Over the last three decades the U.S. Constitution has furnished the rationale for decision in a growing group of workers' compensation cases in Montana. Workers' compensation benefits have been fine-tuned to the requirements of the Constitution's equal protection and due process clauses.
Constitutional litigation from the worker's perspective has resulted in 1) improving benefits for persons suffering from occupational diseases, 2) granting additional benefits (impairment awards) previously denied to persons permanently totally disabled, and 3) improving benefits for working seniors. All this has occurred while the Montana legislature has been scaling back benefits in every biennial legislative session since 1987.
Constitutional rulings on the Occupational Disease Act (ODA):
Henry v. State Fund was the first successful challenge to the stark differences between the Workers' Compensation Act and the Occupational Disease Act. The issue in Henry arose from the 1987 Montana legislature's redefinition of "injury". Under the new definition, the only difference between an occupational disease and an injury was that an injury had to occur on a single day, in a single work shift, at a particular moment in time, while a work-related "occupational disease" became any injury that took more than one day to develop. Previous occupational disease (OD) definitions, which focused the meaning of "occupational disease" on particular types of maladies, were thrown out.
In Henry, the Montana Supreme Court used the 1987 definition change to put occupational disease (OD) sufferers and injury victims on the same constitutional footing, and rehabilitation benefits that had been denied to OD sufferers were held constitutionally mandated for OD cases to the same extent as in WC cases.
Then in Stavenjord v. State Fund, the court held that a compensation cap applicable to OD sufferers but not injury victims was unconstitutional. OD partial disability benefits had been capped at $10,000.00, while workers' comp benefits could rise to $30,000.00 or more, and the court determined that there was no rational basis for the distinction.
In Schmill v. Liberty Northwest, the final large difference in the Occupational Disease Act was tossed out when it was determined that OD sufferers and injury victims in work-related matters should be in the same position with regard to apportionment of causation. Historically, the Occupational Disease Act (ODA) had allowed only a fractional share of damages to the OD sufferer in situations where non-work factors were partially to blame for the symptoms. This reduction of benefits for non-work-related conditions was absent from the workers' compensation act, and the court determined that there was no rational basis for the distinction between the two programs.
Denial of Impairment ratings to the Permanently Totally Disabled
In Rausch I, the Workers' Compensation Court had held that the denial of an impairment award to PTD (permanent total) claimants did not violate the equal protection clause. On appeal, the supreme court avoided the constitutional question but concluded based on a review of statutes that PTD claimants were entitled to an impairment award for the loss of physical functioning resulting from work-related injuries under recent versions of the Act, and that the award was payable upon receipt of an undisputed impairment rating.
In Rausch III, however, the supreme court declined to apply equal protection principles to backdate its ruling in Rausch I, noting that PPD (permanent partial) and PTD (permanent total) benefits are different; PPD compensates for a partial disability by a smaller impairment award, and supplements the wages earned by the claimant upon return to work, whereas PTD benefits do not contemplate a return to work, but, rather, give a continuous, higher benefit which is paid over the work life of the totally disabled claimant. The court then concluded that PPD claimants and PTD claimants are not similarly situated, and that the claimant's equal protection challenge to the failure to pay an impairment award to PTD claimants failed.
Constitutional rulings on the Retirement statute
More recently, the focus has been on the retirement benefits statute. In Reesor v. State Fund, the supreme court held that there was no rational basis for denying to a 65-year-old worker an impairment award when a 40 year-old worker who received the same injury would be entitled to it. Reaching retirement age was held to not be a rational basis for distinguishing between claimants on impairment awards.
The result was different in Satterlee v. Lumbermen's Mutual, where the court held that termination of cash benefits to permanently totally disabled workers at retirement age was not unconstitutional, as federal social security benefits kick in at that time, and the termination of wage replacement benefits in coordination with social security was a rational means of achieving wage replacement. The difference in character between PPD (permanent partial) and PTD (permanent total) was at the heart of the constitutional analysis, just as it was in Rausch I.
