Hensley v. Mont. State Fund

• Court: Montana Workers Compensation Court
• Writing for the Court: DAVID M. SANDLER JUDGE
• Citation: Hensley v. Mont. State Fund, 2019 MTWCC 12, WCC No. 2013-3235 (Mont. Work. Comp. Aug 22, 2019)
• Decision Date: 22 August 2019
• Docket Number: WCC No. 2013-3235
• Parties: SUSAN HENSLEY Petitioner v. MONTANA STATE FUND Respondent/Insurer.

2019 MTWCC 12

SUSAN HENSLEY Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

WCC No. 2013-3235

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: February 17, 2015
August 22, 2019

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT

Summary: Upon reaching MMI for her shoulder injury, Petitioner returned to work without an actual wage loss. She received a 4% whole person impairment rating, which is a Class 1 impairment under the AMA Guides, 6^th Ed. Respondent did not pay her an impairment award because § 39-71-703(2), MCA (2011), does not provide for the payment of impairment awards if an injured worker's impairment is rated as a Class 1 impairment and the worker suffers no actual wage loss. Because this statute provides that an injured worker with a Class 2, 3, or 4 impairment without a wage loss has a right to an impairment award, Petitioner asserts it is facially unconstitutional under the equal protection clause in Mont. Const. art. II, § 4. Petitioner also asserts that by denying her a remedy for her permanent injury, § 39-71-703(2), MCA (2011), violates her right to due process under Mont. Const. art. II, § 17.

Held: Section 39-71-703(2), MCA (2011), is not facially unconstitutional under the equal protection clause because a claimant with a Class 1 impairment rating is not similarly situated to a claimant with a Class 2, 3, or 4 impairment rating due to the difference in the severity and frequency of their symptoms and functional limitations. And, nevertheless, there is a rational basis for treating these classes differently. This Court does not address Petitioner's due process claim because this Court cannot grant her the remedy she seeks, which is payment of an impairment award.

¶1 Petitioner Susan Hensley challenges Respondent Montana State Fund's (State Fund) denial of liability for an impairment award under § 39-71-703(2), MCA (2011), which provides that a claimant with a Class 1 impairment under the AMA Guides, 6^th Ed. and no

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wage loss, is not entitled to an impairment award while a claimant with a Class 2, 3, or 4 impairment and no wage loss is entitled to an impairment award. Hensley asserts that this provision violates her right to equal protection under Mont. Const. art. II, § 4, and her right to due process under Mont. Const. art. II, § 17. State Fund asserts that under the entire framework of the 2011 Workers' Compensation Act (WCA), § 39-71-703, MCA, is constitutional. For the reasons that follow, this Court agrees with State Fund and grants its summary judgment motion and denies Hensley's summary judgment motion.

History of Montana's Reliance upon the Guides to the Evaluation of Permanent Impairment to Calculate Impairment Awards

¶2 As part of the 1987 reforms to the WCA, the Legislature provided for an impairment award,¹ which was based on the whole person impairment rating under the "current edition of the Guides to Evaluation of Permanent Impairment published by the American Medical Association,"² (the Guides), a book that provides physicians with a method to rate the level of impairment an injury or disease has caused a person. At the time, the "current edition" of the Guides was the 2^nd edition. The level of impairment is expressed as a percentage, which is deemed the "whole person impairment" rating.

¶3 The AMA Guides, 5^th Ed., which was the current edition of the Guides from 2000 to 2008, defines "impairment" as: the "loss, loss of use, or derangement of any body part, organ system, or organ function."³ The AMA Guides, 5^th Ed., defines "impairment percentages or ratings" as, "[c]onsensus-derived estimates that reflect the severity of the impairment and the degree to which the impairment decreases an individual's ability to perform common activities of daily living . . . ."⁴ The AMA Guides, 5^th Ed., defines "whole person impairment," as "[p]ercentages that estimate the impact of the impairment on the individual's overall ability to perform activities of daily living, excluding work."⁵

¶4 Under § 39-71-703 and -711, MCA (1987-2009), a physician would assign a whole person impairment rating under the current edition of the Guides when a claimant reached maximum medical improvement (MMI), the "point in the healing process when further material improvement would not be reasonably expected from primary medical

