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Fellenberg v. Transportation Insurance Co.4/12/2005
Submitted on Briefs: October 14, 2004
Ruben Fellenberg (Fellenberg) appeals the Workers' Compensation Court's denial of his claim for benefits under the Occupational Disease Act of 1985. We affirm.
ISSUES
Fellenberg presents the following issues on appeal:
1. Did the Workers' Compensation Court (WCC) err in concluding that he is not entitled to permanent total disability (PTD) benefits?
2. Did the WCC err in concluding that he is not entitled to 500 weeks of permanent partial disability (PPD) benefits under Hunter v. Gibson Products of Billings (1986), 224 Mont. 481, 730 P.2d 1139?
3. Did the WCC err in concluding that he is not entitled to an impairment award?
4. Are various statutes in the Montana Occupational Disease Act (MODA) unconstitutional?
FACTUAL AND PROCEDURAL BACKGROUND
Fellenberg worked for W.R. Grace/Zonolite (Grace) in Libby, Montana, from 1958 until July 1986. In March 1985, Fellenberg was diagnosed with asbestosis. He immediately filed a report of occupational disease alleging that his asbestosis arose out of his employment. Transportation Insurance Company (Transportation), Grace's insurer at that time, denied the claim.
In July 1986, at the age of 62, Fellenberg retired. He elected early social security retirement benefits, which he has been receiving since 1986. He also has been receiving a pension from Grace since 1986.
Since his retirement, Fellenberg's lung disease has become progressively worse, and in October 1998, his personal physician deemed him permanently totally disabled. On December 5, 2002, Fellenberg filed a Petition for Trial seeking compensation and medical benefits under the 1985 Montana Occupational Disease Act. In February 2003, Transportation accepted liability for Fellenberg's illness but challenged the claim on several grounds.
Following a trial, the WCC issued Findings of Fact, Conclusions of Law and Judgment. The WCC found that, while still capable of working, Fellenberg voluntarily retired from Grace in 1986, for reasons unrelated to his occupational asbestos disease. The court further found that Fellenberg has not worked since his retirement and that at the time of his retirement, he had no intention of returning to the work force. Fellenberg does not dispute these findings.
The WCC concluded that, as a result of his voluntary withdrawal from the labor force in 1986, Fellenberg was not entitled to PTD benefits because he did not meet the statutory requisites for such benefits. Specifically, the court concluded Fellenberg had no "loss of actual earnings" or loss of "earning capability" as a result of his occupational disease; rather, his "loss of actual earnings" was the result of his voluntary retirement. Furthermore, while finding that Fellenberg suffered a sixty percent loss of earning capability, the WCC concluded that such a reduction in earning capability was not compensable because he had voluntarily retired at 62, and at age 79, did not work and did not intend to work. The WCC also concluded that under the 1983 version of ยง 39-71-710, MCA, Fellenberg would not be entitled to PTD benefits at any future time because he receives social security retirement benefits.
Having determined that Fellenberg was not entitled to PTD benefits, the WCC concluded that Fellenberg likewise did not qualify for PPD benefits, pursuant to Hunter. The Court also concluded that Fellenberg was not entitled to an impairment award. Lastly, the WCC considered Fellenberg's constitutional challenges to two of the four statutes in question and held that the statutes were const
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