Most recently, in Caldwell v. MACO Workers Compensation Trust, the Montana Supreme Court held that it was unconstitutional to deny a component of the partial disability benefit, rehabilitation benefits, to a retiree. Just as certain other partial disability benefits were payable to a retiree, so rehabilitation benefits should likewise be paid.
The Quid Pro Quo - the next constitutional challenge?
Certain types of injuries have long been opposed by workers compensation insurers. Mental shock, short term chemical exposures, pulmonary and heart trauma are examples. In Stratemeyer v. MACO Workers Compensation Trust, the Supreme Court held that the exclusion in workers compensation of mental claims for such things as PTSD rationally relates to the reduction of costs in the workers' compensation field. Disallowing mental and/or emotional stress claims occurring without a physical component, while quite unfortunate for some, did not, the Montana Court said in 1993, violate equal protection of the law.
In Stratemeyer the court noted that the workers compensation system's quid pro quo, where workers give up the chance at large-scale damages in exchange for a reliable wage replacement and medical coverage system was not violated by cutting off mental claims. But the question remains, what type of scale-backs in benefits will cross the line and be held to violate the "quid pro quo"?
Now there are new restrictions in the workers compensation system enacted by the 2011 Montana legislature. Among other things the new laws purport to take away the injured worker's personal choice of physician and allow the insurer to pick the worker's treating physician.
Also, the 2011 legislation eliminates impairment benefits for an estimated 50% of workers that were previously getting benefits for permanent physical impairments caused by workplace injuries.
These changes will spur more constitutional challenges, just as previous restrictions have done. Will this result in one or more due process or equal protection adjustments? It seems likely. Stay tuned. And for more information on workers compensation in Montana, contact us at call our office at (406) 728-4682, or contact us through our website at www.howardtoolelaw.net.
Wednesday, August 24, 2011
Thursday, August 11, 2011
Products Liability and Remington Arms Co
Remington Arms Co. has been manufacturing the model 700 series rifle for more than half a century. It has caused a number of injuries and deaths from inadvertent firing. Despite this, for the last fifty years it has been the most popular mainstream hunting rifle in the United States.
As these rifles get older, the risk of injury worsens. The defect is in the trigger design, which is inherently unstable. In 1975 Remington identified a number of different circumstances in which inadvertent firing could occur: 1) firing "FSR" (fires when safe is released), "JO" (jars off), the hammer fails to stay engaged with the sear and falls down when the gun is jarred), "FD" (falls down, cocking piece fails to properly engage with the sear), "FOS" (fires on safe–gun fires with safe in on position when trigger is pulled), and "SWW" (safety won't work).
The "inadvertent firings" have been unpredictable, and Remington has never conducted a nationwide recall of the Model 700 nor has it acknowledged that its Model 700 trigger design is unsafe. In the last few years Remington has offered both a trigger modification for older 700s and a different trigger as an option on new 700s, but at least until recently it has continued to offer the hazardous old trigger on new 700s for sale.
In the Brandenburger case, Montana adopted a national standard (Restatement of Torts 2d, §402A), for liability resulting from harm caused by defective and unreasonably dangerous products. This standard was codified in section 27-1-719, MCA, which states:
A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his property if:
(a) the seller is engaged in the business of selling such a product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Products liability cases are controversial across the nation. This lawyer's perspective, widely shared in the legal profession, is that business entities that produce defective and dangerous products must accept responsibility for injuries when those products cause injury. Strict liability for injuries caused by defective and unreasonably dangerously products has been responsible for many of the improvements in American life. The safety of goods for sale to the public is no longer an extra benefit, but an expectation everyone has from modern civilization. America has been the leader in world commerce in large part because of a legal system that has proved that safety is inexpensive and good business.
But now in the 21st century corporate America, which dominates the world of employment and finance, fights the need for corporate responsibility. "Tort reform," which creates barricades to the courthouse door and barriers to the judicial process, remains on the rise.
