Nos. 01-420, 01-441 and 01-112 rzi THE SUPREMECOURT OF THE STATE 

### OF MONTXNrl,

.ALEXIS KAUSCL-I, as Conservator hr KEVIN R*\USCH, and on behalf of others similarly situated, CHARLES FISCH, ind~vidually and 011behalf of others simrlarly situated, THOMAS FROST, irtdividually and on behalf of others similarly situated,

STATE COMPENS24TIONINSURAKCE FUND.

APPEAL FROM: Workers- Compensat~on Court, State of Montana The Honorable M~ke McCartcr, Judge pressdmg.

COUNSEL OF RECORD: For Appellants: Lon J. Dale, James T.Towe, Milodragovich, Dale, Steinbrenner & Binney, P.C.,Missoula, Montana (For Rausch) Monte D. Beck, Attorney at Law, Bozcman, Montana (For Fisch) Stephen D. Roberts, Attorney at Law, Bo~eman. Montana (For Frost) For Respondent: 

### dw- - Greg E. Overturf, Montana State Fund, I-lelena,Montana

Submitted on Briefs: Decernber 13, 2001 Decided: September 5. 2002. CLERK OF SUPREME COURT fir$$E RAONTANWJustice Terry 21, 'Tric\vciler 

### delivered 

### the Opinion of the Court. 71 Appellants; Alexis Rausch (as conservator for Kevin Rausch'), Charles Fisch, and Tlronias Frostt cacli filed separate petitions in Workers' Compensation Court claiming cntitlernent to immediate payment of an impairment award based on their respective impaimlent ratings. Respondent, State Compensation Insurance Fund, denied immediate payment ofthe impairment awards, assertingthat the benefit wasnot dueuntil each claimant reached his retirement age. Appellants brought their claims as individuals and on behalf of others similarly situated, and also sought attorney fees,penalties, and common fund attorney fees. The Workers' Compensation Court consolidated the three cases and concluded that neither the 1991 nor 1997Montana Workers' Compensation Acts (\vhich applied to these claimants)provided a statutotybasis foran impainnent award to permanentlytotally disabled claimants. Claimants contended that if that conclusion was correct, their rights to equal protection and due process were violated. The Workers' Compensation Court held that the Montana Workers' Compensation Act, as interpreted by the Court in its previous order, did not violate either the equal protection or due process clauses of the Montana Constitution. .%ppellants appeal from the LVorkers' Compensation Court's Order and Decision Disposing ofNon-Constitutional Issues, Order and Judgment Regarding Constitutional Challenge. and the Judgment Respecting impairment Awards. We reverse the LVorkers' Compensation C:ourt's orders\vhich denied impairment awardstopermanently totally disabled workers and denied attorney fees. !I2 The issues presented on appeal arc restated as follows: 

### 2rili I. Did the District Court err as a ritalter of law when it cctnciudcd,pursiianl to the 1Whad1997versionsofti~b: Montana Workers'Compei~salion Act;that pern~ancntly toraliy disabled workers are not entitled to receive impairment awards'? 74 2. Is an impairment award due to a pemtanently totally disabled claimant upon the receipt of his or her undisputed impairment rating or upon retirement? 

### 35 3. Should an impaimlent award to a permanently totally disabled claimant be characterized as a total or partial disability benefit? 1:6 4. Are elaimaiits' attorneys entitled to attorney fees pursuant to the common fund doctrine? FACTUAL AND PROCEDURAL BACKGROUND 

### '7 Kevin Rausch, Charles Fiseh; and Thomas Frost were all determined to be pernlanently totally disabled as a result of work-related injuries. Kevin Rausch sustained a head and spinal cord injury on July 8, 1992,and is quadriplegic withbrain damage. Charles Fisch sustained a spinal cord injury on July 9, 1998, and is an incomplete quadriplegic. Thomas Frost sustained aback injuryon August 30, 

### 1997,andhasundergone a series offour back surgeries. The StateCompensation InsuranceFund(StateFund)insuredeachclaimant's cnlployer and has accepted liability for each ofthe injuries. ij8 Rausch, Fisch, and Frost currently receive pelmanent totiil disability benefits as a res~~lt of thcir work-related injuries, and are entitled to those benefits until their death or retirement age, whichever occurs first. The claimants began receiving permanent totaldisabilitybenefitsimmediatelyupon termination oftheirtemporary total disability benefits. None of tire claimants haw ever received permanent partial disability benefits. 79 Each claimant has reached maximum medical improvement from his respective injuries, On Deccmber 14, 1998,Kevin Rausch received animpairment rating equal to 96% of the whole person. On July 29, 1999, Charles Fisch received an impairment rating equal to 74% ofthe whole person and on August 26, 1999, Thomas Frost received an impairment rating equal to25?hofthe wholeperson. Each impairmentrating was based on the American Medical Association Guide to Evaluation of Permanent Impairment, and on objective medical findings. Ti 10 Each elairnatlt filed separate petitions in the Workers' Compensation Court claiming entitlement to immediate payment of an impairment award. The State Fund denied immediate payment of the impairment awards, based on its contention that in~pairnlent a\nlards for permanently totally disabled claimants are not due until the claimants either receive social securityretirement benefits or are entitled to receive social security retirement bcnetits. Claimants also asserted that postponement of their impairment awards would violate their rights to equal protection and substantive due process as guaranteed by the Montana Constitution. Claimants sought attorney fees individually and pttrsuant to the

cornmon fund doctrine for similarly situated claimants. At no time did the State Fund contend that claimantshad no entitlement to an impairment award. The dispute centered on the timing of the payn~ent.(11 1 On March 

