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1 0 81-228 4.

IN THE SUPREME COURT OF THE STATE OF MONTANA
1982

JOHN

C.

VAN DAVEER, Claimant and Respondent,

STAUFFER CHEMICAL COMPANY, Employer, and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBUHG, Insurer, Defendants and Appellants.

Appeal from:

Workers' Compensation Court Honorable William Hunt, Judge presiding

Counsel of Record: For Appellants: James P. Harrington argued, Butte, Montana For Respondent : Keefer and Roybal, Biilings, Montana Neil S. Keefer argued, Biliings, Montana

Submitted: Decided: Filed: "Ski-'

June 21, 1982 September 9, 1982

.I ~982

M r . J u s t i c e John Court.

C.

Harrison delivered

t h e Opinion o f

the

T h l s a p p e a l a r i s e s from a J u l y 25,

1 9 8 0 judgment

of

t h e W o r k e r s ' C o m p e n s a t i o n C o u r t i n w h i c h J o h n C. the claimant,

Van D a v e e r , total

was

awarded

additional

temporary

d i s a b i l i t y b e n e f i t s , a n i n d e m n i t y award f o r d i m i n i s h e d e a r n i n g c a p a c i t y , p e n a l t y f o r l a t e payment, and a t t o r n e y f e e s .

The e m p l o y e r ' s r e q u e s t f o r r e h e a r i n g was d e n i e d by o r d e r o f A p r l l 1 6 , 1981. On S e p t e m b e r 2 4 , summer job as a 1978, for Van Daveer, w h i l e working a

switchman

S t a u f f e r Chemical

Company,

f e l l f r o m a r a i l r o a d c a r and w a s c r u s h e d b e t w e e n t h e c a r a n d a brick wall. fractured ribs, Van D a v e e r s u s t a i n e d a c o l l a p s e d l u n g , and numerous o t h e r internal injuries. six
He

u n d e r w e n t s u r g e r y and was h o s p i t a l i z e d i n i n t e n s i v e care f o r
a t l e a s t a week.

A f t e r t h e i n j u r y , Van D a v e e r d i d n o t i n t e n d t o r e t u r n to Stauffer but rather planned to return to school to

complete h i s degree. Bartlett, On January

He discussed

t h i s intention with Dr. i n t h e case. Van Daveer to

t h e only medical
4,

expert testifying released

1979,

Dr.

Bartlett

r e s u m e " f u l l , n o r m a l a c t i v i t i e s and d u t i e s . " Van wlnter Daveer and returned to school that he in January 1979 f o r

quarter

testified

continued

to

suff6r a

irom extreme pain. hernia at the

I n mid-February the March original
23,

Van D a v e e r d e v e l o p e d incision. and

s i t e of

Corrective again

s u r g e r y was

performed

1979,

Bartlett

r e l e a s e d Van Daveer f o r f u l l a c t i v i t y a s o f May 1, 1 9 7 9 . Van D a v e e r g r a d u a t e d f r o m Montana S t a t e U n i v e r s i t y i n c i v i l e n g i n e e r i n g i n August 1 9 7 9 and c u r r e n t l y i s employed

wit.h t h e Mont.ana Power Company a s a n e n g i n e e r .
At

the hour

time
for

of

the

accident, per and

Van week. his

Daveer
His

was

paid

$7.53 total

per

fort-y hours per week

temporary permanent

rate

was

$188

maximum

p a r t i a l rat.e was $94 p e r week. Van D a v e e r p r o p e r l y g a v e S t a u f f e r n o t i c e o f h i s claim and filed f o r compensation. N a t i o n a l Union F i r e I n s u r a n c e

Company a c c e p t - e d l i a b i l i t y f o r Van D a v e e r ' s i n j u r y , p a i d a l l medical payments due, and paid weekly 25, temporary 1979. t-otal

disability

benefits

t-hrough February

National

then terminated

a l l c o m p e n s a t i o n and c l a i m e d a n o v e r p a y m e n t

o f $ 9 6 6 . 8 6 f o r p a y m e n t s made b e t w e e n J a n u a r y 3 a n d F e b r u a r y 25, 1 9 7 9 . National payments problem. deducting on r e i n s t . it u t e d 21, 1979, temporary
at

tot.al d i s a b i l i t y
of Flay the
1,

March
It

the

time

hernia 1979, of

continued claimed

payments

through and

the

overpayment

making

payment

$161.14 o n S e p t e m b e r 28, 1 9 7 9 . Van D a v e e r c l a i m e d h e was e n t i t l e d t o t e m p o r a r y t o t a l p a y m e n t s f r o m t h e d a t . e o f h i s i n j u r y t o August. 1, 1 9 7 9 , and t o a f u r t h e r I1indemnit.y a w a r d . " The case was s u b m i t - t e d t-o t h e W o r k e r s ' Compensat i o n Court court on the pretrial that order Van and briefs of counsel. not with have The been