Remington Arms has sold many millions of dollars worth of the model 700 series rifle, its main hunting rifle. It has known about the trigger defect throughout all the years that the weapon has been on the market, and, in fact, the original designer of the trigger suggested an alternative design for it in the 1940's before the gun was even placed on the market. The alternative was rejected. Profit came ahead of safety, and lives have been damaged or lost as a result. CNBC recently did a special broadcast of the dangers of the 700's trigger problem and the injuries and deaths it has caused.
For further information about the Remington matter or products liability cases in general, contact Howard Toole Law Offices, (406) 728-4682 or howardtoolelaw@yahoo.com.
As these rifles get older, the risk of injury worsens. The defect is in the trigger design, which is inherently unstable. In 1975 Remington identified a number of different circumstances in which inadvertent firing could occur: 1) firing "FSR" (fires when safe is released), "JO" (jars off), the hammer fails to stay engaged with the sear and falls down when the gun is jarred), "FD" (falls down, cocking piece fails to properly engage with the sear), "FOS" (fires on safe–gun fires with safe in on position when trigger is pulled), and "SWW" (safety won't work).
The "inadvertent firings" have been unpredictable, and Remington has never conducted a nationwide recall of the Model 700 nor has it acknowledged that its Model 700 trigger design is unsafe. In the last few years Remington has offered both a trigger modification for older 700s and a different trigger as an option on new 700s, but at least until recently it has continued to offer the hazardous old trigger on new 700s for sale.
In the Brandenburger case, Montana adopted a national standard (Restatement of Torts 2d, §402A), for liability resulting from harm caused by defective and unreasonably dangerous products. This standard was codified in section 27-1-719, MCA, which states:
A person who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his property if:
(a) the seller is engaged in the business of selling such a product; and
(b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Products liability cases are controversial across the nation. This lawyer's perspective, widely shared in the legal profession, is that business entities that produce defective and dangerous products must accept responsibility for injuries when those products cause injury. Strict liability for injuries caused by defective and unreasonably dangerously products has been responsible for many of the improvements in American life. The safety of goods for sale to the public is no longer an extra benefit, but an expectation everyone has from modern civilization. America has been the leader in world commerce in large part because of a legal system that has proved that safety is inexpensive and good business.
But now in the 21st century corporate America, which dominates the world of employment and finance, fights the need for corporate responsibility. "Tort reform," which creates barricades to the courthouse door and barriers to the judicial process, remains on the rise.
Remington Arms has sold many millions of dollars worth of the model 700 series rifle, its main hunting rifle. It has known about the trigger defect throughout all the years that the weapon has been on the market, and, in fact, the original designer of the trigger suggested an alternative design for it in the 1940's before the gun was even placed on the market. The alternative was rejected. Profit came ahead of safety, and lives have been damaged or lost as a result. CNBC recently did a special broadcast of the dangers of the 700's trigger problem and the injuries and deaths it has caused.
For further information about the Remington matter or products liability cases in general, contact Howard Toole Law Offices, (406) 728-4682 or howardtoolelaw@yahoo.com.
Tuesday, August 9, 2011
Negligence Claims against Multiple Defendants
In negligence cases (car accidents, slip and falls, and most injury cases), a Montana jury compares the carelessness of the defendant against the claimed negligence of the plaintiff, and the plaintiff has no recovery if the share of his/her negligence exceeds that of the defendant(s).
In some cases, more than one defendant is negligent. The state may negligently design a section of road, and a defendant's negligent driving may combine with the state's negligent design to injure the plaintiff. In such a case, Montana requires the negligence of all defendants to be determined. The question then arises: what if one potential defendant is not sued, because of a settlement, an immunity, or a desire to simply leave the person alone? Montana has wrestled with this problem for over 20 years. The current solution allows the plaintiff to sue, the defendant(s) to point the finger at the others (including the plaintiff), and a minor contributor to avoid responsibility for all but his or her share of the plaintiff's damages. The solution is in section 27-1-703, MCA.
