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Schmill v. Liberty Northwest Insurance Corp.6/22/2001
s from an occupational disease. Her occupational disease claim was accepted by Liberty Northwest Insurance Corporation (Liberty), which insured her employer when the claim was made.
B Claimant sought an impairment award with respect to her condition. Liberty denied the request.
C On May 22, 2001, this Court issued its decision in Stavenjord v. State Compensation Ins. Fund, 2001 MTWCC 25, in which it held that where permanent partial disability benefits available to a claimant under the Montana Workers' Compensation Act are greater than the benefits available under section 39-72-405, MCA, to a permanently partially disabled worker suffering from an occupational disease, constitutional equal protection guarantees require that benefits be computed and paid in accordance with the Workers' Compensation Act.
D Following the decision in Stavenjord, Liberty agreed to pay the claimant an impairment award, however, applying the apportionment provision in section 39-72-706, MCA, reduced the award by 20%, which is the percentage of claimant's occupational disease attributable to non-occupational factors.
E Claimant does not have an actual wage loss attributable to her occupational disease.
Issue
The parties have agreed that the only issue presented for decision is the constitutionality of the apportionment provision set forth in section 39-72-706, MCA, as applied to both the impairment award and temporary total disability benefits previously paid to claimant. As stated by the parties:
he remaining issue before the Court in this case is whether Liberty is entitled to reduce its payment of the impairment award by 20% under the apportionment statute and whether Liberty, if it may not apportion, must not only pay the additional 20% on the impairment award but also the additional 20% that was withheld from the claimant's TTD payments. (Stipulation for Submission on Agreed Facts at 2.)
The stipulation supercedes the pleadings and the Court will therefore address the issue as stated.
Discussion
The issue in this case is the constitutionality of section 39-72-706(1), MCA (1989-1999), which requires apportionment between occupational and non-occupational factors in determining benefits under the Occupational Disease Act. The section provides:
39-72-706. Aggravation. (1) If an occupational disease is aggravated by any other disease or infirmity not itself compensable or if disability or death from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable under this chapter must be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease as a causative factor bears to all the causes of such disability or death.
As applied in the present case, claimant's benefits were reduced by 20%, which is the amount the parties agree is the percentage by which non-occupational factors contributed to claimant's condition. Under the Workers' Compensation Act (WCA) there is no corresponding provision for reducing workers' compensation benefits based on non-occupational factors.
In Stavenjord v. State Compensation Ins. Fund, 2001 MTWCC 25, I held that where the permanent partial disability benefits available to a claimant under the Montana Workers' Compensation Act are greater than the benefits available under section 39-72-405, MCA, to a similarly situated worker suffering from an occupational disease, constitutional equal protection gua
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