concluded fit to

Daveer

would job

physically

return

t o h i s old

St.auffer on

J a n u a r y 3 , 1 9 7 9 , and t . h a t h e was e n t i t - l e d t o t e m p o r a r y tot-a1 disability 1979. The c o u r t . f u r t h e r c o n c l u d e d t h a t r e s i d u a l e f f e c t s o f Van Daveer's injury limited h i s abi1it.y t o o b t a i n c e r t a i n b e n e f i t - s from t h e d a t e of injury t o August
1,

einployment therefore, weeks. The

a s an

engineer

in

the

open

labor

market., of

and, 100

h e was e n t . i t l e d t o a n " i n d e m n i t . ~ a w a r d "

court

computed

temporary

total

compensation

b e n e f i t s f r o m S e p t e m b e r 24, per week,

1 9 7 8 , t o A u g u s t 1, 1 9 7 9 , a t $ 1 8 8 already the paid, for

less
To

the that

amount figure, or

a

total

of

$4,162.86. penalty amounted 100 weeks for

court pay

added

a 20 p e r c e n t
which

delay

refusal

t.o

compensation

t o $832.57.

In addition,

t h e " i n d e m n i t y award" o f $9,400. Each of these

a t $94 p e r week t o t a l e d

a m o u n t s w a s t o be p a i d i n a lump sum. S t a u f f e r and N a t i o n a l p e t i t i o n e d f o r r e h e a r i n g . The

p e t i t i o n was d e n i e d A p r i l 1 6 , 1 9 8 1 , and t h i s a p p e a l e n s u e d . Four i s s u e s a r e b e f o r e t h i s Court on review: 1. total W h e t h e r t h e c o u r t ' s award o f a d d i t i o n a l t e m p o r a r y benefits

compensation

was

supported

by

substantial

evidence? 2. Whether t h e c o u r t ' s i n d e m n i t y award w a s s u p p o r t e d

by s u b s t a n t i a l e v i d e n c e ? 3. Whet.her t h e c o u r t ' s imposition of

a penalty was

s u p p o r t e d by s u b s t a n t i a l e v i d e n c e ?
4.

Whether

the

court

erred

in

awarding

attorney

fees? AODITIOhAL BENEFITS The f i r s t i s s u e t o b e c o n s i d e r e d i s w h e t h e r t h e r e is substantial evidence t.o If support there
is

the

award

of

additional evidence

disability benefits. support t h e Workers'

substantial

to

Compensation Court,

t ~ h i sC o u r t c a n n o t

overturn that decision.

H o l t o n v . S t o l t z e ( 1 9 8 1 ) , - Mont

.

National disability substantial stipulation reinstituted 21,

argues

the

court's arbitrary

award and

of

additional by

benefits evidence. which

was

unsupported

National

points

to

t.he

pretrial

states: total

"Thereafter, disability

defendant.-insurer payments on March

temporary

1 9 7 9 when C l a i m a n t a g a i n became d i s a b l e d b e c a u s e o f

a

h e r n i a problem

. . ."

(Emphasis added.)

National argues t-hat t h i s s t i p u l a t i o n , in a d d i t i o n t o
Dr.

B a r t l e t t - l s f u l l m e d i c a l r e l e a s e o f Van D a v e e r o n J a n u a r y

4,

1979, p r e c l u d e s a

f i n d i n g of

d i s a b i l i t y bet-ween J a n u a r y

a n d March 2 1 , 1 9 7 9 . The c o u r t c o n c l u d e d t - h a t s i n c e a h e r n i a i s c a u s e d by exertion, if the original surgery incision

was herniating

from t h e d a i l y a c t i v i t i e s a s s o c i a t e d w i t h a t t e n d i n g s c h o o l ,
it

could

n o t h a v e b e e n s u f f i c i e n t l y h e a l e d t.o h a v e a l l o w e d

Van D a v e e r t o r e t u r n t o h i s j o b a t S t a u f f e r i n J a n u a r y .
Dr.