### 2") 20(rClf!, the Starc Fund offered to pay the impairment awards, as an undiscounted, lump srrrn,toeachclaimantconcumeniwithpermanenttotal dlsabiiiiybenefits. In additiorr, the State Fund agreed to pay the claimants' attorney fees. Fisch and Frost accepted the StateFund's offer, but continued to maintain standing forclasscertification and for common fund attorney fees. Rausch rejected the State Fund's offer because of its unwillingness to characterize the impaimlent award as a permanent total disability benefit (which would impact whether there is a social securityoffset). Although the State Fund has paid inipairmelit awards to Fisch and Frost, it has not paid 

### impairment awards to all other similarly situated claimants. 

## 7 12 The Workers' Compensation Court consolidated the three cases, and bifurcated the statutory and constitutional issues. It first examined the statutory basis for impairment awards, arid then cxatnined the constitutionality of its decision in light of the claimants' cosistitutional arguments. Based oil briefs and stipulated facts, the Workers' Compensation Court issued an Order and Decision Disposing of Non-Constitutional Issues on September 13, 2000. It held that neither the 1991 nor 

### 1997 Montana Workers' Compensation Acts provided for impairment awards to pernianently totally disabled claimants. The Workers' CornpensationCo~~rt then issued an Order and Judgment Regarding Constitutional Challenge

on '4pril 20, 2001. In that Order, it held that the Court's interpretation of the Montana Workcrs' Comperisation Act did not violate eitherthe due process orcqual protection clauses of thc Montana Constitution."13 The ciaimanrs appealed the iVorkerst Compensation Courts Order and Dccision Disposing of Non-Cor.rsiituiionai issues, Order and Judgment Regarding Constitutional Challenge, and the Court's Judgment Respecting 

### impairment Awards which was based on those orders. STANDARD 

### OF REVIEW 114 We review the Workers' Cotnpensation Court's conclusions of law to determine whether they are correct. 

### ibfatthrwsv. 

### State Cornpensution 112s. 

### Fund, 1999

### MT225,15,296 Mont. 76,

## '1 5,985 P.2d 741,T 5. DISCLJSSION ISSUE 1 

## 71 5 Did the D~str~ct Court enas a matter oflaw when it concluded. pursuant to the 1991 and I997 vers~ons of the Montana Workers' Compensation Act, that permanently totally disabled workers are not entitled to receive impairment awards? 7116 The contestedlegal issuepresented tothe Workers' Compensation Court by the parties related to when an impairment award should be paid to a permanently totally disabled claimant. The claimants asserted that the impairment award should be paid immediately upon receipt oftheir undisputed impairment ratings, while the StateFund responded that the ilnpairmeiit award shouldbepaid atage 65, upon retirement, pursuant to 

## 5 39-71-710, MCA I I & 9'7 'The State Fund had already conceded that the claimants were entitled to impairment auards. However, in analyzing the legal issue presented, the Workers' Compensation Court concluded there was no statutory basis for impairment awards to 6permancntiy totally disabled claimants 

### in either the 19901 or 1997versions of the Montana Workcrs' Compensation ,Act. On that basis, theLL70rkers'Compensation Court concluded as

a matter of law that permanently totally disabled workers are not entitled to impainnent awards. Afterreview ofthe applicable statutes.weconcludethat the Workers' Compensation Court's intet~retation of the acts ISincorrect. 17 Workers' compensation benefits are determined by the statutes in effect on the date ofthe injury. 

### Rzickniaiz v. 

### hlontnfza Deaconess Nosp. (1986), 224 Mont. 318,321,730 P.2d 380,382. Therefore,with respect tothe Rausch claim, the 1991Workers' CompensationAct is applicable. With respect tothe Fisch and Frost claims, the 1997 Workers' Compensation Act is applicable. 

### 718 Montanarecognizes four distinctclasses ofdisability benefits: (1)temporarytotal; (2) temporaty partial; (3)permanent partial; and (4)permanent total. 

## 3 39-71- 11 6, MCA (1 991 & 1997);

### lieeverts v. 

### Sears,Roebuck & 

### Co. (1994), 266 Mont. 509,517,881P.2d 620,625. The claimants in this ease have all been classified as permane~ttly totally disabled, and have never been classified pemtanently partially disabled. I Several sections of tile Montana Workers' Compensation Act discuss impairment awards. We have previously stated that where one part of the law deals with a subject in general and comprehensivetenns, while anotherpart ofit deals in a more specific or definite way, the twoparts shouldbereadtogether and,ifpossible, harmonized, with aviem-to giving effect to aconsistent legislativepolicy. 

## 3 1-2-101,MCA;

### E.H.O@dirlc~t~d,Sorts. Irzc. v.

### State"120 No sectionofthe tVorkerslCompensation ,4ctexplicit1 y authorizes impairment awards pcr sc. HOMCLCT, impalrment abards arc impliedly authoriicd lo any injured bcorkcr classified in one ofthe four distinct classes ofdisability benefits by two sections ofthe Act. 