That code section says that defendants are jointly and severally liable, except a defendant whose negligence is less than 50% is only severally liable. What does this mean? Joint and several liability is a nationally controversial issue. Insurance companies want to limit their liability and insist that no defendant should have to pay for more than his or her percentage of fault. Limiting a defendant's liability to such a fault percentage is what "several" liability does. "Joint" liability, on the other hand, makes a defendant liable for all of a plaintiff's injuries without regard to percentages of fault.
The Montana statute allows multiple defendants to be brought into a lawsuit, by either a plaintiff or by other defendants, and at trial the jury is mandated to determine the percentage of fault in a negligence case of all defendants, including would-be defendants. Montana allows "contribution" where a defendant(s) cannot or is unavailable to pay his or her share.
The big controversy in Montana has been about what to do about absent defendants, the persons not sitting in the "empty chair" in the courtroom during a jury trial. This "empty chair" has occupied significant time and legal talent in the 30-plus years since Montana adopted comparative negligence. Twice the Montana Supreme Court has struck down the statute that mandates determination of the liability of parties who are not sitting in the empty chairs, on grounds that the liability of such parties cannot be determined fairly and constitutionally in their absence. The Court's decisions have guided legislative efforts which now allow "empty chairs" to be filled by any potential defendants except those who have settled, those who are immune, those who are not subject to the Court's jurisdiction, and those who could have been, but were not, named as defendants.
Under the current formula, only those who can be corralled into a judgment at the time of trial are subject to the allocation of responsibility by the jury.
This solomonic solution has held together since the 1996 decision of Plumb v. District Court. The challenge of coming to terms with this problem mirrors the challenge facing the Montana bar and judiciary in the areas of subrogation and allocation of negligence. These complex areas are just another reason that competent legal representation is essential in any injury claim.
For strong and effective representation in any kind of negligence case, contact Howard Toole Law Offices, (406) 728-4682, or view our website at www.howardtoolelaw.net.
In some cases, more than one defendant is negligent. The state may negligently design a section of road, and a defendant's negligent driving may combine with the state's negligent design to injure the plaintiff. In such a case, Montana requires the negligence of all defendants to be determined. The question then arises: what if one potential defendant is not sued, because of a settlement, an immunity, or a desire to simply leave the person alone? Montana has wrestled with this problem for over 20 years. The current solution allows the plaintiff to sue, the defendant(s) to point the finger at the others (including the plaintiff), and a minor contributor to avoid responsibility for all but his or her share of the plaintiff's damages. The solution is in section 27-1-703, MCA.
That code section says that defendants are jointly and severally liable, except a defendant whose negligence is less than 50% is only severally liable. What does this mean? Joint and several liability is a nationally controversial issue. Insurance companies want to limit their liability and insist that no defendant should have to pay for more than his or her percentage of fault. Limiting a defendant's liability to such a fault percentage is what "several" liability does. "Joint" liability, on the other hand, makes a defendant liable for all of a plaintiff's injuries without regard to percentages of fault.
The Montana statute allows multiple defendants to be brought into a lawsuit, by either a plaintiff or by other defendants, and at trial the jury is mandated to determine the percentage of fault in a negligence case of all defendants, including would-be defendants. Montana allows "contribution" where a defendant(s) cannot or is unavailable to pay his or her share.
The big controversy in Montana has been about what to do about absent defendants, the persons not sitting in the "empty chair" in the courtroom during a jury trial. This "empty chair" has occupied significant time and legal talent in the 30-plus years since Montana adopted comparative negligence. Twice the Montana Supreme Court has struck down the statute that mandates determination of the liability of parties who are not sitting in the empty chairs, on grounds that the liability of such parties cannot be determined fairly and constitutionally in their absence. The Court's decisions have guided legislative efforts which now allow "empty chairs" to be filled by any potential defendants except those who have settled, those who are immune, those who are not subject to the Court's jurisdiction, and those who could have been, but were not, named as defendants.