Bartlett testified

that

he knew,

a t t h e t i m e he

r e l e a s e d Van D a v e e r f o r r e t u r n t.o w o r k ,

t h a t Van D a v e e r d i d Bartlett also

n o t i n t e n d t o ret-urn t o h i s job a t S t a u f f e r .

s t a t - e d h e was n o t f a m i l i a r w i t h t h e A m e r i c a n M e d i c a l Associat-ion Rating Guides because he d i d n o t o f t e n make those the

d e t - e r r n i n a t i o n s a n d h i s e x a m i n a t i o n o f Van D a v e e r was o f n a t u r e of a follow-up: S o , b a s i c a l l y , D o c t o r , would i t b e f a i r s t a t e t h a t , r e a l l y , a t no t i m e d i d you e v e r s i t down w i t h him and g o t h r o u g h t h e j o b t h a t he had a t S t a u f f e r - and s a y , ' A l l r i g h t , you c a n g o d o t h i s t o d a y o r y o u c a n d o i t next week'?
"A. I d i d n ' t d o t h a t and had no i n t e n t i o n o f doing t h a t . What I mean by t.he p h y s i c a l f i t n e s s o f him was h e w a s a b l e t o p e r f o r m n o r m a l a c t i v i t i e s as s t a t e d i n my l e t t - e r . I d i d n o t go t h r o u g h and d o a d i s a b i l i t y e x a m i n a t i o n on him. I wasn't requested to. I w a s g i v i n g a follow-up."

.o t

Van D a v e e r t e s t i f i e d h e e x p e r i e n c e d p a i n i n h i s h i p s and c h e s t a f t e r J a n u a r y 1 9 7 9 w h i c h i m p a i r e d h i s movement and would have prevented his return

t o work a t S t a u f f e r .

He

s t a t e d he b e l i e v e d

he c o u l d n o t have r e t u r n e d t o S t a u f f e r ,

i f h e had e v e r i n t e n d e d t o d o s o , u n t i l A u g u s t 1, 1 9 7 9 .

W f i n d t h e c o u r t ' s d e t e r m i n a t i o n of temporary t o t a l e
disability p a y m e n t s d u e Van D a v e e r f r o m t h e d a t e o f

injury

t o A u g u s t 1, 1 9 7 9 , t o be s u p p o r t e d b y s u b s t a n t i a l e v i d e n c e . INDEMNITY AWARD I n h i s p e t i t i o n f o r a h e a r i n g Van D a v e e r r e q u e s t e d a n
"indemnity

award,"

but

did

not

specify

the

statute

under

w h i c h h i s r e q u e s t was made. f o u n d t h a t he s u f f e r s

The W o r k e r s ' C o m p e n s a t i o n C o u r t e f f e c t s of his injury

from r e s i d u a l

w h i c h would " l i m i t h i s a b i l i t y t o o b t a i n c e r t a i n employment as an engineer in the open l a b o r market" and, therefore,

made a n " i n d e m n i t y award o f 1 0 0 w e e k s . " This Court d i s a b i l i t y of Court. Holton the v. recently whole upheld by a the f i n d i n g of Workers' There, 40 p e r c e n t Compensation

man

Stoltze,

supra.

two p h y s i c i a n s

gave the claimant d i s a b i l i t y ratings--one other
15

1 0 p e r c e n t and t h e considering pain the and

percent. age, actual found a the

The

court, work and

after

claimant's disability, capacity,

education, wage 40

experience,

loss

loss of

future Based 200

earning on that of

percent

disability.

determination,

court

awarded

claimant

weeks

b e n e f i t s a t $ 4 5 p e r week. Here, d i s a b i l i t y of In fact, t h e c o u r t made no f i n d i n g o f t h e w h o l e man or o f did not specify
it

a percentage of t h e body. 100-week

a n y member o f basis for its

it

any

determination,

nor d i d

specify the

s t a t u t e under which

t h e award was made. t.ion t o be

W e f i n d such an unexplained det-erminaand w e return this question
to t h e

arbitrary,

W o r k e r s ' C o m p e n s a t i o n C o u r t f o r more c o m p l e t e f i n d i n g s . PENALTY The next i s s u e on review

is

whether

a

20

percent

p e n a l t y f o r u n r e a s o n a b l e d e l a y a u t h o r i z e d b y s e c t i o n 39-712907, MCA, w a s National from t h e d a t e o f warranted here. paid Van Daveer temporary total payments

i n j u r y through February 25,

1979, s t o p p i n g

t h e payments a f t e r r e c e i v i n g D r .

Bartlet.tls medical r e l e a s e .

Van D a v e e r ' s h e r n i a s u r g e r y and s u b s e q u e n t r e c o v e r y r e q u i r e d additional payments temporary

t-otal payments.

National

made

the

f r o m March 1, 1 9 7 9 t h r o u g h May 1, 1 9 7 9 , when D r . Since Dr. work on

B a r t l e t t a g a i n g a v e Van D a v e e r a m e d i c a l r e l e a s e .
Bart1et.t

had

originally

released

Van

Daveer

for

J a n u a r y 5, 1 9 7 9 , N a t i o n a l c l a i m e d a n o v e r p a y m e n t . o f $ 9 6 6 . 8 6 for payments made into February.
It

subtracted

this

o v e r p a y m e n t f r o m p a y m e n t s d u e f r o m March t h r o u g h May and o n S e p t e m b e r 28, 1 9 7 9 , p a i d Van Daveer t.he $161.14 r e m a i n d e r . Robert Adjustment
W.