## 8 39-71-710, MCA, and (3 39-71-737, MCA. The 1991 and 1997bersions of

## 6 39-71-710, MCR, differed in only minor respects, and provided in relevant part: 

### Termination of benefits upon retirement. (1) If a claimant is receiving disability or rehabilitation compensation benefits and the claimant receives social security retirement benefits or is eligible to receive full social securityretirement benefits, the claimant isconsidered toberetired. When the claimant is considered retired, the liability ofthe insurer is ended forpayment of wage supplement, perfaanent total disability, and rehabilitation compensation benefits. However: the insurer remains liable for temporary total disability benefits, itny inzpmirnzenf itward, and medical benefits. 

## 8 39-71-710(1), MC,4 (1991) (emphas~s added). 

### Termination of benefits upon retirement. (1) If a claimant is receiving disability or rehabilitation compensation benefits and the claimant receives social security retirement benefits or is eligible to receive or is receiving full social securityretirement benefits or retirement benefits from a system that is an alternative to social security retirement, the claimant is considered to be retired. When the claimant is retired, the liability of the insureris endedforpayment ofpermanent partial disability benefits other than the impairment award,paynzerzt fff per-rnarterrt total disability benefits, and payment of rehabilitation compensation benefits. However, the insurer remains liable for temporary total disability benefits, urzy irnpuirn~ent a~'i~irrit, and medical benefits. 

### 3 39-71-710(1), 

### MCA (199'7) (emphasis added).YiZI Section 3")-11-710, MCA (199 ii i 1997).

,. speciiicaiiy states thiir a11insurer remains liable for other benefits, including "any inlpai1men.i award," upon cessation of pcmiancnt totai disability benetits. The statute's contemplatio~~ of when permanent total d~sabtlity bcncfitsterminateandwhen impairmenta\vard liability continuesrecognixesthe fundamental nature of the impalmwnt award itself. lmpa~rment a~vards are based on a worker's impa~rnleat ratlng, nhich is a purely medical determination ofthe loss ofphysical function ofthebod3 caused by the injury. $39-71-711,MCA (1991 & 1997). ?'he lmpalrment rating is the physical component on which the disability is based. Disability benefits compensate tl~e worker for losses related to their inability to work. An impairment akvard is paid to compensate the worker for the loss ofphysical function ofhis or herbody, which may hake ramificationsbeyondjust the worker's ability to return towork. The difference is subtle, yet important. The inclusion of continued impairment award liability in $ 39-71-710, MCA (I991 8L 1997), ~ndicates the distinct nature of the impairment award from other types of disability benetits 

### 722 Furthermore, Impairment anards are implicitly recognized in 

## 3 39-71-737, MCA. Seetlons 39-71-737, MCA, of the 19% and 1907Workers' Compensation Acts provided as



### Compensation to run consecutively 

## - exceptions. Compensation shall run consecutively and not concurrently, and payment shall not be made for two classiis of disability over the same period except that impairment awards and auxiliary rehabilitation benefits may be paid concurrently with 

### otlier cliisses 

## of betzejifits, and wage supplement and partial rehabilitation benefits may be paid concurrently.

## 5 89-71-737, klCA (19")) (emphasis added). Compensation 

### to run cansecutivefy - exceptions, Compensation must run consecutively and not concurrently, and payment may not be made for two classes of disability over the same period, except that impairment aviards 

### and auxiliary rehabilitation benefits may be paid concurrently ivith otlier clusses ofbengfirs. $ 39-71-737, MCA (1997) (emphasis added). 7/23 Section 39-71-737, MCA (1991 & 1997), like $ 39-71-710, MCA (1991 & 1997), creates an entitleinent to an impairment auard for disabled workers within more than one class of disability benefits. Since a permanent impairment rating is inconsistent with temporary dlsabilrty benefits 

### ,impairment anards must necessarily be rccolerable by both permanently partially and permanently totally disabled claimants. 721 The \h70rkers'Compensation Court concluded that the only section in the Workers' Compensat~on Actubich directly authorizes~mpairment awards 1s

## 4 39-71-703,MCA (1991 & 1997),pertaining to compensation forpermailently partially disabled claimants. Because

Temporary benefits (meludingtemporary partial and temporary total benefits) are recoverable as a result of losses incurred by a claimantprior 

### to maximum healing. ,See $ 3%71-1 16(23),MCA (1991) and $39-71-1lG(32) & (33), MCA (1997). By comparison, permanent benefits (including permanent partial and permanent total benefits) are detern-rineduper the worker has reuciwd mu~irnum ~~zedical heulirzg. See $; 39-71-1 16(15) & (16);MCA (1991)and 

## 5 39-71-1 16(23)& (24), 

### MCA (1997). Pursuant to $ 39-71-71l(l)(a), blCA (1991 & l997), "[ajn impairment rating is a purely medical determination and must be determined by an impairment evaluator after a claimant has rcached maximum healing." 

