Hensley v. Mont. State Fund

• Decision Date: 16 December 2020
• Docket Number: DA 19-0523
• Parties: Susan HENSLEY, Petitioner and Appellant, v. MONTANA STATE FUND, Respondent and Appellee.
• Court: Montana Supreme Court

402 Mont. 277

477 P.3d 1065

2020 MT 317

Susan HENSLEY, Petitioner and Appellant,

v.MONTANA STATE FUND, Respondent and Appellee.

DA 19-0523

Supreme Court of Montana.

Argued and Submitted: July 8, 2020

Decided: December 16, 2020

For Appellant: E. Kiel Duckworth (argued), Duckworth Law Office, P.C., Ronan, Montana, Matthew J. Murphy (argued), Murphy Law Firm, Great Falls, Montana, Ben A. Snipes, Ross T. Johnson, Kovacich Snipes Johnson, P.C., Great Falls, Montana

For Appellee: Bradley J. Luck (argued), Tessa A. Keller, Garlington, Lohn & Robinson, PLLP, Missoula, Montana, Thomas E. Martello, Montana, State Fund, Helena, Montana

For Amicus Workers’ Injury Law and Advocacy Group: Kathleen G. Sumner, Law Offices of Kathleen G. Sumner, Hampstead, North Carolina, Paul Odegaard, Odegaard Miller Law, PLLC, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Susan Hensley appeals the Workers’ Compensation Court's ("WCC") ruling that § 39-71-703(2), MCA, does not violate her right to equal protection of the law by denying an impairment award to a worker with a Class 1 impairment who has suffered no wage loss. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In January 2012, Hensley suffered a shoulder injury while working as a paramedic for Polson Ambulance. Her duties at the time included heavy-labor reaching and heavy weight-bearing activities. Hensley filed a workers’ compensation claim that month and Montana State Fund ("MSF"), the company's insurer, accepted liability. Hensley's injury left her unable to work from mid-February 2012 through late-May 2013. During that time, Hensley was diagnosed with a glenoid labral tear of her left shoulder, for which she received surgery in March 2012. Hensley received $33,156.81 in medical benefits and $34,169.70 in disability benefits from MSF during this time.

¶3 In mid-May 2013, Hensley's doctor released her to return to work on "full shifts" with "no restrictions on lifting" but with requested back-up for some activities. She returned at the same hourly rate as before the accident. A few weeks later, Hensley was declared at maximum medical improvement ("MMI"), though she continued to report ongoing pain and loss of sensation when engaged in overhead activity. She last saw her treating physician in October 2013 and reported "mild tingling and numbness into the arm, but overall ... feeling good." Hensley since has completed her nursing degree and works full-time as a registered nurse while also continuing to work part-time at Polson Ambulance. Both employers pay her a rate of pay higher than the rate she received when she returned to work in 2013.

¶4 After Hensley reached MMI, her treating physician also assigned her a four percent whole person impairment rating, pursuant to the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment ("Guides "). Hensley's whole person impairment percentage, when considered together with the nature of her injuries, is a Class 1 impairment under the Guides . This classification made Hensley ineligible for an impairment award under § 39-71-703(2), MCA. That statute allows impairment awards for claimants without actual wage loss only if they have a Class 2 or higher impairment rating.

¶5 Hensley petitioned for trial before the WCC in October 2013. She asserted that § 39-71-703(2), MCA, violates the Equal Protection and Due Process Clauses of the Montana Constitution and that the MSF should pay an impairment award for her four percent whole person impairment rating. On the basis of stipulated facts, both parties moved for summary judgment. In an order issued August 22, 2019, the WCC granted MSF's motion for summary judgment and denied Hensley's, ruling that § 39-71-703(2), MCA, does not violate equal protection, and declined to rule on Hensley's due process claim. Hensley appeals, arguing the WCC erred in its determination that § 39-71-703(2), MCA, does not violate the Equal Protection Clause of the Montana Constitution. She does not appeal on the due process claim.¹

STANDARD OF REVIEW

¶6 We review a court's grant of summary judgment de novo. Goble v. Mont. State Fund , 2014 MT 99, ¶ 14, 374 Mont. 453, 325 P.3d 1211. Where there are no genuine issues of material fact, we determine whether the moving party is entitled to judgment as a matter of law. Satterlee v. Lumberman's Mut. Cas. Co. , 2009 MT 368, ¶ 9, 353 Mont. 265, 222 P.3d 566.