Keene,

branch

manager

for

the

General

Bureau,

testified

via deposition that a f t e r the

S e p t e m b e r p a y m e n t , Van D a v e e r was owed n o t h i n g f u r t h e r The c o u r t s u b s e q u e n t l y made F i n d i n g of F a c t No. "The p o s i t - i o n o f t h e i n s u r a n c e c a r r i e r t h a t c l a i m a n t is e n t i t l e d t o a b s o l u t - e l y n o t h i n g c o n s t i t u t e s a d e l a y o r r e f u s a l t o p a y compens a t . i o n b e n e f i t s s o a s t o e n t i t - l e c l a i m a n t t.o a 20% p e n a l t y a s p r o v i d e d by s e c t i o n 39-712907, MCA." In position h i s deposition, that Van Daveer Keene was stated not that he

.
20:

based t.o

his

entitled

further

payments on D r .

B a r t l e t t ' s medical r e l e a s e .

The p e n a l t y is a u t h o r i z e d f o r " u n r e a s o n a b l e d e l a y o r

r e f u s a l t o pay." not, however,

S e c t i o n 39-71-2907,

MCA.

The p e n d l t y i s

intended to e l i m i n a t e t h e r i g h t of an i n s u r e r S t e f f e s v. 93 L e a s i n g Co.,

t o assert a l e g i t i m a t e defense. Inc. ( 1 9 7 8 ) , 1 7 7 Mont.

83, 580 P.2d 450.

B a s e d on t h e f a c t s i n t h i s c a s e , w e f i n d t h e c o u r t ' s i m p o s i t i o n o f t h e 20 p e r c e n t p e n a l t y u n s u p p o r t e d b y s u b s t a n t l a l evidence.

"The

triggering

event

for

the

purpose

of

awarding

p e n a l t i e s f o r u n r e a s o n a b l e d e l a y or r e f u s a l t o p a y compensat l o n is t h e i n s u r e r ' s compensable injury." r e c e i p t of medical v e r i f i c a t i o n of a Holton v. S t o l t z e ( l 9 8 1 ) , - Mont 1835, 1838. of compensable t h a t Van

.

, - 637 P. 2d 1 0 , 1 3 , 38 S t .Rep.
Here,
injury,

rather

than

a

verification

the

insurer received medical v e r i f i c a t i o n and c a p a b l e o f

Daveer w a s r e c o v e r e d a s o f May 1, 1 9 7 9 . Although, later, the court

returning t o f u l l duty

based

on d e p o s i t i o n s t a k e n Van Daveer' s

nearly temporary

a

year total

determined

d i s a b i l i t y payments should have extended

beyond

that date,

we
the

find

it w a s n o t u n r e a s o n a b l e

for the

i n s u r e r t o r e l y on the court's

m e d ~ c a l releases.

W e

therefore

reverse

i m p o s i t i o n o f a 20 p e r c e n t p e n a l t y .
ATTORNEY FEES

I n s u r e r 1s

entire

argument

that

attorney

fees

were

i m p r o p e r l y awarded

is b a s e d on t h e

p r e m i s e t h a t Van D a v e e r

s h o u l d n o t p r e v a i l on t h e o t h e r i s s u e s b e f o r e t h e C o u r t . The c o u r t a w a r d e d a t t o r n e y f e e s .
MCA,

S e c t i o n 39-71-611,

p r o v i d e s f o r such a n award:

"In the event an i n s u r e r

d e n i e s l i a b i l i t y f o r a claim f o r compensation o r t e r m i n a t e s compensation b e n e f i t s and the

claim

is

later

adjudged

c o m p e n s a b l e by t h e w o r k e r s ' the

compensation judge o r on a p p e a l ,

i n s u r e r s h a l l p a y r e a s o n a b l e c o s t s and a t - t o r n e y s ' f e e s compensation c o u r t . " not deny 1iabilit.y but did

a s e s t a b l i s h e d by t h e w o r k e r s ' Here, the insurer did

t e r m i n a t e cornpensat-ion b e n e f i t s on a claim which upheld

h a s been

as compensable.

We,

therefore,

a f f inn t h e c o u r t ' s

award o f r e a s o n a b l e c o s t s and a t t o r n e y f e e s . W e remand this

case

to

the

Workers'

Compensation

Court f o r a c t i o n i n accordance with t h i s opinion.

Justices

Mr.

