Order Granting Respondent's Motion for Summary Judgment

that term is defined in § 39-71-1011(2), MCA. Since Trevino does not have animpairment rating of 15% or greater and does not meet the statutory definition of beinga “disabled worker,” she is not entitled to vocational rehabilitation benefits under § 39-71-1006, MCA. State Fund is therefore entitled to summary judgment on this issue.III. Whether this Court should grant summary judgment to State Fund on theissues of Trevino’s entitlement to her costs, attorney fees, and a penalty. 34 State Fund further argues that it is entitled to summary judgment on the issues ofwhether Trevino is entitled to her costs, attorney fees, and a penalty against State Fundunder the applicable statutes. 36 State Fund argues that under §§ 39-71-611, -2907,MCA, this recovery would only be available to Trevino if she prevailed in her otherclaims. 37 Trevino does not dispute this to be the case, and indeed the language of theapplicable statutes does not support recovery of these items unless a claimant prevailson the underlying issue. Since I have determined that State Fund is entitled tosummary judgment in its favor on the issues of Trevino’s entitlement to PPD andvocational rehabilitation benefits, I further conclude that State Fund is entitled tosummary judgment in its favor on these remaining issues since Trevino is not theprevailing party.Order 35 Respondent’s motion for summary judgment is GRANTED. 36 Pursuant to ARM 24.5.348(2), this Judgment is certified as final and, forpurposes of appeal, shall be considered as a notice of entry of judgment.DATED in Helena, Montana, this 23 rd day of January, 2013.(SEAL)/s/ JAMES JEREMIAH SHEAJUDGEc: Richard J. MartinKevin BraunSubmitted: January 15, 201336 Opening Brief at 2.37 Opening Brief at 6.Order Granting Respondent’s Motion for Summary Judgment – Page 8