                                           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
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




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