J u s t i c e F r a n k B. M o r r i s o n c o n c u r r i n g :
I concur i n p a r t ,

and d i s s e n t i n p a r t .

T h i s case need n o t

b e remanded as c l a i m a n t is n o t e n t i t l e d to a n i m p a i r e d e a r n i n g c a p a c i t y award. The r e c o r d c o n t a i n s a t o t a l l a c k o f e v i d e n c e to

s u p p o r t a f i n d i n g t h a t c l a i m a n t s u f f e r e d a 20% l o s s o f e a r n i n g capacity. The f o l l o w i n g e v i d e n c e b e a r s upon t h a t q u e s t i o n .

DEPOSITION OF CLAIMANT: (PP* 16, 17, 1 8 )
"Q. Now, w h a t t y p e o f work d o you d o a l l d a y now a t t h e p r e s e n t t i m e ?
"A. L i k e I s a i d , most o f t h e week, a t l e a s t 35 h o u r s i s d e s k work, i s d e s i g n work. And 5 h o u r s a week i s f i e l d work, which i n v o l v e s t r a v e l i n g and i n s p e c t i n g

.

"Q. Your d e g r e e from Bozeman i s i n C i v i l E n g i n e e r i n g , is t h a t c o r r e c t ?
"A.

Correct.

"Q. You a r e employed by t h e Montana Power Company a s a n e n g i n e e r ?

"A.

Correct.

"Q. And you a r e f a m i l i a r , a r e you J o h n , w i t h t h e t y p e o f work t h a t c i v i l e n g i n e e r s d o ?

"A.
"Q.

Yes,

I am.

job, "A.

You are a b l e , I t a k e i t , t o d o y o u r p r e s e n t is t h a t c o r r e c t ? T h a t ' s correct.

"Q. A r e t h e r e some c i v i l e n g i n e e r i n g j o b s t h a t y o u f e e l t h a t you would be u n a b l e to d o ?

"A. The area I would l i m i t m y s e l f t o would b e , i n f a c t , i f I was t o h a v e a j o b t h a t r e q u i r e d a g r e a t d e a l of t r a v e l i n g p o s s i b l y heavy construction

.

"Q.

Can you t e l l t h e r e a s o n f o r t h a t o p i n i o n ?

"A. I would s a y t h a t I would be h e s i t a n t to d o something l i k e t h a t because I r e a l l y haven't t r i e d to t e s t t h e f u l l c a p a b i l i t i e s of my p h y s i c a l w e l l b e i n g as f a r a s c o m p l e t e h e a l i n g from t h e i n j u r i e s . And I w o u l d n l t w a n t to j e o p a r d i z e m y s e l f or a n y b o d y e l s e i n s u c h a s i t u a t i o n w h e r e

I m i g h t g e t h u r t s a y i f I was to be i n t h e p r o x i m i t y o f h e a v y c o n s t r u c t i o n and s o m e t h i n g d i d h a p p e n and I was c a l l e d on t o d o s o m e t h i n g t h a t r e q u i r e d some h e a v y p h y s i c a l r e s p o n s e

.

"Q. A r e t h e r e a n y a c t i v i t i e s t h a t you c a n ' t do now t h a t you c o u l d d o b e f o r e y o u r i n j u r y ? "A. N o t t h a t I know o f . of things afterwards."
A t p a g e 36 o f

I h a v e n 1t t r i e d a l o t

t h e d e p o s i t i o n t h e c l a i m a n t gave t h e

f o l l o w i n g r e s p o n s e s to q u e s t i o n s propounded on c r o s s - e x a m i n a t i o n :
Q . I mean i n t h e f i e l d of c i v i l e n g i n e e r i n g i t s e l f . Okay, p u t t i n g a s i d e t h e q u e s t i o n o f w h e t h e r t h e r e was a n a c c i d e n t i n v o l v i n g h e a v y e q u i p m e n t and you b e i n g a r o u n d and c a l l e d t o l i f t a v e h i c l e o f f o f somebody or s o m e t h i n g l i k e t h a t , b u t j u s t i n your f i e l d a l o n e of c i v i l e n g i n e e r i n g , t h e r e is n o t h i n g t h a t r e q u i r e s a n y f u n c t i o n s t h a t you c a n ' t p e r f o r m , is t h e r e ? "A. The o n l y area I would d o i n g is p o s s i b l y i f I was j o b w h i c h would r e q u i r e m e climbing f o r a long period

q u e s t i o n myself i n on a l a r g e i n s p e c t i n g to d o a l o t o f of t i m e .

"Q. O t h e r t h a n t h a t , t h e p e r f o r m a n c e , t h e r e is n o t h i n g you c o u l d c o n c e i v e o f t h a t you c o u l d n ' t d o , is t h e r e ?