### $ 19-71-71l(l)(a), MCA (1991 & 1997). Therefore, if impairment awards are payable concurrently with "other classes of benefits," it has to be pennanent partial and permanent total disability benefits.the claimants

### inthiscasec\-crenever ciassifiedpermarrentlypariially disauied. the Counheid

~thad no authority to a~lard compensation for permanent rmpaimcnt. 725 However, the Court's conclusion that 

### i;. 39-71-703, MCA, expressly provided 

### hr ~mpairment auards in both the 1091 and 1997 Workers' Compensation Acts 1s ~ncorrect. Sectlon 39-71-703. MCA. of the 1991 M'ot-kers' Compensation Acts pro~ided in relevant part: 

### Compensation for permanent partial disability. (1) If an injured worker suffers a permanent partial disability and is no longer entitled to temporarytotal orpermanent total disability benefits, the worker is entitled to a permanent partial disability award. (2) The permanent partial disability award must be arrived at by nlultiplying the percentage arrived at through the calculation provided 

### in subsection (3)by 350 weeks. (3) An award granted an injured worker may not exceed a permanent partial disability rating of 1000/o. The criteria for the rating of disability must be calculated using the medical inlpairment rating as determined by the latest edition of the American medical association Guides to the Evaluation of Permanent Impairment. Thepercentage to be used in subsection (2) must be determinedby adding the following applicable percentages tothe impairment rating: (a)if the claimant is 30years ofage or younger atthe time ofthe injury, 0%;ifthe claimant is over 30years of age but under 56years of age at the time of injury, 2%; and if the claimant is 56 years of age or older at the time of injury, 3%; (b) for a worker who has completed less than 

### 9years ofcducation, 3%; for a worker who has completed 9 through 12 years of education or who has received a graduate equivalency diploma,294; for a workerwhohascompleted more than 12 years of education, 0%; (c) if a worker has no wage loss as a result ofthe industrial injury, 0%; if a worker has an actual w-ageloss of 

### $2 or less an hour as a result of the industrial injury: 10%;if a worker has an actual wage loss ofmore than $2 an hour as a result of the industrial injury, 20%; and (d) if a worker, at the time of the injury, was performing heavy labor activity and after the injury the worker can perform only light or sedentary labor activity, 20%; if a worker, at the time of injury, was performing heavyiabor activity and after the injury the worker can perform only medium labor activity, 15%;if a workerwasperforming medium labor activityatthe time of the injury and after rhe injury the worker can perform only lighr or sedentary labor activity, 10%.

The same sectiot~ in thc 1097itct 

### provided: Compensation for permanent partial disability. (1) If an injured worker suffers a permanent partial disability and is no longer entitled to temporarytotal orpermanent total disability benefits, the worker is entitled to permanent partial disability award if that worker: (a) has an actual wage loss as a result of the injury; and (b) has a permanent impairment rating that: (i) is established by objective medical findings; and (ii) is more than zero as determined by the latest edition of the American medical association Guides to the Evaluation of Permanent Impairment. (2) When a worker receives an impairment rating as a result of a compensable injury and has no actual wage loss as a result of the injury, 

### the worker is eligible for an 

### impairnzentaward onlJ!. (3) The permanent partial disability award must be arrived at by multiplying the percentage arrived at through the calculation provided in subsection (5) by 350 weeks. 

### (4) Apermanentpartial disabilityawardgranted an injured workermay not exceed a permanent partial disability rating of 10004. (5) The percentage to be used in subsection (3) must be determined by adding all of the following applicable percentages to the impairment rating:

Section 39-71-703, MCA (1997) (emphasis added). 

# v26 The 1901 version of 

## 5 39-71-703, MCA, did not expressly provide for impairment auarcis. The stattite simply discussed the use of the "impaimlent rating" as one factor it1 dctcrrnining permanent partial disability benefits

### 1127 fhei9Wversion of539-'71-703. MCA,on the other hand, does specificallyprovide for irnpairmcnr a\*-ards. Howeber, they are not linked to pariial disability. Section 

### 39-71- 703(2), MCA (1997), provided that "[wlhen a worker receives an impairment rating as a result of a compensable injury and has no actual wage loss as a result of the injury, the worker is eligible for an impairmentaward." Pursuant to the definition of "permanent partial disability" found in 

## 5 39-71-1 16(23),

### MCA (19!97),however, if there is nowage loss, there 1s no permanent partial disabilitj

## .' 728 Therefore, nettherthe 1991nor 1997version of $; 39-71-703, 

### MCA, are authorityfor ltmiting ~mpairmetlt awards topartially disabled claimants. In the 1991 version, they Mere not expressly provided for. In the 1997version, they hereunrelated to the disability. 29 One final consideration is necessarily part of our statutory analysis. To provide an ~mpairment award to permanentlypartially disabled claimants and not topermanentlytotally d~sabled claimants would lead to an absurd result, and contravene the intent underlying the Workers' Compensation Act. When more than one interpretation is possible, 

### in order to promote justice, we will reject an interpretation that leads to an unreasonable result in favor

(23j "Permanentpartial disability" means a physical condition in which a worker, after reaching maximum medical healing: (a) lias a permanent impairment established by objective medical findings; jbj is able to return to work in some capacity but the permanent impairment impairs the worker's ability to work; and (c) /?(IS a12 

