Representative Cases

The following cases are representative of cases which have been resolved by formal proceedings before the Workers Compensation Court or after appeal to the Montana Supreme Court. We have also included a representative list of Third Party claims against non-employers responsible for work-related injuries which claims have been resolved either by settlement or court proceedings, or both. Each year FairClaim handles hundreds of workers compensation claims. The vast majority of these claims are resolved without formal court proceedings and without the delay, expense and stress of litigation. However, where a claimant is not treated fairly by the workers compensation insurer, FairClaim will vigorously pursue the claimant’s legal rights in court.

MONTANA SUPREME COURT

Malcomson v. Liberty Northwest, 2014 MT 242 (Held: §39-71-604(3) MCA permitting insurer to have ex parte contact with claimant’s healthcare providers violates claimant’s constitutional right to privacy).

Tinker v. Montana State Fund, (2009) 351 Mont. 305, 211 P.3d 194 (Held: Claimant did not have notice of disability until he suffered an actual wage loss and was therefore entitled to waiver of 12 month notice requirement and to acceptance of claim).

Barnard v. Liberty Northwest Ins. Corp., (2008) 345 Mont. 81, 189 P.3d 1196 (Held: Lump sum conversion of Permanent Total Disability benefits was not limited to $20,000 where lump sum was needed for “necessities of life”).

Thompson v. State and Liberty Northwest, 2007 MT 185 (Held: Workers Compensation Court is not a court of record and is therefore without jurisdiction to consider facial challenge to constitutionality of §39-71-604(3)).

Sturchio v. Underwriters Inc. Co., 2007 MT 311 (Held: Claimant entitled to use the calculation of Average Weekly Wage best suited to each separate concurrent employment).

Preston v. Transportation Ins. Co., (2004) 324 Mont. 225, 102 P.3d 527 (Held: Statute of limitations to challenge work comp insurer’s denial of claim is tolled during pendency of mandatory mediation).

Thoreson v. Uninsured Employers’ Fund, (2002) 309 Mont. 529, 43 P.3d 983 (Held: Marijuana usage by worker did not preclude benefits).

Eastman v. Transport Ins. Co., (1992) 255 Mont. 262, 843 P.2d 300 (Held: Constitutional challenge to occupational disease law denied).

Weaver v. Buttrey Food and Drug, (1992) 255 Mont. 90, 841 P.2d 476 (Held: claimant awarded acceptance of claim, medical benefits and attorney fees for medical benefits only).

Dilling v. Buttrey Foods, (1991) 251 Mont. 286, 825 P.2d 1193 (Held: Inflated, gratuitous wage from a modified job was not within claimant’s job pool for purposes of determining the wages which claimant was qualified to earn).

Gould v. County Market/Super Valu Stores, (1988) 233 Mont. 494, 766 P.2d 213 (Held: Work Comp Court’s grant of new trial to claimant affirmed where WCC, after affirming the Hearing Examiner’s denial of the claim on the ground of untimely notice of injury, subsequently acknowledged that evidence established notice of injury within the statutory deadline).

WORKERS COMPENSATION COURT

Davidson v. Benefis, 2014 MTWCC 18, (Held: Claimant entitled to impairment award for pre-existing condition and entitled to retroactive and on-going permanent partial disability for ankle claim for which further wage loss benefits had been denied by insurer).

Engle v. Hartford Underwriters Ins., 2013 MTWCC 27 (Held: Workers elbow condition was related to her original OD claim; insurer acted unreasonably when it denied the elbow claim on ground it was a new injury).

Connie Thompson v. Montana State Fund, 2013 MTWCC 25 (Held: Claimant entitled to permanent total disability for vocal cord injury).

Pearson v. Montana Insurance Guaranty Association, 2012 MTWCC 1 (Held: Earlier settlement of Claimant’s claim unenforceable on ground Claimant was incompetent to enter into settlement agreement; claim for total disability reopened; claim not barred by statute of limitations).

Dostal v. UEF, 2010 MTWCC 38; 2012 MTWCC 5; and 2012 MTWCC 42 (Held: Claim not barred by Statute of limitations that was not in effect on date of injury; Claimant entitled to reinstatement of TTD and to impairment award; UEF acted unreasonably; UEF may be liable for attorney fees and penalty; Claimant entitled to fees and penalty for unreasonable claim adjustment).