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treatment."⁶ The amount of the claimant's impairment award was calculated by taking the claimant's whole person impairment rating, which is expressed in terms of a percentage, and multiplying it by the maximum number of weeks for permanent partial disability (PPD) benefits, as set forth in the applicable version of § 39-71-703, MCA, for the claimant's date of injury, and then multiplying the number of weeks by the claimant's PPD rate. The product was the monetary value of the claimant's impairment award. For example, a claimant who had a 4% whole person impairment rating under the 2009 WCA, with the maximum PPD rate of $302 for Fiscal Year 2009, had the right to an impairment award in the amount of $4,530.⁷

¶5 The Montana Supreme Court has explained that the purpose of an impairment award is to compensate the injured worker for a loss of function to her body:

Impairments awards are based on a worker's impairment rating, which is a purely medical determination of the loss of physical function of the body caused by the injury. § 39-71-711, MCA (1991 and 1997). The impairment rating is the physical component on which the disability is based. Disability benefits compensate the worker for losses related to their inability to work. An impairment award is paid to compensate the worker for the loss of physical function of his or her body, which may have ramifications beyond just the workers' ability to return to work.⁸

¶6 Under the WCA from 1987 through 2009, an injured worker who could return to regular employment who received a whole person impairment rating had the right to an impairment award, even if she did not suffer an actual wage loss.⁹ For example, § 39-71-703(2), MCA (2009), states:

When a worker receives an impairment rating as the result of a compensable injury and has no actual wage loss as a result of the injury, the worker is eligible for an impairment award only.

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¶7 In 2008, the American Medical Association published the AMA Guides, 6^th Ed.¹⁰ Under § 39-71-711(1)(b), MCA (2007-2009) — which provides that impairment rates "must be based on the current edition of the Guides to Evaluation of Permanent Impairment published by the American medical association" — the AMA Guides, 6^th Ed., became the standard to use when calculating a claimant's impairment rating for claimants who reached MMI after the date of publication.¹¹

¶8 The AMA Guides, 6^th Ed.'s, definitions of "impairment," "impairment rating," and "whole person impairment" are similar to those in the AMA Guides, 5^th Ed. The AMA Guides, 6^th Ed., 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.¹²

The AMA Guides, 6^th Ed., defines "impairment rating" as:

Consensus-derived percentage estimate of loss of activity, which reflects severity of impairment for a given health condition, and the [degree] of associated limitations in term[s] of Activities of Daily Living (ADLs).¹³

And, the AMA Guides, 6^th Ed., defines "whole person impairment" as:

Percentages that estimate the impact of the impairment on the individual's overall ability to perform Activities of Daily Living, excluding work.¹⁴

The AMA Guides, 6^th Ed., explains, "The whole person impairment is a percentage based on a consensus of opinion from multidisciplinary medical specialties and cumulative experience. The whole person impairment rating ranges from normal (0%) to totally dependent on others for care (90+%) to approaching death (100%).¹⁵

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¶9 Unlike the earlier editions, the AMA Guides, 6^th Ed., contains "Impairment Classification Grids," under which whole person impairments are placed into one of five classes based upon the severity of the person's loss of function for the condition at issue. The goal of the classification system is to "yield maximal internal consistency of impairment ratings across organ systems."¹⁶

¶10 Table 1-5 in the 6^th edition is the "Generic Template for Impairment Classification Grids," which is the format used throughout the AMA Guides, 6^th Ed., for the classification system. A copy of this table is attached as Appendix A.

¶11 In this table, the lowest class in the Impairment Classification Grids is Class 0, which includes those who are asymptomatic, or who have "intermittent symptoms that do not require treatment." A person assigned a Class 0 impairment will have a 0% whole person impairment rating.

¶12 In terms of increased severity of the impairment, the next class is Class 1. A person with a Class 1 impairment will have "[s]ymptoms controlled with continuous treatment" or "intermittent, mild symptoms despite continuous treatment." On physical examination, a person with a Class 1 impairment will have "[p]hysical findings not present with continuous treatment" or "intermittent, mild physical findings." A person with a Class 1 impairment will either have no objective evidence of injury or "intermittent mild abnormalities." For a musculoskeletal injury, a person with a Class 1 impairment will have "[p]ain/symptoms with strenuous/vigorous activity" and be "[a]ble to perform self-care activities independently." In general terms, a person with a Class 1 impairment will have a "minimal" whole person impairment rating.

¶13 A person with a Class 2 impairment will have, "[c]onstant mild symptoms despite continuous treatment" or "intermittent, moderate symptoms despite continuous treatment." On physical examination, a person with a Class 2 impairment will have "[c]onstant mild physical findings despite continuous treatment" or "intermittent moderate...