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Bergman v. Valor Insurance Company6/3/2002
des:
(7) 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.
The section was enacted after the Supreme Court decision in Tiedeman v. Cooper Logging, Inc, 218 Mont. 312, 708 P.2d 255 (1985). In Tiedeman the Supreme Court held that an insurer for a subsequent injury to the same body part is not entitled to a deduction for a prior insurer's payment on account of the prior injury to that body part.
Claimant's argument overlooks the question of causation. Neither Tiedeman nor section 39-71-703(7), MCA (1999), require a subsequent insurer to pay benefits where there is no permanent aggravation of the pre-existing condition. Thus, where the subsequent injury causes no additional impairment or disability, section 39-71-703(7), MCA (1999), is inapplicable. The subsequent injury or aggravation, such as alleged in this case, must cause a permanent detriment in order to be compensable. Kuntz v. Nationwide Mut. Fire Ins. Co., 287 Mont. 142, 952 P.2d 422 (1998). An injury causing only a temporary aggravation or flareup of a pre-existing condition does not entitle a worker to permanent disability benefits. Id.
The claimant in this case bears the burden of proving that the March 21, 2000 injury permanently aggravated his pre-existing back condition. He has not carried his burden. The stipulated facts show that the aggravation did not change his impairment rating, his wage loss, or ability to work. Irrespective of whether he was paid for the impairment resulting from his 1998 injury, he is not entitled to an impairment award on account of the March 21, 2000 injury.
Moreover, claimant's settlement with Reliance National must be credited against his present impairment claim. That settlement resolved all claims against Reliance National, including any claim for an impairment award.
Even though claimant and the insurer may not have agreed on the impairment rating, the settlement encompassed the impairment. Therefore, the 15% impairment must be deducted under section 39-71-703 (7), MCA (1999). Since the claimant's post-2000 injury impairment is 15%, he would be entitled to nothing even if the section applied.
I therefore conclude as a matter of law that the claimant is not entitled to an impairment award in any amount from Valor.
JUDGMENT
Claimant is not entitled to an impairment award in any amount from Valor. Therefore, his petition should be and is dismissed with prejudice.
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 Decision and Judgment.
DATED in Helena, Montana, this 3rd day of June, 2002.
Submitted: January 11, 2002
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