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Brodie v. Liberty Northwest Insurance Corporation6/1/2001
DECISION AND JUDGMENT
Summary: Claimant worked as a seasonal housekeeper at Big Sky for several years. Her employment was terminated at the end of each season. She was a good employee and was rehired for successive seasons, however, there was no guarantee she would be rehired. She was injured February 25, 1999. The insurer computed her wages based upon her prior year of employment with Big Sky rather than her immediately preceding four pay periods. Her wages for the prior year were substantially less than for the four preceding pay periods. Claimant's treating physician released her to return to work at her job, however, he also ordered a functional capacities evaluation (FCE), indicating that the FCE would be helpful in determining claimant's impairment. The insurer refused to authorize the FCE. Following medical depositions, the insurer agreed that if claimant suffered a wage loss, she is entitled to a 27% permanent partial disability award in addition to an 8% impairment award.
Held: (1) Since claimant's prior employment with Big Sky had been terminated without any guarantee of re-employment during the next season, her wages must be based upon her latest employment, therefore, the last four pay periods must be used. (2) Based upon claimant's last four pay periods, she has suffered a wage loss and is therefore entitled to a 27% permanent partial disability award in addition to the 8% impairment award, both awards to be based upon her time-of-injury wages as determined by her last four pay periods. (3) The insurer's use of the prior year of wages in computing benefits was not unreasonable since the statute concerning wages is not all that clear with respect to the particular circumstances of this case. (4) The insurer's refusal to authorize an FCE was not unreasonable since the FCE was proposed in conjunction with an impairment rating and the evidence fails to establish the necessity of an FCE for an impairment rating.
Topics:
Wages: Average Weekly Wage. Where claimant had been employed on a seasonable basis for several years, but her employment had been terminated at the end of each season, and she was forced to reapply for employment with no guarantee of re-employment, her wages must be computed using her latest employment only. Wages for prior employments may not be considered. § 39-71-123(3).
Statutes: 39-71-123(3), MCA (1997). Where claimant had been employed on a seasonable basis for several years, but her employment had been terminated at the end of each season and she was forced to reapply for employment with no guarantee of re-employment, her wages must be computed using her latest employment only. Wages for prior employments may not be considered. § 39-71-123(3).
Attorney Fees: Unreasonable denial or delay of payment. Where claimant was employed for several years on a seasonal basis, the insurer's use of her prior year's wages in determining benefits was not unreasonable. While the Court interprets section 39-71-123 (1997), as requiring use of wages from the claimant's last employment only, the insurer's application of the exception allowing the use of wages up to a year prior to the injury was not beyond the pale of arguable interpretation of the exception.
Attorney Fees: Unreasonable denial or delay of payment. An insurer's refusal to approve a FCE was not unreasonable where the claimant had been released to work without restrictions, where the FCE was proposed for purposes of rendering an impairment rating, and where no justification for an FCE in connection with an impairment rating was provided.
This matter was tried on May 7, 2001, in Helena, Montana. Petitioner, Marjorie Brodie (claimant),
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