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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
e capacity but the physical restriction impairs the worker's ability to work.
No physician has approved claimant to return to his time-of-injury job or heavy labor. He has been physically restricted from heavy labor. Since, as I have concluded above, he is able to return to work in some capacity, he meets the definition of a permanently partially disabled worker.
Permanent partial disability benefits are governed by section 39-71-703, MCA (1993), which provides as follows:
39-71-703. Compensation for permanent partial disability. (1) If an injured worker suffers a permanent partial disability and is no longer entitled to temporary total or permanent total disability benefits, the worker is entitled to a permanent partial disability award.
(2) The permanent partial disability award must be arrived at by multiplying the percentage arrived at through the calculation provided in subsection (3) by 350 weeks.
(3) An award granted an injured worker may not exceed a permanent partial disability rating of 100%. The criteria for the rating of disability must be calculated using the medical impairment rating as determined by the latest edition of the American medical association Guides to the Evaluation of Permanent Impairment. The percentage to be used in subsection (2) must be determined by adding the following applicable percentages to the impairment rating:
(a) if the claimant is 30 years of age or younger at the time of injury , 0%; if the claimant is over 30 years of age but under 56 years of age at the time of injury, 2%; and if the claimant is 56 years of age or older at the time of injury, 3%;
(b) for a worker who has completed less than 9 years of education, 3%; for a worker who has completed 9 through 12 years of education or who has received a graduate equivalency diploma, 2%; for a worker who has completed more than 12 years of education, 0%;
(c) if a worker has no wage loss as a result of the industrial injury , 0%; if a worker has an actual wage loss of $2 or less an hour as a result of the industrial injury, 10%; if a worker has an actual wage loss of more than $2 an hour as a result of the industrial injury, 20%; and
(d) if a worker, at the time of the injury , was performing heavy labor activity and after the injury the worker can perform only light or sedentary labor activity, 20%; if a worker, at the time of injury, was performing heavy labor activity and after the injury the worker can perform only medium labor activity, 15%; if a worker was performing medium labor activity at the time of the injury and after the injury the worker can perform only light or sedentary labor activity, 10%.
(4) The weekly benefit rate for permanent partial disability is 66 2/3% of the wages received at the time of injury , but the rate may not exceed one-half the state's average weekly wage. The weekly benefit amount established for an injured worker may not be changed by a subsequent adjustment in the state's average weekly wage for future fiscal years.
(5) If a worker suffers a subsequent compensable injury or injuries to the same part of the body, the award payable for the subsequent injury may not duplicate any amounts paid for the previous injury or injuries.
(6) As used in this section:
(a) "heavy labor activity" means the ability to lift over 50 pounds occasionally or up to 50 pounds frequently;
(b) "medium labor activity" means the ability to lift up to 50 pounds occasionally or up to 25 pounds frequently;
(c) "light labor activity" means the ability to lift up to 25 pounds occasionally or up to 10 pounds frequentl
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