Under the current formula, only those who can be corralled into a judgment at the time of trial are subject to the allocation of responsibility by the jury.
This solomonic solution has held together since the 1996 decision of Plumb v. District Court. The challenge of coming to terms with this problem mirrors the challenge facing the Montana bar and judiciary in the areas of subrogation and allocation of negligence. These complex areas are just another reason that competent legal representation is essential in any injury claim.
For strong and effective representation in any kind of negligence case, contact Howard Toole Law Offices, (406) 728-4682, or view our website at www.howardtoolelaw.net.
Tuesday, July 26, 2011
Auto Insurance - An Overview
Liability Insurance. In Montana, automobile liability insurance is required by law, § 61-6-103, MCA. The minimum limits for mandatory coverages are $25,000.00 per injured person and $50,000.00 per accident where more than one person is injured.
Under Montana law, liability insurance is called upon to pay medical and other out-of-pocket losses when they are incurred. Under Ridley v. Guaranty National Ins. Co., insurers must pay "settlements" on claims as they are made. Medical bills and loss of wages for injured parties can be catastrophic and this court decision offers protection; but Ridley does not apply when there is an argument about liability. As a result, insurance companies often refuse to pay these out-of-pocket costs for injured parties. Legal representation is essential to get through these disputes.
Uninsured Motorist. Under Montana law, every insurer must make available uninsured motorist coverage (UM) as an option on auto policies. The policy limits for UM parallel those for mandatory liability: $25,000.00/$50,000.00. No automobile owner is required to have uninsured motorist insurance, but we believe everyone should. (See § 33-23-201, MCA.) Where the careless driver who hits you has no auto insurance, you need your own uninsured motorist coverage to fall back on.
Medical Payments. Another type of automobile insurance coverage that everyone should have for their protection is medical payments coverage. Medical payments are available "no fault" to any injured person, including persons that the at-fault driver may injure. This coverage is optional, but it is important for everyone since it serves as a protective coverage for injured persons who may not be able to access liability coverage or uninsured motorist coverage.
Underinsured Motorist. Another type of automobile coverage is underinsured motorist coverage (UIM). UIM is intended to provide additional coverage where, in a given accident situation, the limits of liability of available insurances coverages are inadequate.
Underinsured motorist coverage is not mandated in Montana and is not mentioned in statutes. The coverage has been extensively argued about in court, however. Insurance companies have offered this coverage in given amounts and in bait and switch tactics have written the coverages such that the face amounts of the policy are not ever available. This problem has been largely worked out through court decisions, but injured persons who do not have legal representation are at risk of receiving less than the policy should provide.
Contract and Tort Theories. The legal theories that apply to liability insurance differ from those that apply to uninsured motorist and underinsured motorist insurance. A person who buys UM or UIM coverage has a contract with an insurance company to pay damages. This contract affects the defenses of the insurance company in certain situations. This distinction is buried in the legal approaches to auto insurance in litigation, and most people are not aware of it. Wherever a question of coverage or the extent of benefits available under a UM or UIM policy exists, legal representation is essential.
Stacking. "Stacking" is a critical concept to get the full benefit to which an accident victim may be entitled in automobile insurance. In Montana, multiple coverages for more than one vehicle are often able to be added together to increase the amount of monies available to a person injured by a careless driver. These rules are complex and riddled with exceptions. Insurance companies doing business in Montana have typically rejected the requirement to stack coverages where more than one automobile is insured. This is another area where legal representation is essential.
The law of automobile insurance has grown to be the most crucial area in automobile accident claims. Most of the rules are created by insurance companies in the manner in which they have written their insurance policies. Courts and the legal system have the obligation to enforce the policies and require insurance companies to provide the benefits that they claimed to offer. Legal representation to understand the details of insurance disputes in automobile accident litigation is essential. For quality representation in this area, call our office at (406) 728-4682 or send a message through our website at www.howardtoolelaw.net.