The d e p o s i t i o n o f t h e t r e a t i n g p h y s i c i a n was a d m i t t e d .
Dr.

J o h n D. B a r t l e t t g a v e t h e f o l l o w i n g t e s t i m o n y :

"Q. Okay, a t t h e t i m e t h a t you examined him on J a n u a r y 4 , 1 9 7 9 , d i d you form a n o p i n i o n , b a s e d upon a r e a s o n a b l e d e g r e e o f m e d i c a l c e r t a i n t y , a s t o w h e t h e r he had a n y i m p a i r m e n t o r d i s a b i l i t y from t h i s a c c i d e n t a t S t a u f f e r C h e m i c a l Company?
"A.

I f e l t t h a t he was p h y s i c a l l y f i t f o r d u t y ,

yes.
"Q. You f e l t t h a t h e w a s w i t h o u t a n y i m p a i r m e n t o r disability?

"A.

Yes

."

The o n l y t e s t i m o n y i n t h e r e c o r d to s u p p o r t a p e r m a n e n t d i s a b i l i t y award is c l a i m a n t ' s t e s t i m o n y t h a t h e m i g h t l i m i t hims e l f i n h i s work from h a v i n g t o do a " g r e a t d e a l of t r a v e l i n g and p o s s i b l y heavy c o n s t r u c t i o n . " T h e r e is n o t e v e n s e l f - s e r v i n g

t e s t i m o n y b y t h e c l a i m a n t t h a t s u c h a l i m i t a t i o n would i n a n y way a f f e c t h i s a b i l i t y to e a r n i n t h e f u t u r e . Although it is p r e f e r -

a b l e t o c a l l a n e m p l o y e r , a s u p e r v i s o r , o r some e x p e r t w i t n e s s

to e s t a b l i s h t h a t p h y s i c i a l l i m i t a t i o n s af f e c t earning c a p a c i t y ,

some " s u b s t a n t i a l c r e d i b i l e e v i d e n c e " c o u l d be p r o v i d e d b y t h e
claimant himself. award i s l a c k i n g . I n t h i s r e c o r d , even t h a t s u p p o r t for t h e In f a c t , the only medical evidence i n the

r e c o r d s u g g e s t s t h a t c l a i m a n t has n e i t h e r p h y s i c a l impairment nor disability.
I do not agree with the suggestion in the majority

o p i n i o n t h a t a medical f i n d i n g of p e r c e n t a g e of " d i s a b i l i t y of t h e w h o l e man or o f a n y member o f t h e body" i s d e t e r m i n a t i v e of a n i s s u e involving impaired earning c a p a c i t y

.

Nevertheless, the

m e d i c a l t e s t i m o n y i n t h i s r e c o r d , when viewed i n c o n j u n c t i o n w i t h c l a i m a n t ' s t e s t i m o n y , d o e s n o t s u p p o r t t h e f i n d i n g o f a 20% i m p a i r e d e a r n i n g c a p a c i t y and t h e r e f o r e t h e f i n d i n g s h o u l d be s e t aside.
I d i f f e r w i t h t h e m a j o r i t y i n r e m a n d i n g t h i s case.

The

c l a i m a n t s i m p l y f a i l e d i n h i s e f f o r t to p r o v i d e any e v i d e n c e o f i m p a i r e d e a r n i n g c a p a c i t y and t h e r e f o r e t h a t a s p e c t o f c l a i m a n t ' s
case m u s t f a i l .

The r e s u l t o f t h e m a j o r i t y o p i n i o n i s t o g i v e

c l a i m a n t a s e c o n d o p p o r t u n i t y to p r o v i d e e v i d e n c e n o t p r o d u c e d initially.
I know o f n o l e g a l s u p p o r t f o r s u c h a c t i o n .

I a g r e e w i t h t h e m a j o r i t y ' s p o s i t i o n on t h e b a l a n c e of

issues.

Based upon c l a i m a n t ' s t e s t i m o n y

t h e r e is some

" s u b s t a n t i a l c r e d i b l e e v i d e n c e " to s u p p o r t a n award o f t e m p o r a r y

t o t a l d i s a b i l i t y p a y m e n t s t o c l a i m a n t u n t i l A u g u s t 1, 1 9 7 9 .
However, i n l i g h t o f t h e t r e a t i n g p h y s i c i a n ' s finding t h a t

c l a i m a n t c o u l d r e t u r n t o work i n F e b r u a r y o f 1 9 7 9 , and n o t i c e t h e r e o f t o t h e i n s u r e r , a p e n a l t y should n o t have been a s s e s s e d a g a i n s t i n s u r e r f o r suspending temporary t o t a l payments.
I would a f f i r m t h e C o u r t ' s

award o f a d d i t i o n a l t e m p o r a r y

t o t a l c o m p e n s a t i o n b e n e f i t s , a f f i r m t h e award o f c o s t s and a t t o r n e y f e e s , and m o d i f y t h e judgment to e x c l u d e t h e r e f r o m t h e award f o r l o s s o f f u t u r e e a r n i n g c a p a c i t y and p e n a l t y .