### UC~ZINI lv~~ge 10s.~ US u ~esult of the injuiy. 

## 3 39-71-1 16(23), MCA (1997) (emphasis added)of another that 

### will lead to a reasonable result. Jol~ilson v. ill/rrias

### River. EIec. 

### Co-op, ~IZC. (!084j, 21 1 Mont. 

### 518, 

### 524. 687 P,Zd 668, 671. As interpreted by the Workers' Cornpensation Court, a pemanently partially disabled worker, cvho is by definition less disabled, can receive an in~paimient award while a permanently totally disabled worker is dcprived of the benefit. Therefore, the most disabled of all claimants, despite having an undisputed impairment rating caused as a result of a permanent loss of physical ftrnction, would receive no impairment award. Furthemlore, an injured worker who is at first classified as a pem~anently partially disabled worker, hut is subsequently reclassified as permanently totally disabled is eligible for a full impairment award, while another worker with the same injury who is fro111 the onset classified as permanently totally disabled is ineligible. Such a result would be unreasonable and callnot have been the Legislature's intent. 130 Weconclude.therefore,thatpermanently totally disabledclaimants arelegally entitled to an impairment award for the loss ofphysical function oftheir body occasionedby aworkrelated injurypursuant to therecognition ofsuch awards in ij 39-71-71

### 0. MCA, and 

## 939-7 1- 737, VCA. The \Vorkersl Compensation Court's conclusion to the contrary is reversed. 

### ISSUE 2 

### 731 is an impairment award due to a permanently totally disabled claimant upon the receipt of his or her undisputed impairn~ent rating or upon retirement? *i72 !,- Thc primary issue presented to the Workers' Compensation Court by the parties was when an impairment award should be paid to a permanently totally disabled claimant. The I4State Fund contended that an in~paiment award should be paid at age 65 upon retirement pursuant to 

### 4 39--7-710, ?JICA. The claimants, on the other hand, contended that an in~pairrnent award is due immediately upon thc rcccipt of an unhsputed impairmen1rating, and should be paid concurreiitly \+-it11 permanent total disabilitybenefits pursuant to 

## 5 39-71- 737, MCA. The District Court did not reach this issue based on its resolution of Issue 1. '33 The rules of statutory construction require the language of a statute to be construed according to its plain meaning. If the language is clear and unambiguous, no further interpretation is required. 

### Love11 v. 

### Stute Conlpensntion Mut. Ins. Fund (1993), 260 Mont. 279,285,860 P.2d 95.99. 7/34 Section 39-71-737, b1CA (1991 & 1997), states that compensation benefits shall run consecutively "except that impairment awards and auxiliar)! rehabilitation benefits lnay be paid concurrently with other classes." Section 39-71-737, MCA (1991 & 1997),is clear and unambiguous, and the claimants in this case are, therefore, entitled to receive their impairment awards concurrently with their permanent total disability benefits. The State Fund's reliance on 

## 5 39-71-710, MCA (1991 & 1997), is misplaced. Section 39-71-710. MCA (1991 & 1997). merely states than an insurer remains liable for payment of an impairment award if it has not already been paid to the claimant before age 65. !t says nothing to suggest that payment should be delayed until retirement. Furthermore, to read such a meaning into the statute would create another absurd result. Partially disabled workers would be entitled toimpairment awards whilereceiving their disability benefits,buttotally disabled workcrs who presumably have the grater need would not be. Again, tve conciude thar the Legisiature couid not reasonably have had such an intention. 7/35 Forthese reasons, we concludethat an impairment award is duea perma~~cntly totally disabled claimant upon receipt of his or her undisputed impairment rating. ISSUE 3 136 Should an inipairment award to a permanently totally disabled claimant be characterized as a total or partial disabilitybenetit? 737 An issue raised by the conservator of the estate of Kevin Rausch, which went unaddressed by the Workers' Compensation Court based on its resolution of Issue 1,is how impairment benefits due a permanently totally disabled clainiant should be characterized. The characterization ofthe inipaiiment award is significant because it determines whether there is a social security offset. The Social Security Administration offsets benefits which are designated aspartial benefits, but doesnot offset permanent ortemporarytotal disability benefits. 7138 Rausch contends that his impairment award should be characterized as part of his permanent total disability benefits, since impairment is simply the functional or medical component of that disability. (j39TheState Fund did not address this issue in its brief on appeal. However, in the LVorkcrs' Coinpensation Court, the State Fund contended that an impair-ment award shou!d be classified as netther apermanent total disabilrty benefit nor a permanent partial disablllty benefit. The State Fund asserted that an itnpairment award is a unique benefit distinct from 16disabtlrty benefits and rntcnded oniy to compensate cla~rnantc. 

### hr the med~cal component of their disability. Ti~crefore~ it urged the Woi-K~TS' Compensation Court to characteri;le impairment awards as a special class ofbenefits referred to as an 

### "impairment award." 740 Theproblem .v,ith the approach suggestedby the State Fund istl~at the Social Security Administration does not recognve a class of benefits entitled "lmpalrment award" or "impairment benefits." Periodically, the Social Security Administration requests \+orkersl compensation insurers to complete a form for confirmation and classtfication of uorkers' con~pensationbencfits being paid to individuals who concur-rently receive workers' compensation benefits and social security disability benefits. Therefore,becauseRausch will receive an impairment award, the State Fund will have to advise the Social Security Administration of how it classified those benefits by completing Form SSA-1709. Form SSA-I 709, however, like Montana law, onlyrecognizes the existence offour classifications ofbenefits?i.e.; temporary partial, temporary total, permanent partial and permanent total. If we were to adopt the State Fund's suggestion, and a fifth classification of benefits was recognized under the guise of "impairment benefits," the Social Security Administrationhas stated that it would categorize the impairment award as a permanent partial benefit, Therefore, the Social SecurityAdministration will offset Rausch's disability benefits, even though Rauscl~ is pennanently totally disabled, not permanently partially disabled. 4 That result irrationally reduces Kausch's impairment award benefit, even though the StatcFund concedes that impairment is merely the medical component ofhis total disability and that classification of 