¶7 We review for correctness a court's conclusions of law on the constitutionality of a statute. Goble , ¶ 14. "The constitutionality of a legislative enactment is prima facie presumed." Satterlee , ¶ 10 (citing Powell v. State Comp. Ins. Fund , 2000 MT 321, ¶ 13, 302 Mont. 518, 15 P.3d 877 ). The party challenging the constitutionality of a statute bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Goble , ¶ 15 (citing Henry v. State Comp. Ins. Fund , 1999 MT 126, ¶ 11, 294 Mont. 449, 982 P.2d 456 ). We ask not "whether it is possible to condemn, but whether it is possible to uphold" the challenged statute. Satterlee , ¶ 10 (quoting Powell , ¶ 13 ). If any doubt exists, it must be resolved in favor of the statute. Powell , ¶ 13. See also Robinson v. State Comp. Mut. Ins. Fund , 2018 MT 259, ¶ 13, 393 Mont. 178, 430 P.3d 69.

DISCUSSION

¶8 Because the parties stipulated to the facts, the issue is whether the WCC correctly entered judgment as a matter of law that § 39-71-703(2), MCA, is constitutional. We apply the statute in effect in 2012, when Hensley was injured. Goble , ¶ 16. Section 39-71-703, MCA (2011), provides compensation to workers for permanent partial disability. Permanent Partial Disability ("PPD") is defined as:

a physical condition in which a worker, after reaching maximum medical healing:

(a) has a permanent impairment, as determined by the sixth edition of the American medical association's Guides to the Evaluation of Permanent Impairment, that is established by objective medical findings for the ratable condition. The ratable condition must be a direct result of the compensable injury or occupational disease and may not be based exclusively on complaints of pain.

(b) is able to return to work in some capacity but the permanent impairment impairs the worker's ability to work; and

(c) has an actual wage loss as a result of the injury.

Section 39-71-116(27), MCA (2011). A worker has actual wage loss when "the wages that a worker earns or is qualified to earn after the worker reaches maximum healing are less than the actual wages the worker received at the time of the injury." Section 39-71-116(1), MCA (2011).

¶9 Subsection (2) of § 39-71-703, MCA, allows a worker—though ineligible for PPD benefits—to nonetheless receive payment of an impairment award when the worker has no actual wage loss from the injury, but only if the worker receives a Class 2 or greater class of impairment. Subsection (2), which remains unchanged from the 2011 version of the statute, reads in full:

When a worker receives a Class 2 or greater class of impairment as converted to the whole person, as determined by the sixth edition of the American medical association Guides to the Evaluation of Permanent Impairment for the ratable condition, and has no actual wage loss as a result of the compensable injury or occupational disease, the worker is eligible to receive payment for an impairment award only.

Section 39-71-703(2), MCA.

¶10 Section 39-71-703, MCA, is part of Montana's comprehensive workers’ compensation system, which—with few exceptions not applicable here—is the sole method of recovery for workers injured on the job. Section 39-71-411, MCA. The 2011 Legislature enacted a series of changes to the workers’ compensation system through House Bill 334, 62nd Leg., Reg. Sess. (Mont. 2011) ("HB 334"). HB 334 updated to the Sixth Edition the version of the Guides referenced throughout the workers’ compensation statutes and amended § 39-71-703(2), MCA, to limit impairment-only awards to claimants with no actual wage loss and a Class 2 or greater class of impairment. Before then, any claimant with no actual wage loss and an impairment rating was eligible for an impairment award. Section 39-71-703(2), MCA (2009).²

¶11 The Legislature has used the Guides for more than thirty years to establish a worker's impairment rating. See § 39-71-711(1)(b), MCA (1989). Similar to the Fifth Edition of the Guides , the Sixth Edition defines "impairment" as "[a] significant deviation, loss, or loss of use of any body structure or function in an individual with a health condition, disorder, or disease." An "impairment rating" is a "consensus-derived estimate of loss of activity" reflecting the "severity of impairment for a given health condition, and the degre[ ]e of associated limitations in terms of Activities of Daily Living." A "whole person impairment" is a percentage that "estimate[s] the impact of the impairment on the individual's overall ability to perform Activities of Daily Living, excluding work." The whole person impairment rating ranges from normal (0%) to totally dependent on others for care (90+%) to approaching death (100%).

¶12 The Sixth Edition of the Guides introduced the use of standardized Impairment Classes in the determination of a patient's impairment rating. The Guides use these Classes, from zero to four, as part of an injury- or organ-specific impairment grid. The Classes are defined to represent loss of functionality. They "range from level 0 (no functional problem) to level 4 (complete problem with total functional loss)." Class 1 is used for persons with a "MILD problem," described as "[s]ymptoms with strenuous activity; no symptoms with normal activity (independent)." Class 2 is used for persons with a "MODERATE problem," described as "[s]ymptoms with normal activity (independent)." Classes 3 and 4, described as "SEVERE" and "COMPLETE," respectively, are reserved for persons who are either "partially dependent" or "totally dependent" and have progressively more...