Grimshaw v. L. Peter Larson Co.

• Decision Date: 15 November 1984
• Docket Number: No. 84-112,84-112
• Citation: 691 P.2d 805,213 Mont. 291,41 St.Rep. 2123
• Parties: Matthew I. GRIMSHAW, Claimant and Respondent, v. L. PETER LARSON COMPANY, Employer and Appellant, and L. Peterson Larson Company, Defendant and Appellant.
• Court: Montana Supreme Court

Page 805

691 P.2d 805

213 Mont. 291

Matthew I. GRIMSHAW, Claimant and Respondent, v. L. PETER LARSON COMPANY, Employer and Appellant, and L. Peterson Larson Company, Defendant and Appellant.

No. 84-112.

Supreme Court of Montana.

Submitted Sept. 24, 1984.

Decided Nov. 15, 1984.

Garlington, Lohn & Robinson; Robert E. Sheridan argued, Missoula, for appellants.

Monte Beck argued, Bozeman, for claimant and respondent.

GULBRANDSON, Justice.

This is an appeal from an order of the Workers' Compensation Court. The court ordered that claimant's permanent total disability benefits and permanent partial disability benefits were to be paid concurrently. The court also allowed the conversion of the permanent partial benefit to a lump sum. We reverse the order requiring the payment of concurrent benefits.

The claimant, Matthew I. Grimshaw, was injured on September 11, 1980, while in the scope and course of his employment for the L. Peter Larson Company, a self-insured employer under Plan I of the Montana Workers' Compensation Act. Claimant injured his back when the logging tractor he was operating fell into a three to four foot hole. At the time of his injury, claimant was twenty-five years old, married, and with two dependent children.

L. Peter Larson Company accepted liability for the injury and began paying the claimant total disability benefits. His total disability rate is $219 per week. After examining the claimant in September, 1982, Dr. Carl Albertson of Plains, Montana, concluded that he had an 18% impairment of the whole man as a result of his injury. He also concluded that claimant was unable to return to his former occupation to do manual labor, and recommended that he consider training for a less strenuous job.

Claimant developed a rehabilitation plan which was accepted by the Rehabilitation Services Division, and enrolled in the mechanical engineering program at Montana State University. Under that plan, in addition to his other benefits, he is receiving reimbursement for his tuition and a monthly expense payment of $75. On October 8, 1982, after claimant had started school, the employer wrote to him stating that, since his condition had stabilized, his benefits were to be reduced to $109.50 per week for ninety weeks, the 18% partial disability rate. The letter made no mention of the rehabilitation benefits. Claimant then retained counsel, who requested that the employer reinstate total disability benefits, and also demanded that employer pay claimant's impairment claim. Employer reinstated the total disability amount, but contested its obligation to pay any impairment claim.

The Workers' Compensation Court ruled that the claimant was entitled to receive benefits based on his undisputed impairment rating while concurrently receiving the permanent total disability benefits during his vocational re-training. The court also required employer to pay a portion of the partial disability award in a lump sum.

The following issues are raised on appeal:

(1) Does Holton v. F.H. Stolze (1981), 195 Mont. 263, 637 P.2d 10, give rise to an impairment claim that is not a class as contemplated by section 39-71-737, MCA?

(2) Does Part 10 of the Workers' Compensation Act give rise to a separate rehabilitation benefit that is not a class as contemplated by section 39-71-737, MCA?

(3) Did the Workers' Compensation Court err in awarding part of the partial disability payments in a lump sum?

(4) Should appellant-employer be required to pay the 20% penalty as provided for in section 39-71-2907, MCA, for dilatory payment of workers' compensation benefits?

The Workers' Compensation Court required the employer to pay permanent total disability benefits (for rehabilitation) and permanent partial disability benefits concurrently to the claimant. The primary hurdle that must be cleared in order to uphold the order of the Worker's Compensation Court is section 39-71-737, MCA. It simply states that: "Compensation shall run consecutively and not concurrently, and payment shall not be made for two classes of disability over the same period." It should be noted at this point that the employer concedes that it will have to pay claimant some amount for his partial disability, but contends that it is not required to do this until after claimant's permanent total period expires, citing 39-71-737, MCA.

