recurring basis performed for remuneration in a trade, business, profession, or other occupation in this state. Lack of immediate job openings is not a factor to be considered in determining if a worker is permanently totally disabled.
As previously found, claimant is at MMI. I am unpersuaded that claimant has a reasonable prospect of physically performing regular employment. He has been released for work in light and sedentary positions. He has been medically approved for jobs as a motel desk clerk, an airport screener, and frame assembler. Those jobs are available in Montana in significant numbers. I therefore conclude that claimant is not permanently totally disabled, therefore he is not entitled to PTD benefits.
I therefore consider whether claimant is entitled to PPD benefits. "Permanent partial disability" is defined in section 39-71-116(18), MCA (1993), as follows.
(18) "Permanent partial disability" means a condition, after a worker has reached maximum medical healing, in which a worker:
(a) has a medically determined physical restriction as a result of an injury as defined in 39-71-119; and
(b) is able to return to work in som
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