Long v. New Hampshire Ins. Co., 2009 MTWCC 14 (Held: Adjuster’s notes established insurer’s consent to payment of benefits; insurer acted unreasonably when it concealed notes).

Schoenen v. UEF and Service Master, 2008 MTWCC 1 (Held: UEF/insurer not entitled to IME after deadline for designating witnesses and filing expert witness summaries had expired).

Johnson v. MHA Workers’ Compensation Trust, 2007 MTWCC 17 (Held: Circumstantial evidence was admissible to prove work-related cause of injury where medical opinions asserted the cause was “idiopathic”; Claimant awarded retroactive and prospective wage loss benefits).

Benhart v. Liberty Northwest, 2007 MTWCC 3 (Held: Claimant permanently totally disabled where treating physician approved only a part-time job on a trial basis).

Lee Thompson et al v. State of Montana, Liberty Northwest et al, 2005 MTWCC 53 (Held: Statutes allowing ex parte contact with Claimant’s medical providers were unconstitutional for violating rights to privacy and due process; award of attorney fees under private attorney general doctrine; Reversed on other grounds, 2007 MT 185).

Haupt v. Montana State Fund, 2004 MTWCC 25 (Held: Although functional capacity evaluation indicated worker could work full-time at sedentary employment, worker was permanently totally disabled by chronic head, neck and shoulder aches that realistically precluded regular employment).

Sharp v. Montana State Fund, 2003 MTWCC 20 (Held: Claimant suffered a work related injury and gave timely notice of injury).

McCoy v. Benefis Healthcare, 2002 MTWCC 59 (Held: Claimant entitled to wage loss benefits while on semester break from vocational retraining and auxiliary rehab benefits for mileage commuting to and from school).

Ronemus v. Business Insurance Company, 1998 MTWCC 59 (Held: Shoulder injury was compensable as work related; although Claimant initially indicated the injury was minor, the injury was nonetheless reported within 30 days).

Bowers v. Department of Labor and State Compensation Insurance Fund, 1998 MTWCC 46 (Appeal of Department of Labor’s determination that death was not caused by work place exposures. Held: Presumption of correctness afforded medical panel report under §39-72-610(1) MCA was unconstitutional violation of due process and unlawful delegation of executive power).

Thayer v. UEF, 1994 MTWCC 110 (Held: Claimant was employee, not independent contractor; claimant’s widow awarded death benefits for work related death of claimant).

REPRESENTATIVE THIRD PARTY CLAIMS FOR WORKPLACE INJURIES [Significant Recoveries Only]

  • Power company negligently failed to replace or repair rotten utility pole causing cable lineman to suffer severe injuries when he fell from great height and “skinned” pole.
  • General contractor failed to require fall protection causing employee of subcontractor to injure leg, which failed to heal and was surgically amputated below the knee.
  • Employee of highway contractor suffered life-threatening and disfiguring debridement injury when caught and dragged between the rear dual tires of fuel tanker trailer which encroached into construction zone by turning too sharply.
  • Product liability claim against manufacturer of load binder when load binder securing a load of pipe on flatbed bed trailer released with unexpected force causing truck driver to suffer traumatic brain injury.
  • Unsafe place to work claim against building owner and product liability claim against manufacturer of metal roof panels when building contractor’s employee was blown off roof while handling panels and suffered permanent paraplegia.
  • Unsafe place to work claim against uninsured employer and product liability claim against manufacturer of “fire retardant” when employee on demolition project suffered severe burns resulting in death 2 weeks later.
  • Product liability claim against manufacturer and retailer of large farm implement when locking pin failed and farm employee crushed to death by falling implement.
  • Claim against the city by employee of maintenance contractor for serious back injury sustained on slick floor of city parking garage.
  • Product liability claim against manufacturers and sellers of welding rods and fluxes for personal injury to and lung cancer death of career welder from carcinogenic welding fumes.
  • Claim against owner/operators of compressor station for failure to maintain gas hose fitting which broke loose causing hose to whip violently as gas released under high pressure and inflicted multiple severe injuries to head, neck, shoulders and extremities of oilfield worker.
  • Wrongful death claim against work comp insurer for negligent and bad faith failure to authorize treatment for depression resulting in suicide.