The only case that has construed 39-71-737, MCA, is Dosen v. East Butte Copper Mining Co. (1927), 78 Mont. 579, 254 P. 880. There this Court held that "[t]he 'classes' mentioned in section 2919 [the predecessor to 39-71-737] as originally enacted ... evidently refer to the four disabilities," which are: "(1) [t]emporary total disability; (2) permanent total disability; (3) temporary partial disability; (4) permanent partial disability." Of those classes, "[t]he compensation shall run consecutively,--successively, the payments succeeding one another in regular order." 78 Mont. at 601, 254 P. at 887. In Dosen, the claimant argued that he was entitled to compensation for permanent partial disability while he was receiving temporary total benefits. This Court emphasized the "successive" nature of the various classes in holding that the claimant was not entitled to both at once. See also McDanold v. B.N. Transport, Inc. (Mont.1984), 679 P.2d 1188, 41 St.Rep. 472. (Temporary total disability benefits are for the healing process, and only when that process is complete is the claimant entitled to another class of compensation.)

The language of 39-71-737, MCA, has remained unaltered throughout the history of the Montana Workers' Compensation Act. Originally it was contained in a section that dealt primarily with payments made to deceased workers' beneficiaries. That language has been recodified in section 39-71-723 and 724, MCA (1983). The "classes" that section 737's predecessors referred to have varied; from the medical expense-wage loss scheme of the original act, to the present wage loss-functional impairment scheme. The fact that the Act has otherwise been amended so many times with the section 737 language remaining intact leads strongly to the conclusion that "classes" refers to all of the various benefits provided by the Act that are not otherwise specifically excepted.

Claimant mounts a two-prong defense of the Workers' Compensation Court's order. Both arguments are to the same effect; that one or the other of the payments ordered are not classes within the contemplation of section 737.

The Workers' Compensation Court based its ruling on this Court's decision in Holton v. F.H. Stolze (1981), 195 Mont. 263, 637 P.2d 10 as follows:

"The Court found the claimant had an absolute entitlement to payment based on the impairment rating ... Although the Court referred to the payment as a payment of a 'disability' claim, the holding, when read in context reveals that the Court was in fact referring to the payment of an 'impairment' claim ... [T]he payment of an 'impairment' claim is not a 'class of disability' for which concurrent payment is prohibited by section 39-71-737, MCA (1981) ... It is separate and distinct from the other types of benefits to which an injured worker [is] entitled." Grimshaw v. Larson, Workers' Compensation Court Docket No. 1959, decided February 4, 1984. (Citations omitted.)

The Workers' Compensation Court misapplied and misinterpreted Holton. In that case, the claimant was not totally disabled, and was not receiving total disability benefits at the time he requested partial disability benefits. He had returned to work, and thus there was no issue of concurrent payment of classes of compensation.

The lower court felt that Holton gave rise to a so-called "indemnity benefit" as a new and wholly different award under the Act. This is reading too much into Holton. The language relied upon by the lower court came from the part of the opinion that was discussing the 20% penalty. Employer correctly points out the context of that language. The claimant had an undisputed right to some amount of temporary total disability benefits then and there, and the issue was how much. The claimant in Holton had already been examined, and the insurer had received a verification of the claimant's physical impairment rating.

The impairment rating is the medical component of a claimant's disability rating, which is a medical-legal concept. See Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67; Grosfield, Montana Workers' Compensation Manual, section 6.10. This Court in Holton implicitly held that the impairment rating is the lowest level the disability rating may reach, and when the legal consequences of the impairment are ultimately known, the disability rating may be greater. Jensen v. Zook Bros. Const. Co. (1978), 178 Mont. 59, 582 P.2d 1191.

Holton did not address the issue of what to do with the impairment claim when total disability benefits were currently being paid. The context of the opinion, though, suggests that physical impairment is a component of partial disability benefits, and dependent thereupon for legal efficacy. If the claimant is not presently entitled to receive partial disability benefits, Holton does not apply.

Courts in a minority of states have upheld the concurrent payment of permanent total and permanent partial awards, "under the theory that the former is for loss of earning capacity and the latter for physical impairment." Larson, Workers' Compensation Law, section 57.14(f). This trend was begun by the North Dakota court in Buechler v. N.D. Workman's Comp. Bureau (N.D.1974), 222 N.W.2d 858; and Michigan, Redfern v. Sparks-Withington Co. (1978), 403 Mich. 63, 268 N.W.2d 28, 35; Kansas, Cody v. Jayhawk Pipeline Co. (1977), 222 Kan. 491, 565 P.2d 264, 266; Minnesota, compare Pramschiefer v. Windom Hospital (1973), 297 Minn. 212, 211 N.W.2d 365 and Boquist v. Dayton-Hudson Corporation (1973), 297 Minn. 14, 209 N.W.2d 783, with Minn.Stats.Ann. section 176.021 subd. 3 (1984); and...