### impairment bencfits for a permanently totally d~sabled uorkcr as 1721 partial disabi!ity bcnefit is improper. The nlost logical approach is to characterize the inlpainncnt award consistently with the ciaimant's disability status, considering that the impairment is a result of the claimant's injury and a substantial factor in his disability. 142 Therefore, we conclude that because Kevin Rausch was permanently and totally disabled, his impanment a\?ard should be characteri~ed as a permanent total disabrlity benefit. ISSUE 4 743 Are claimants' attorneys entitled to attomey fees pursuant to the common fund doctrine? 744 Ciaimants'attomeqscontendthey areelltitledto attorney fees pursuant tothe coinmon fund doctrine thrall similarlys~tuatedpermanently totally dtsabled claimants whohatebeen dented immedtate tmpairment awardsby the StateFund, and will now be abletoobtain those benefits as a rcsult of this decision. As authority, claimants' attorneys cite this Court's decision in Murer 

### v. Stare 

### Chnzp. itf~it Ins. Ft~nd(1997), 283 Mont. 210, 942 P.2d 69. The State Fund did not rcspond to the claimants' request for common fund attorney fees in the brief subnutted for thrs appeal 

### 745 Generally, the common fund doctrine "authorizes the spread of fees among those individualsbenefitting from the litigation which created the common fi~nd." ,bfou~ztai~z West Faivii Buwc~u ~llut. hzs. C.i,. Y.fill, 2001 MT 314,l 14,308 iblont. 29,T 14,38 P.3d 825,1; 11. Thc common fund doctrine provides:[Wllicn a patty has an interest 

### in a fund 

### in common with others and incurs legal feesin order to establish,preserve, increase: orcollect that fund,thenthat party 1s cnt~tlcd to rc~mbursement ol'h~s or her 

### reasonable attorncy fecs fion: the proceeds of the fund rtsclf.

q36 Tobe awarded attorney feesbased on the common fund doctrine, aparty must satisfy three clemcnts. First, a party (or multjplc parties in the case of a consolidated case) must create, rescrte, increase, or presertc a common fund. This party is typically referred to as the actitebeneficiary. Second, tlre actice beneficiary must incur legal fecs in establishing the common fund. Third, the common fund must benefit ascertainable, non-participating beneficiaries. hfoulztnirz 

### Vest, 

### ti7 15-16, 18. 7,47 In hlzireu. clannants engaged in complex, lengthy, and expensive litigation that resulted in a legal precedent which d~rectly benefitted a substantial number of workers' coinpensation claimants tvho were neither parties to nor directly in~olved in the blurer ltt~gatton. 283 Mont. at 223, 942 P.2d at 76. In addition, "claimants established a tested right on behalf of the absent claimants to directly receive immediate monetary payments of past due benefits underpayments;

. 

### . . 

### ." ~tlu~*e.er, 283 hlont. at 223.942 P.2d 76-77. We held: [\nilhen a part>, through actibe litigation, creates a common fund whtch directlybenefits an ascertainableclass-ofnon-participatingbeneficiaries, those non-participating beneficiaries can be required to bear a portion of the litigation costs, including reasonableattorney fees. Accordingly, thcpartywho creates the common ftind is entitled, pursuant to the common fund doctrine, to reimbursement of his or her reaso~lable attorney fees from that fund.348 P~~rsuantto ;\h4rer7 we conclude that ciairnants' attorneys 

### in this case are entitled to

cornrnon fund attorneyfecs. The attomoys representing Rausch, Fisch andFrost all engaged in acti~velitigation which prescncd the benefit of irnrnediate impaim-rent awards to pernlanently totally disabled claimants. The attorneys incurred legal costs and fees 

### in thc preservation of thatright, and the common fundwillbenefit an ascertainable classofworkers who were denied irnrnediatepayment of an impairment awardby the State Fund which they

were legallyentitled to receive. Those absent claimantswillreceive the benefit "eventhough they were not required to intervene, file suit, risk expense, orhire an attorney." ;Mzuer, 283 Mont. at 223, 942 P.2d at 

### 77.Accordingly, claimants' attorneys are entitled to reasonable attorney fees for the creation or preservation of a common fund, and those fees should be divided among the three firms involved in this ease. This case is remanded to the Workers' Coinpensation Court for a determination of a reasonable fee. 49 Finally, claimilnts request this Court to award a twenty percent penalty against the State Fund for its unreasonable initial denial of benefits and delay in papent of their impairment awards. However, we conclude that unreasonable conduct has not been established and, therefore, decline to assess a penalty. 7,:50 Accordingly, we conclude that permanently totally disabled claimants areentitled to inrpairtnent awards, which are due upon the receipt of the undisputed impairment rating. Furthermore, impairment awards of permanently totally disabled claimants should be characterized as a permanent total disability benefit. Finally, we conclude that claimants'attorneys are entitledto reasonable attorney fees pursuant to the common hnddoctrine, but that clairnairts are not entitled to a tkventy percent 