.--,

Mr. Justice John C. Sheehy concurring in part and dissenting in part: I concur with the majority in the resolution of the issues of temporary total disability payments, and attorney fees. I disagree with and dissent from the majority opinion

insofar as it remands the indemnity award, and denies the worker's right to a penalty in this case. It distorts the record to say that there is no basis in the evidence and in the findings and conclusions for the indemnity award. (The indemnity award is for permanent partial

loss of earning capacity.) At the outset, it is stated here as reinforcement that when the Workers' Compensation Court is considering an indemnity award, it need not consider as a determinative fact that the employee is earning as much or more money as he did before the injury. Fermo v. Superline Products
Of course, if loss of

(1978), 175 Mont. 345, 574 P.2d 251.

earning capacity can be proven through an actual, post-injury loss of earnings, that is an item for the Workers' Compensation Court to consider. Walker v. H. F. Johnson, Inc. (1978), 180 It was settled in Shaffer v.

Mont. 405, 591 P.2d 181.

Midland Empire Packing Co. (1953), 127 Mont. 211, 213-214, 259 P.2d 340, 342, that the test of whether an injured worker is entitled to an indemnity award is not whether there has been a loss of earnings or income caused by the injury, but rather whether there has been a loss of earning capacity--a loss of ability to earn in the open labor market. The evidence in this case discloses that this injured worker has sustained a loss of ability to earn in the open labor market. This injury occurred when the employee,

working as a switch man, was crushed between a brick wall

and a moving train car.

His injuries were found by the "blunt trauma to the

Workers' Compensation Court to be:

chest and abdomen; abrasion right lobe of liver; hemoperitoneum; contusion to left kidney with hematoma at base of gallbladder; hemopneumothorax of right lung; [and] fractured ribs 5 through 11 on the left." seriously injured. With respect to the worker's residual post-injury difficulties, the Workers' Compensation Court made findings that the worker has occasional discomfort on the left side of his chest due to the nature of the healing of his ribs; that when he sits for a long period of time, he experiences tiredness in his back and pain in his legs. The court also He was substantially and

found that after his injury the worker received a degree in civil engineering from Montana State University and is employed as a civil engineer by the Montana Power Company. However, the worker's opportunity to work as a civil engineer is limited in that he can not accept a job that requires a great deal of traveling or that is involved with heavy construction. The claimant stated the reason for this limitation

is that he would not want to jeopardize himself or anybody else in a situation where

". . . I might

get hurt, say if I

was to be in the proximity of heavy construction and something did happen and I was called on to do something that required some heavy physical response." The pain and "bothersomeness"

in his rib cage is due to the fact that a couple of the ribs have healed a little out of place and they protrude farther from his chest than the other ribs. dull pain in the chest. He has a continuing

On these findings, the Workers1 Compensation Court concluded: "The evidence clearly establishes that claimant still suffers some residual effects from his injury that would limit his ability to obtain certain employment - - engineer in the open as an labor market. It appears that an indemnity award of 100 weeks would be an appropriate award in his case." (Emphasis added.) We are required to view the evidence on appeal of a case of this kind in the light most favorable to the prevailing party. Hellickson v. Barrett Mobile Home Transport, Inc. (1973), In considering such evidence

161 Mont. 455, 507 P.2d 523, 525. we should bear in mind these rules:

. We will not substitute our judgment for that of the trier of fact, but rather will o n l y cons c c r whether substantial credible evidence supports ilthe findings and conclusions. Those findings will not be overturned by this court unless there is a clear preponderance of t.vidcnce against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings . Cameron v. Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 945.

". .

. ."

We owe a good deal of respect to the findings and conclusions adopted by the Workers' Compensation judge. Under

section 39-71-2905, MCA, he is given the power to fix and determine any benefits to be paid and to specify the manner of payment to a claimant. The Workers1 Compensation judge is

required in that same statute to make his determinations in accordance with the law as set forth in Ch. 71 of Title 39, MCA. Indemnity awards arise by virtue of the provisions of The latter section

sections 39-71-705 and -706, PICA.

