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Wallace v. State Compensation Insurance Fund12/7/1999
of the wages received at the time of the injury. . . .
Section 39-71-116(19), MCA (1981), defines temporary total disability as follows:
(19) "Temporary total disability" means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence. [Emphasis added.]
Ordinarily, the claimant bears the burden of establishing his right to compensation. DuMont v. Wickens Bros. Constr. Co., 183 Mont. 190, 201, 598 P.2d 1099, 1105 (1979). Claimant , however, argues, in essence, that he is relieved of his burden of proof because the State Fund did not give him 14-days notice of its intent to terminate his benefits, as required by section 39-71-609, MCA (1981), and failed to comply with the Coles requirements for termination of benefits. He argues that those failures automatically entitle him to total disability benefits through the present time except for the weeks he worked for the USDA. He contends that his return to work as a real estate salesman, as well as his real estate sales commissions, should be disregarded since he worked as an independent contractor, not as an employee.
At issue is the applicability of section 39-71-609, MCA (1981), which provides:
Denial of claim after payments made or termination of benefits by insurer - fourteen days' notice required. If an insurer determines to deny a claim on which payments have been made under 39-71-608 during a time of further investigation or, after a claim has been accepted, terminates biweekly compensation benefits, it may do so only after 14 days' written notice to the claimant, the claimant's authorized representative, if any, and the division. However, if an insurer has knowledge that a claimant has returned to work, compensation benefits may be terminated as of the time the claimant returned to work. [Emphasis added.]
Respondent contends that neither the 14-day notice requirement nor the Coles criteria apply since claimant had returned to work and the insurer had knowledge of the return to work.
The Coles requirements were engrafted upon section 39-71-609, MCA (1981), by this Court in Coles v. Seven Eleven Stores, Docket No.2000, decided November 20, 1984, affirmed 217 Mont. 343, 704 P.2d 1048 (1985), and formally embraced by the Supreme Court in Wood v. Consolidated Freightways, Inc., 248 Mont. 26, 30, 808 P.2d 502, 505 (1991); accord Ness v. Anaconda Minerals, 257 Mont. 335, 339-40, 849 P.2d 1021, 1023- 24 (1993). As set forth in Wood, in addition to giving 14-days notice of termination of benefits, prior to any termination of benefits the following requirements must be met:
(1) a physician's determination that the claimant is as far restored as the permanent character of his injuries will permit;
(2) a physician's determination of the claimant's physical restrictions resulting from an industrial accident;
(3) a physician's determination, based on his knowledge of the claimant's former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted by age, education, work experience, and physical condition;
(4) notice to the claimant of receipt of the report attached to a copy of the report. [Emphasis omitted.]
Id. at 30, 808 P.2d at 505.
On its face, section 39-71-609, MCA (1981), does not require a 14-day notice where a worker has "returned to work." Moreover, post-Coles decisions hold
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