No. 02-570 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 290N 

JEREMY RUHD, 

Petitioner and Appellant, 

v. 

LIBERTY NORTHWEST INSURANCE 

CORPORATION, and RICHARD BARBER, 

d/b/a BARBER HOMES, 

Respondents and Respondents. 

APPEAL FROM: The Workers’ Compensation Court of the State of Montana, 

Honorable Mike McCarter, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana 

For Respondents: 

Larry W. Jones, Senior Attorney, Liberty Northwest Insurance Corp., 

Missoula, Montana 

Submitted on Briefs: November 7, 2002 

 Decided: December 10, 2002 

Filed: 

__________________________________________ 

Clerk 
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Justice Jim Rice delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a 

public document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court. 

¶2 Jeremy Ruhd (Ruhd) appeals from the summary judgment entered by the Workers’ 

Compensation Court in favor of Respondents Liberty Northwest Insurance Corporation 

(Liberty) and Richard Barber, d/b/a Barber Homes. We reverse and remand for further 

proceedings. 

¶3 Ruhd raises three issues on appeal, which we state as follows: 

¶4 1. Did the Workers’ Compensation Court err in determining 

that Ruhd, a permanently totally disabled worker, is not entitled 

to an impairment award? 

¶5 2. Did the Workers’ Compensation Court’s interpretation of 

the Workers’ Compensation Act violate constitutional guarantees of 

equal protection and full legal redress? 

¶6 3. Did the Workers’ Compensation Court err in failing to 

grant Ruhd’s motion to amend his petition to maintain a class 

action and for joinder of claimants for purposes of common fund 

attorney fees? 
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BACKGROUND 

¶7 Ruhd, while employed for Barber Homes, suffered a traumatic brain injury on 

November 23, 1999, when he fell two and a half stories from a scaffolding on which he was 

framing a house. He was permanently and totally disabled by his injuries, and his treating 

physician determined that Ruhd had a 74 percent whole person impairment rating according 

to the AMA Guide to Evaluation of Permanent Impairment, 5th Edition. 

¶8 Liberty accepted liability for Ruhd’s industrial injuries, 

paying medical, wage loss and total disability benefits, but denied 

Ruhd’s claim for payment of an impairment award. On January 23, 

2002, Ruhd filed a petition with the Workers’ Compensation Court, 

seeking a determination that he was entitled to an impairment 

award. On June 18, 2002, Ruhd filed a motion to amend his petition 

to join similarly situated claimants in a class action, pursuant to 

Rule 23, M.R.Civ.P., and for common fund attorney fees pursuant to 

this Court’s holding in Murer v. State Fund (1993), 257 Mont. 434, 

849 P.2d 1036. Liberty opposed the motion, and moved for summary 

judgment, citing the Workers’ Compensation Court’s earlier decision 

denying payment of an impairment award for permanently, totally 

disabled workers in Fisch, Frost, and Rausch v. State Compensation 

Insurance Fund, 2000 MTWCC 56, which was then pending on appeal to 

this Court. 

¶9 On July 23, 2002, the Workers’ Compensation Court notified the 

parties that it would not revisit or overrule its decision in 

Rausch, and that it would either stay the proceedings herein 

pending the outcome of the appeal in Rausch, or enter judgment 
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adverse to Ruhd, at their direction. Both parties requested that 

the Workers’ Compensation Court enter judgment against Ruhd. On 

August 7, 2002, the Workers’ Compensation Court entered summary 

judgment in favor of Liberty based upon its decision in Rausch and 

did not address Ruhd’s motion to amend his petition. Ruhd appeals 

from that judgment. 

STANDARD OF REVIEW 

¶10 We review the Workers’ Compensation Court’s conclusions of law to determine 

whether they are correct. Rausch v. State Compensation Ins. Fund, 2002 MT 203, ¶ 14, 311 

Mont. 210, ¶ 14, 54 P.3d 25, ¶ 14. In workers’ compensation cases, the law in effect at the 

time of the claimant’s injury establishes the claimant’s substantive right to benefits. State 

Fund v. McMillan, 2001 MT 168, ¶ 5, 306 Mont. 155, ¶ 5, 31 P.3d 347, ¶ 5. 

DISCUSSION 

¶11 Issue 1. Did the Workers’ Compensation Court err in determining that Ruhd, a 

permanently totally disabled worker, is not entitled to an impairment award? 

¶12 On September 5, 2002, this Court decided Rausch v. State 

Compensation Ins. Fund, supra. In Rausch, the Court held that 

permanently totally disabled workers are entitled to receive 

impairment awards under the 1991 and 1997 versions of the Montana 

Workers’ Compensation Act, reversing the contrary conclusion 

reached by the Workers’ Compensation Court. Rausch, ¶ 30. Ruhd 

and Liberty agree that Ruhd’s claim to an impairment award under 

the 1999 version of the Act has been resolved by the Court’s 

decision in Rausch. Liberty indicates that it will pay Ruhd the 
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benefits to which he is entitled, although an issue remains 

regarding the proper method of payment of those benefits under § 

39-71-741, MCA, which will require further fact-finding and 

resolution on remand. Ruhd does not contest this assertion. 

Accordingly, we reverse the Workers’ Compensation Court’s denial of 

Ruhd’s claim to an impairment award and remand for consideration of 

the method of payment. It is unnecessary, therefore, to address 

Ruhd’s contention under Issue 2 that the Workers’ Compensation 

Court’s statutory interpretation violates constitutional 

guarantees. 

¶13 Issue 3. Did the Workers’ Compensation Court err in failing 

to grant Ruhd’s motion to amend his petition to maintain a class 

action and for joinder of claimants for purposes of common fund 

attorney fees? 

¶14 In granting summary judgment to Liberty on the substantive 

issue raised by Ruhd’s petition, the Workers’ Compensation Court 

did not address Ruhd’s motion to amend his petition for class 

certification and for common fund attorney fees, and thus, these 

issues were not resolved by the Workers’ Compensation Court. 

¶15 Ruhd requests that we grant the relief he sought in the 

Workers’ Compensation Court by entering an order certifying a class 

of similarly situated claimants insured by Liberty, which he argues 

is distinguished from the claimants at issue in Rausch. He further 

requests an order establishing his entitlement to common fund 

attorney fees for that class. 
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¶16 Liberty asserts that it has contacted legal counsel involved 

in the Rausch matter and that they are claiming attorney fees in 

Ruhd’s case. Liberty argues that because these issues have not 

been addressed by the Workers’ Compensation Court, remand for 

consideration is appropriate. We agree. Because we do not have a 

record before us on any of the remaining issues, the Workers’ 

Compensation Court is the appropriate forum for determination of 

these matters. 

¶17 We reverse the judgment entered herein by the Workers’ 

Compensation Court and remand for further proceedings consistent 

with this Opinion.

/S/ JIM RICE 

We concur: 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 

/S/ TERRY N. TRIEWEILER 
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Chief Justice Karla M. Gray, specially concurring. 

¶18 I concur in the Court's opinion. I write separately only to state my continued belief 

that the Court erred in Rausch, for the reasons 

stated in my dissent to that opinion. In my view, 

permanently totally disabled workers are not 

entitled to receive impairment awards in addition 

to their other workers’ compensation benefits. 

See Rausch, ¶¶ 59-65 (Gray, C.J., dissenting). 

The Court having concluded otherwise, however, 

I am as bound by that conclusion as are all other 

Montanans. 

/S/ KARLA M. GRAY