Under Montana law, liability insurance is called upon to pay medical and other out-of-pocket losses when they are incurred. Under Ridley v. Guaranty National Ins. Co., insurers must pay "settlements" on claims as they are made. Medical bills and loss of wages for injured parties can be catastrophic and this court decision offers protection; but Ridley does not apply when there is an argument about liability. As a result, insurance companies often refuse to pay these out-of-pocket costs for injured parties. Legal representation is essential to get through these disputes.
Uninsured Motorist. Under Montana law, every insurer must make available uninsured motorist coverage (UM) as an option on auto policies. The policy limits for UM parallel those for mandatory liability: $25,000.00/$50,000.00. No automobile owner is required to have uninsured motorist insurance, but we believe everyone should. (See § 33-23-201, MCA.) Where the careless driver who hits you has no auto insurance, you need your own uninsured motorist coverage to fall back on.
Medical Payments. Another type of automobile insurance coverage that everyone should have for their protection is medical payments coverage. Medical payments are available "no fault" to any injured person, including persons that the at-fault driver may injure. This coverage is optional, but it is important for everyone since it serves as a protective coverage for injured persons who may not be able to access liability coverage or uninsured motorist coverage.
Underinsured Motorist. Another type of automobile coverage is underinsured motorist coverage (UIM). UIM is intended to provide additional coverage where, in a given accident situation, the limits of liability of available insurances coverages are inadequate.
Underinsured motorist coverage is not mandated in Montana and is not mentioned in statutes. The coverage has been extensively argued about in court, however. Insurance companies have offered this coverage in given amounts and in bait and switch tactics have written the coverages such that the face amounts of the policy are not ever available. This problem has been largely worked out through court decisions, but injured persons who do not have legal representation are at risk of receiving less than the policy should provide.
Contract and Tort Theories. The legal theories that apply to liability insurance differ from those that apply to uninsured motorist and underinsured motorist insurance. A person who buys UM or UIM coverage has a contract with an insurance company to pay damages. This contract affects the defenses of the insurance company in certain situations. This distinction is buried in the legal approaches to auto insurance in litigation, and most people are not aware of it. Wherever a question of coverage or the extent of benefits available under a UM or UIM policy exists, legal representation is essential.
Stacking. "Stacking" is a critical concept to get the full benefit to which an accident victim may be entitled in automobile insurance. In Montana, multiple coverages for more than one vehicle are often able to be added together to increase the amount of monies available to a person injured by a careless driver. These rules are complex and riddled with exceptions. Insurance companies doing business in Montana have typically rejected the requirement to stack coverages where more than one automobile is insured. This is another area where legal representation is essential.
The law of automobile insurance has grown to be the most crucial area in automobile accident claims. Most of the rules are created by insurance companies in the manner in which they have written their insurance policies. Courts and the legal system have the obligation to enforce the policies and require insurance companies to provide the benefits that they claimed to offer. Legal representation to understand the details of insurance disputes in automobile accident litigation is essential. For quality representation in this area, call our office at (406) 728-4682 or send a message through our website at www.howardtoolelaw.net.
Settlement of Benefits
Impairment Rating. Workers' compensation cash benefits ( medical benefits) are geared to a worker's return to work. In order for any cash settlement to be available, there must be an "impairment," which is a concept defined by the American Medical Association. If there is an impairment, a percentage impairment rating is assigned by a doctor, either your doctor or, more likely, by a doctor who does impairment evaluations as part of his practice.
Impairment Amount. A modest of impairment of 1% - 5% will trigger an analysis of wage loss. Wage loss is calculated based upon the number of dollars per hour lost between what the worker earns or is capable of earning after reaching maximum medical improvement and what the worker was earning during the four pay periods prior to injury.
.Wage Loss. This can add up to 20% if the actual wage loss is more than $2.00 per hour.