provides that in all cases of permanent injury less than total, the compensation for permanent partial disability shall bear such relation as the disability bears, in this case, to 500 weeks. By determining here that the claimant

was entitled to 100 weeks for his indemnity award, the Workers1 Compensation Court impliedly found that he had suffered a loss of 20 percent of earning capacity. record bears this out. Although an estimate from a medical person as to the percentage of total disability of an injured worker is undoubtedly helpful to the Workers1 Compensation Court, I find nothing in the law which requires the testimony of a medical person as an absolute requisite for such an award. There is no reason why the Workers' Compensation Court cannot rely on the uncontroverted evidence of the claimant as to the amount and character of his disability, from which the Workers1 Compensation Court may draw a conclusion as to the amount of indemnity award to which the claimant is entitled. Section 39-71-706, MCA. The

Taking into account that there is a different Workers' Compensation judge now sitting than the one who heard and determined this case, it appears quite unnecessary to me to remand this case to the Workers1 Compensation judge for what will be a ministerial act: his determination that the

injuries shown by the claimant amount to 20 percent of his earning capacity. I also disagree with the majority conclusion that this claimant is not entitled to a penalty award based on the actions of the insurer in connection with his claim. The

majority is substituting its opinion for that of the Workers1 Compensation judge upon entirely wrong factors. This is not

a case where the employer-insurer had a right to rely on medical all evidence so as to refuse - further compensation. Section 39-71-2907, MCA, provides:

". . . The question of unreasonable delay or refusal shall be determined by the workers' compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein. "
The Workers' Compensation Court concluded that "[tlhe position of the insurance carrier that claimant - entitled is to - absolutely nothing constitutes a delay or refusal to pay compensation benefits

. . ."

(Emphasis added.)

The record

supports this finding and conclusion.
A review of the whole record, not shown to have been made

by the majority, would indicate that there was an unreasonable delay or refusal to pay compensation to the worker. On March 9, 1979, Mr. Keene, branch manager of the adjustment firm handling this case, wrote to the worker stating that he had been overpaid for 36 days for a total of $966.86, and demanding that Van Daveer repay that amount. This

was during the period of the worker's disability, which the majority concurs is correctly computed. On March 21, 1979, counsel for the worker wrote to Mr. Keene advising him of the development of a hernia in the long abdominal incision. In that letter, counsel advised Keene

that the overpayment could be deducted from the eventual entitlement to the worker, and that this was a case where there would be a claim over and above the temporary total disability benefits. On March 30, 1979, Keene wrote to counsel for the worker stating that they were going to deny further compensation by relying on the medical report of Dr. Bartlett that the worker suffered no residual disability, although at that time Keene had been advised that an operation for the hernia had occurred. -17-

On June 8, 1979, Dr. Bartlett wrote to Keene, stating that he had last seen the worker on March 29, 1979, and that he had released the worker for full duty as of May 1, 1979. Dr. Rartlett also indicated that since he had not seen the worker lately, he could give no further information at that time. On July 2, 1979, the worker's counsel wrote to the adjustment firm stating that a claim would be made for an indemnity award, and setting forth the amount of partial disability then owed to the worker. The letter invited any

offer that the firm might make with respect to settling the case. The insurer did not respond.

On August 23, 1979, Keene wrote to the Workers' Compensation Division, asking for permission to pay the worker a temporary total disability of 6 weeks, and to deduct therefrom the overpayment of $966.86, leaving a net payment to the employee of $161.14. On September 28, 1979, Keene addressed a letter to counsel for the worker stating that he had received a letter from the Workers' Compensation Division authorizing the deduction of the overpayment and that Reene had surrendered a check in the sum of $161.14 "as final payment of compensation benefits owing." On February 7, 1980, the employee filed his petition for a hearing to determine the compensation benefits to which he was entitled. In that petition, he asked for an

indemnity award for prospective loss of earning capacity. On April 30, 1980, the Workers' Compensation judge entered a pretrial order, in which he noted the worker contended

he was entitled to an indemnity award for prospective loss

of earning capacity, and in which the employer contended that the claimant had been paid all medical and compensation benefits to which he was entitled. The case was tried on depositions, all taken on the same day. The claimant testified to his continuing disability.

Keene testified that based on medical reports and the further testimony that day of the worker, he would still contend that the worker was not entitled to one further penny as compensation benefits. Thus, nonths after the letter of September 28, 1979, it was apparent that Keene still refused to change his mind, and was relying on medical reports that obviously were not pertinent to the present claimed condition of the worker. The Workers' Compensation Court saw this as an unreasonable delay or denial of compensation benefits. the court. The record sustains

When there is substantial evidence to support

the court's findings and conclusions, it is the duty of this Court to affirm those findings. supra. Walker v. H. F. Johnson,

I would affirm the Workers' compensation Court in
toto.

. ,
Mr. Chief Justice Frank I. Haswell:
I concur in the foregoing opinion of Mr. Justice Sheehy.

Chief Justice



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