IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA 2018 MTWCC 5
WCC No. 2009-2376. ROBERT McCRARY vs. LIBERTY MUTUAL FIRE INSURANCE CO.
DECISION ON STIPULATED FACTS AND JUDGMENT
Summary: Petitioner suffered an industrial injury to his low back in 1977. His PTD rate for this injury is $174, which would be payable for his lifetime under the 1977 WCA. Petitioner subsequently worked in a “sheltered” position with his time-of-injury employer and suffered an industrial injury to his knee in 1983. His PTD rate for this injury is $277, which would be payable until his receipt of Social Security retirement under the 1983 WCA. He returned to work, but his time-of-injury employer went out of business in 1996, and he has not worked since. From 1997 to 2009, Petitioner: asserted that the combination of his back and knee injuries rendered him permanently totally disabled; demanded PTD benefits under his 1983 claim at the rate of $277; acknowledged that such benefits would terminate on his receipt of Social Security retirement benefits; obtained PTD benefits at the $277 rate; obtained attorney fees calculated on a percentage of the PTD benefits he received; and then, after a dispute arose over periods in which Respondent had not paid PTD benefits, obtained a judgment from this Court pursuant to which Respondent was legally obligated to pay PTD at the $277 rate and attorney fees calculated on the amount of PTD benefits awarded. Petitioner and Respondent stipulate that Respondent “has not paid any benefit to which [Petitioner] is not entitled.” However, Petitioner now argues that his back injury was the “actual cause” of his permanent total disability and, therefore, that Respondent should have paid him PTD benefits under his 1977 claim, and that he is now entitled to PTD benefits under his 1977 claim. Respondent argues that Petitioner is estopped from claiming, and waived his asserted right to, PTD benefits for his 1977 claim.
Held: Petitioner waived his claimed right to PTD benefits under his 1977 claim. Petitioner arguably had the right to PTD benefits under his 1977 claim because he thereafter worked in a sheltered job, which is not to be considered when determining whether a claimant is PTD. However, by his express declarations and his course of conduct, Petitioner intentionally and voluntarily acted inconsistently with his asserted right to PTD benefits under his 1977 claim. And, although the parties have agreed that if Petitioner prevails, Respondent would be entitled to a credit in the amount of what would then be deemed an overpayment of PTD benefits, prejudice to Respondent would result if Petitioner was now allowed to obtain PTD benefits under his 1977 claim because Petitioner has not agreed to reimburse Respondent for the attorney fees calculated on the higher rate, nor to provide any compensation to Respondent for the time-value-of money.
Judgment: The equitable doctrine of waiver bars Petitioner from receiving PTD benefits after the age of retirement, as the result of his October 17, 1977, industrial injury to his back. Pursuant to ARM 24.5.348(2), this Judgment is certified as final and, for purposes of appeal, shall be considered as a notice of entry of judgment.
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