Age and Education. These are factors included for older workers or workers who have completed less than 12 years of education and do not have a GED (39-71-703, MCA).
Wage loss, impairment percentage, physical restrictions (up to 5%), age, and education factors are combined in determining an "indemnity" cash settlement for an injured worker who has an impairment which is established by objective medical findings and is not based solely on pain, 39-71-703(1)(b), MCA.
Temporary Total Disability (TTD). These are payments are made during the period that the worker is taken off work by medical orders in order to undergo treatment and recuperation from an injury. This is two-thirds of the wages received at the time of injury. Although this two-thirds fraction is a substantial reduction from wages earned at the time of injury, they are non-taxable.
These benefits are paid until the treating physician releases the worker to the same, alternative, or modified position with the same employer at an equivalent or higher wage, 39-71-701(4), MCA.
Permanent Total Disability (PTD). In catastrophic injury cases where the worker cannot return to any work, permanent total disability is paid. Frequently social security disability cash benefits are payable at the same time. Both programs are not required to pay the full amount of benefits when the other program is participating. There is an offset provided for by law in each case. In Montana workers' compensation, the offset is 50% of the benefit if social security is paying the full amount of its benefit. A different formula applies if the Montana workers' compensation insurer is paying 100% of its benefit and social security disability kicks in later on.
When a partial disability case settles, the cash benefits are defined in amount and are usually paid in a lump sum. Such a settlement cannot normally be reopened. One possible basis to request reopening it later on is if a mistake was made in determining what the medical condition or conditions actually were at the time of injury and during the recuperation process. See 28-2-407, MCA. The Montana Supreme Court has raised a high bar against reopening cases for mistakes, and such mistakes are usually only based upon medical malpractice by the medical providers providing treatment prior to settlement.
Medical Benefits. In recent years, it has been standard practice for insurers to consider the settlement of medical benefits. Workers' compensation claims which have historically provided lifelong medical benefits are not the usual type of insurance benefit, as insurance generally contemplates a claim, a claim of payment and claim closure. Claim closure does not occur when medical benefits remain open, and workers' compensation insurance companies have been moving in the direction of offering medical closure in the form of an additional cash payment. In some instances, this is an attractive offer.
New Restrictions. Closure of medical benefits may accelerate with changes in the Workers' Compensation Act passed by the 2011 Montana Legislature, which imposed a five-year limitation on medical benefits. Any person injured after July 1, 2011 will have to either use all benefits during those five years or end them.
Any injured person who can pursue workers' compensation benefits should have legal representation. Every issue discussed here can be manipulated by insurers and no amount of discussion in this blog can adequately protect a person who is trying to make settlements in a serious injury case, or even where the injury is modest.
For information about any aspect of settlements in Montana workers' compensation cases, call Howard Toole Law Offices at (406) 728-4682 or check out our website www.howardtoolelaw.net.
Impairment Amount. A modest of impairment of 1% - 5% will trigger an analysis of wage loss. Wage loss is calculated based upon the number of dollars per hour lost between what the worker earns or is capable of earning after reaching maximum medical improvement and what the worker was earning during the four pay periods prior to injury.
.Wage Loss. This can add up to 20% if the actual wage loss is more than $2.00 per hour.
Age and Education. These are factors included for older workers or workers who have completed less than 12 years of education and do not have a GED (39-71-703, MCA).
Wage loss, impairment percentage, physical restrictions (up to 5%), age, and education factors are combined in determining an "indemnity" cash settlement for an injured worker who has an impairment which is established by objective medical findings and is not based solely on pain, 39-71-703(1)(b), MCA.
Temporary Total Disability (TTD). These are payments are made during the period that the worker is taken off work by medical orders in order to undergo treatment and recuperation from an injury. This is two-thirds of the wages received at the time of injury. Although this two-thirds fraction is a substantial reduction from wages earned at the time of injury, they are non-taxable.