### penalty. "11 LVe reverse the order of the Workers' C:on~pcnsation Court and remand for further proc-cdii~gs consistent \%ith this Opinion

Wc Concur:

~~~-~~ Chief Justice

JusticesJizstlce Jim H~ce. speciall~ concurring 7/52 1 concur with the holding 

### of the Court hereii~, and offer the f01iowi1:g comments in regard to lssuc I. 753 The CiTorl\ers' Compens:ttion Court was hcedwith theunenviabicdutyofcontruing,

not just one statute. but the cntlret) of the statutory fiamcuork surrorind~ng impa~nnent a\% ards. As exidenced by the opinions herein ofboth the Workers' Compensation Court and this Court, determiningthe proper interpretation ofthe statutes was a difficult task; even w~ith application ofmaxims of statutory construction. 

### IZ reading of the statutes gives the distinct impression that the impairmelit award is a benefit provided in all disability cases. However,

a closer re\ ie~ rc\eals that such an cntctlement is not expIicitiy created. The situation IS something akin to a group of people talking about an absent comrade. They all know he exists. Hejust isn't there. f,54 Yonetheless, I belte~e the conclusion drawn by the Court from the l~rnited drrectlon provided by the statutes is the correct one, and mould offer the follo\~ing addltioiial reasons tllerefor. I diverge from the Workers' Corllpensation Court's rationale at 20 ofits opinion, wherein it states: Cla~mants argue that. failure to tnterprct sectlon 30-71-737. MCA. as entitling permanently totally disabled claimants to impairment awards would render the section's reference to impairment awardsmeaninrrless. Ifthat were 

## - so, the Court might have to deem the statute ambiguous and eonslder the maxim of statutoi-y interpretation that coul-ts should attempt to construe a statutein a manner which docs not render it meaningless,Alhriglit v. State By und 7hroug11 Sfnte,28 1 'l4ont. i Yb.206,933 P.2d 8 IS, 82 1 (19%'). I-Iowever, failure to adopt claimants' interpretation does not render the language,- meaningless. I here are other bcncfits which a claimant mlght receive concurrently with an impairnient award, specifically, an a\\-ard fhr disfigurement, 

## 4 39-71-508(1991; i947jlMCA.andrehabilitationbenefits 39-71-1006, MCA (lt197), 39-71-2001, klCA (1991). The LVorkers' Compensation Court thtls found that its interpretation would not render meaningless the provision of $ 39-71-737; MCA, which authorized payment of in~pairtnent awards "with other classcs," because there were "othcr benefits" which a claimant might receive concurrently with an impairment award, namely, rehabilitation or disfigurement benefits Houe~er, our ease law construes "classcs" of benefits in a manner \th~ch supports the claimants' argument.

625. the Court: citing 

### Iloseil v. 

### East Butte Copper.bfinit~g Cotrzp~z~iy (1 

### 9271,78 'Ilont. 

### 579, 254 P. 880 (oven-uled on other grounds),hcld that: [TlhisCourt observed that [$39-71-71?, MCA, oftheWorkers' Compensation Act], as it existed in 1927, contemplated the possibility of four resulting conditions from an injury: (1) temporary total disability; (2) per~nanent otal disability; (3) temporarypartial disability; and (4)permanent partial disability. TheCourt hcld that the tenn "classes" mentioned in this predecessor to

## 5 -737 referred to the different types ofdisability benefits which cotrld potentially be received for a single injury. LVe held that they had to be paid successively in the orderprovided for in the statute, and that payment fortwodifferent classes eo~~ld not be made ovcl-tlie same period of time. Thus, the tern1 "class of henefits" is restrictcd by th~s interpretation to the four referenced disability classes. Given this longstanding interpretation, the provision of $ 3'1-71-737, MCA, which now authorizes payment of an itnpairment award ""with othcr classes" cannot be satisfied by the payment of rehabilitation or disfigurement benefits, as held by theLVorkers* C;ompensation Court. 1.11~s~ othcrbcneiits arcnot 

### considered 

### "disability" bcnciiis by ii~cir authorizing statutes and donor constitute ""ciasses7' ofbenefits, Consequently, i find that t!x interpretation offered b> the Workers' Compensation Court would render 

## 5 34-7i737,MCA. meaningless, and I x1:ould construe the statuteto hold illat in~psimenia\vards arc to be paid concurrently with permanent total disability benefits. 756 

### 1 disagree with the Court's rationale set forth in 

## 7 2") wherein it reasons that the Workers' Compensation Court's conclusion thatapcma~lently partiallydisabled worker can receive an impairment award while a permanently totally disabled worker is deprived ofthe award. is based upon a statutory interpretation which lcads to an absurd result. While this result may be thought to lack reason from a policy point of view, 1do not belicve this to be

an absurd result that compels a different statutory interpretation. The Legislature may very bvell decide to restrict impairment awards to partially disabled workers, but for the reasons set forth above, I do not believe it has donc so. 757 For these reasons, I concur with the C:ourt.ClziefJustice Karla M. Gray, concurriilg in par-t and disscntii~g 

