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Fellenberg v. Transportation Insurance Co.4/12/2005
s (1986), 224 Mont. 481, 730 P.2d 1139, if he is PTD. As we have determined that he is not PTD, this entitlement does not follow.
Fellenberg also challenges the WCC's conclusion that he is not entitled to an impairment award. Fellenberg argues that as a result of his PTD, he is entitled to a disability award in accordance with Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 637 P.2d 10. In Holton, the Court allowed an impairment rating to be immediately payable in a PPD case. Subsequently in Rausch v. State Compensation Ins. Fund, 2002 MT 203, 311 Mont. 210, 54 P.3d 25, we held that under 1991 and 1997 laws, an impairment award is "for the loss of physical function of their body occasioned by a work-related injury ," is not tied to PPD benefits, and is payable to PTD as well as PPD claimants. Rausch, 30. Fellenberg advocates the application of Rausch to his case. The WCC, however, concluded that Rausch did not apply; rather Grimshaw v. L. Peter Larson Co. (1984), 213 Mont. 291, 296, 691 P.2d 805, 807, which interpreted pre-1987 applicable law, controlled. Grimshaw stated " f the claimant is not presently entitled to receive partial disability benefits, Holton does not apply." The WCC concluded that Grimshaw expressly prohibited a non-PPD qualified claimant under pre-1987 law from receiving a Holton impairment award. The court further opined that while Rausch had adopted another rule as to post-1991 claims, Rausch had not overturned Grimshaw and it was not the role of the WCC to overrule Supreme Court decisions. We agree with the WCC that Grimshaw controlled in the case at bar and under Grimshaw, Fellenberg is not entitled to a Holton impairment award.
Finally, Fellenberg raises constitutional challenges with respect to four ODA statutes. Basically, he raises equal protection objections to the extent that the statutes in question deny certain benefits to occupationally diseased workers which are otherwise available to injured workers. Notably, though, Fellenberg does not challenge the constitutionality of ยง 37-71-116(13), MCA, taken from the Worker's Compensation Act, and under which we make our decision. Since our decision does not require us to interpret or apply any ODA statute the constitutionality of which is in question, we need not reach Fellenberg's constitutional challenges to those statutes.
CONCLUSION
For the foregoing reasons, we affirm the Workers' Compensation Court.
PATRICIA O. COTTER
We Concur:
KARLA M. GRAY
JOHN WARNER
W. WILLIAM LEAPHART
JIM RICE
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