These benefits are paid until the treating physician releases the worker to the same, alternative, or modified position with the same employer at an equivalent or higher wage, 39-71-701(4), MCA.
Permanent Total Disability (PTD). In catastrophic injury cases where the worker cannot return to any work, permanent total disability is paid. Frequently social security disability cash benefits are payable at the same time. Both programs are not required to pay the full amount of benefits when the other program is participating. There is an offset provided for by law in each case. In Montana workers' compensation, the offset is 50% of the benefit if social security is paying the full amount of its benefit. A different formula applies if the Montana workers' compensation insurer is paying 100% of its benefit and social security disability kicks in later on.
When a partial disability case settles, the cash benefits are defined in amount and are usually paid in a lump sum. Such a settlement cannot normally be reopened. One possible basis to request reopening it later on is if a mistake was made in determining what the medical condition or conditions actually were at the time of injury and during the recuperation process. See 28-2-407, MCA. The Montana Supreme Court has raised a high bar against reopening cases for mistakes, and such mistakes are usually only based upon medical malpractice by the medical providers providing treatment prior to settlement.
Medical Benefits. In recent years, it has been standard practice for insurers to consider the settlement of medical benefits. Workers' compensation claims which have historically provided lifelong medical benefits are not the usual type of insurance benefit, as insurance generally contemplates a claim, a claim of payment and claim closure. Claim closure does not occur when medical benefits remain open, and workers' compensation insurance companies have been moving in the direction of offering medical closure in the form of an additional cash payment. In some instances, this is an attractive offer.
New Restrictions. Closure of medical benefits may accelerate with changes in the Workers' Compensation Act passed by the 2011 Montana Legislature, which imposed a five-year limitation on medical benefits. Any person injured after July 1, 2011 will have to either use all benefits during those five years or end them.
Any injured person who can pursue workers' compensation benefits should have legal representation. Every issue discussed here can be manipulated by insurers and no amount of discussion in this blog can adequately protect a person who is trying to make settlements in a serious injury case, or even where the injury is modest.
For information about any aspect of settlements in Montana workers' compensation cases, call Howard Toole Law Offices at (406) 728-4682 or check out our website www.howardtoolelaw.net.
Thursday, July 21, 2011
The Social Security Steps
In general terms, a Social Security Disability or SSI disability applicant has up to three stages or steps to go through: 1)apply for the benefit and await a decision; 2)apply for reconsideration of a denial and again wait for a decision; and 3)apply for a hearing and receive an administrative trial of the case.
You can hire a lawyer at any time during this process. Legal advocacy makes a big difference, particularly in the third stage, but also at any other. For further process information, call Howard Toole Law Offices at (406) 728-4682.
You can hire a lawyer at any time during this process. Legal advocacy makes a big difference, particularly in the third stage, but also at any other. For further process information, call Howard Toole Law Offices at (406) 728-4682.
Are You Disabled?
Social Security's five-step analysis of disability includes the following:
1.) Are you employed? (If you are still working, you are not disabled.)
2.) Have you suffered a severe impairment?
3.) Does your impairment meet Social Security "listings"? (Definitions)
4.) If there is a severe impairment that meets or equals the listing definitions, do you have the ability to do any of the kind of work you did in the past?
5.) If you cannot do any of your past work, is there any other gainful employment in the national economy that you could do?
For further information, call our office at 406 728-4682, or go to HowardTooleLaw@yahoo.net.
1.) Are you employed? (If you are still working, you are not disabled.)
2.) Have you suffered a severe impairment?
3.) Does your impairment meet Social Security "listings"? (Definitions)
4.) If there is a severe impairment that meets or equals the listing definitions, do you have the ability to do any of the kind of work you did in the past?
5.) If you cannot do any of your past work, is there any other gainful employment in the national economy that you could do?
For further information, call our office at 406 728-4682, or go to HowardTooleLaw@yahoo.net.
Subscribe to:
Posts (Atom)