### in parr.



### 758 I agree with the Court's statutory analysis at 

## 77 25 through 27, hut disagree with the remainder ofits discussion on issue one. I would affirm theWorkers' Compensation Coi~rt's conclusion that permanently total11 disabled Lvorkers are not entitled to receive impairment awardsunder the 1991and 1997Acts. As a result, I would not reach theremaining issues. 759 The Workers' Compensation Court's statutory analysis, and this Court's statutory analysis at 

## 77 225 through 27, can be summarized relativelybriefly. Both courts determined that, pursuant to 

### $ 39-71-703(1), MCA (1991), a worker who suffered a permanent partial d~sability, but was no longer entitledto either temporary total or permanent total drsab~lity benefits, was entitled to a permanent partial disability award. No stand-alone "impalrmcnt a~ard" was available to such aninjuredworker; rather, an "impanmentrattngn--basedinpart

on the amount of uage loss--mas calculated and used in determ~ning the ifmount of the permanent partial disability award. 

### See i;. 39-71-703(2) and (3), MCA (1991). Both courts also determined, on the other hand, that 

## 5 39-71-703(2), MCA (1997), provided for a standalone "impaitnlent avard" for an injured workerwhorecelved an impaitment rating but had

no actual wage loss. Such a worker receited only the impairment award; he or she d~d not receivepermanentpartial disabilitybenefits becauseno actual wage loss occurred. 

### See

## 5 39- 71-703(1) and (21, MCA (1997). 1 agree with tk~ese analysts. '160 ?'he Workers' Compensation Court then proceeded to address 

### $8 39-71-737, 

### MCA(1991) and (I")"), which are identical with respect to the provision under which thc clain~ants in this case asser? cntjtlen~ent o an inlpainnent atvard in? addition to permanent total disability benefits. Both statutes provide generally that compensation is to run consecutively,and that payment shall not be made fortwo classes ofdisability overthe same period; the language at issue then states, as an exception, "that impairment awards



### . . .may be paid concurrently with other classes of benefits." See $$ 39-71-737, MCA (1991) and (1997). The Workers' Compensation Court rejected the claimants' arguments thereunder, concluding that "[nleither version creates any entitlement to an impairment award.



### . . . It only prescribes when different classesofbenefitswhich are authorizedin other sectionsmay be paid concurrently. 

### TJzecluiinurztmust be 

### due the ben~fits in tlzeJirstplace for the section 

### to apply." (Emphasis added.) 

### I agree with the Workers' Compensation Court's analysis. 761 That court also addressed both the 1991and 1997versions of

## 5 39-71-710, MCA, on which the claimants relied. While the statutes differ in detail, they generally address termination of certain benefits on retirement and remaining liability for other benefits; specifically, 

## $5 39-71-710, 

### MCA (1991) and (1997), both state that, on a claimant's retirement, "the insurer remains liable for.

. 

### .any impairnlent award.



### . . ." As with 

## 5 39-71- 737, MCA, the Workers' Compensation Court concluded that the latter language "can only bc construed as indicating that liability for the award must exist in the first instance," independently of 

## 5 39-71-710, 

### MCA, and does not create any entitlement to benefits nor otherwise created in the Workers' Compensation Act. Again, I agree with the Workers'762 itis not altogether clear whether this Counhas determined directlythat the Workers' Compensation Court erred in its statutory analysis of 

## $3 39-71-710 and 39-71-737, MCA, since its opinion does not 

### expressly address those analyses. Instead of doing so. the Court moves to a "final eonsideraf on" as a necessary part of its "statutorj analysis." and accepts the claimants'argumentthat to disallowanimpairmentawardtopermanently totallydisabled claimants. when such an award is statutorily provided to permanently partially disabled claimants, "would lead to an absurdresult, and contravene the intent underlying theWorkers' Compensation Act." The Court offers no authority in this regard, but relies on 

### .John,sotz for the general principle that "[wlhen more than one 

### interpretation ispossible, ucwill reject an interpretation that leads to an unreasonable result 

### in fa~ror of another that will lead to a reasonable result." It is my Licw that the Court ens in these regards. 1/63 First, the Court does not state how "more than one interpretation is possible" of the statutes and language at issue here. While it obsenes that impairment awards are "recognized" in

## $3 39-71-710 and 39-71-737,

### MCA, that observation does not explain how "recognition" of thc existence of impairment awards else~vherein the Workers' Compensation Act properly results in a determination that some statute provides an entitlement to an impaiment award. Our first rule in ascertaining legislative intent is to construe theplain language ofthe statutes atissue. ,Tee, 

### e.g.,Lalzgenio v. 

### A'fontrirztr

### Rail Link, 

### Inc., 2001 MT 273, 

## 71 22, 307 Mont. 293,l 22, 38 P,3d 782, qi 22 (citations omitted). Theplain language ofthese statutes doesnotsupport the Court's implicit determination that more than one interpretation is possible here under any ordinary rules of statutory constl-u-uction. 164 Nor do I believe the Court's somewhat blithe statement that the result produced by a proper statutory analysis would bc "unreasonable and cannot have been the Legislature's intentH--withoutany legal ai~alysis--is sufficient to create a right to an impairment award when no statute does so. The job of courts "is simply to ascertain and declare what is in terms or in substance" contained in a statute, "not to insert what has been omitted.



### . . 

## ." Section 1-2-101, MCA. The Court here is inserting into a purely statutory scheme an entitlement to a right not provided therein. 

### I cannot agree, 765 1would affirm the Workers' Compensation Court's conclusion that thesepermanently totally disabled claimants arenot legally entitled to an impairment award in addition totheir other benefits.