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Bergman v. Valor Insurance Company6/3/2002
DECISION AND JUDGMENT
Summary:
Claimant suffered a back injury in 1998. His resulting impairment was 15% and he settled his claim for further benefits. Subsequently, on March 21, 2000, he suffered an aggravation of his condition. However, that aggravation did not increase his impairment and did not result in any wage loss or additional physical restrictions. Nonetheless, he seeks a 15% impairment award with respect to the subsequent injury.
Held: Claimant is not entitled to an impairment award. He failed to prove that he suffered any additional impairment or disability on account of the second injury , which appears to have been only a temporary aggravation of his pre-existing condition. Moreover, he settled his first claim. That settlement encompassed any claim for an impairment award and since his impairment was 15% as a result of the 1st injury that 15% must be deducted from any claim arising with respect to the second injury. ยง 39-71-703(7), MCA (1999). Since the impairment following the second injury was 15%, he would be entitled to nothing in any event.
Topics:
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated:
Section 39-71-703(7), MCA (1999). A subsequent insurer liable for an injury to the same body part which was previously injured is entitled to an offset for the impairment suffered as a result of the prior injury or injuries even though the claimant settled the prior claim or claims and the settlement did not expressly allocate or consider the impairment.
Injury and Accident: Aggravation: Temporary Aggravation. Where a subsequent injury does not increase the claimant's pre-existing impairment or his disability, he is not entitled to an impairment award.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-703(1-2), MCA (1999). Where a subsequent injury does not increase the claimant's pre-existing impairment or his disability, he is not entitled to an impairment award.
Benefits: Impairment Awards. Where a subsequent injury does not increase the claimant's pre-existing impairment or his disability, he is not entitled to an impairment award.
This matter is submitted to the Court for decision based upon Stipulated Facts and Issues to Be Determined by the Court filed January 11, 2002.
The case involves Bryan Bergman (claimant), who suffered back injuries in 1998 and 2000. The insurer for the first injury was Reliance National. The insurer for the second injury was Valor Insurance Company, Incorporated (Valor). Following the first injury, claimant's impairment rating was 15%. Following the second injury, it was the same. Reliance National settled claimant's first injury for an amount barely greater than the 15% impairment, however, claimant alleges that the impairment rating was unknown at the time of the settlement and therefore not encompassed in the settlement. He now seeks the full 15% impairment rating from Valor.
As set forth in the parties' stipulation, the following issues are presented for decision:
1. Whether Petitioner was compensated for the 15% whole-person impairment rating assigned by Dr. Catherine Capps on October 14, 1999, by the insurer responsible for adjusting Petitioner's October 1, 1998 injury claim;
2. Whether Petitioner sustained an additional ratable impairment under the JAMA Guidelines to Permanent Impairment, 5th Edition, as a result of the March 21, 2000 industrial accident; and
3. Whether Petitioner is entitled to be compensated by Respondent/Insurer for the Petitioner's March 21, 2000 industrial accident for the
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