IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA 2017 MTWCC 21
WCC No. 2017-3948. ALAN DAVIS vs. LIBERTY INSURANCE CORPORATION.
EMPLOYMENT RELATIONS DIVISION, DEPARTMENT OF LABOR AND INDUSTRY Intervenor.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
Summary: Petitioner settled his indemnity benefits with insurer on a disputed liability basis, and reserved his future medical benefits. Thereafter, insurer declined to authorize a referral for Petitioner to see his surgeon, citing the five-year medical closure rule in § 39- 71-704(1)(f)(i), MCA. Petitioner contends that he is entitled to ongoing medical benefits pursuant to § 39-71-704(1)(f)(ii), MCA, because he is permanently totally disabled.
Held: Where the vocational rehabilitation expert was unable to point to any suitable jobs for Petitioner, and given Petitioner’s older age, modest education, limited transferable skills, near-constant and high levels of pain, poor prognosis, and co-existing health conditions, Petitioner has met his burden of proving that he does not have a reasonable prospect of physically performing regular employment. Because he is permanently totally disabled, Petitioner is entitled to ongoing medical benefits pursuant to § 39-71- 704(1)(f)(ii), MCA.
Judgment: This Court did not err in ruling that, for purposes of establishing his entitlement to ongoing medical benefits under § 39-71-704(1)(f)(ii), MCA (2011), Davis had the burden of proving that he is permanently totally disabled. Davis has met his burden of proving that he is permanently totally disabled and therefore established his entitlement to ongoing medical benefits under § 39-71- 704(1)(f)(ii), MCA (2011). Accordingly, the five-year medical closure rule in § 39-71-704(1)(f)(i), MCA (2011), does not apply to Davis, and his constitutional challenge is moot.
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