McDanold v. B.N. Transport, Inc.

634 P.2d 175, 194 Mont. 300, 1981 Mont. LEXIS 816
CourtMontana Supreme Court
DecidedSeptember 3, 1981
Docket80-295
StatusPublished
Cited by8 cases

This text of 634 P.2d 175 (McDanold v. B.N. Transport, Inc.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDanold v. B.N. Transport, Inc., 634 P.2d 175, 194 Mont. 300, 1981 Mont. LEXIS 816 (Mo. 1981).

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

Claimant, E. L. McDanold, appeals from an order denying his petition for rehearing, entered in the Workers’ Compensation Court in and for the area of Billings, the Honorable William E. Hunt, presiding. The court previously had entered judgment against the claimant upon his original petition for hearing on June 10,1980. The judgment was based on the court’s conclusions that the claimant had [302]*302been paid benefits in excess of the proper amount, that he is not entitled to further benefits, and, that he is not entitled to receive costs or attorney fees under section 39-71-611, MCA. The claimant was not required to refund any of the excess benefits.

We reverse the lower court’s judgment that the claimant has been paid excessive benefits and is not entitled to further benefits. We remand the case for further proceedings.

The following issues are dispositive:

1. Whether the durational limits on workers’ compensation benefits imposed by former section 92-709, R.C.M. 1947 (the specific injury/indemnity statute), commence to run only upon claimant reaching maximum healing, and thus are in addition to all temporary total disability benefits received under former section 92-701, R.C.M. 1947.

2. Whether the claimant, after attaining maximum healing, could elect to proceed under either the specific injury “indemnity” statute (section 92-709, R.C.M. 1947), or under the “disability” statute (section 92-703, R.C.M. 1947).

3. Whether the claimant is entitled to a permanent partial disability award based upon a rating as to the whole man.

We find the Workers’ Compensation Court erred in concluding that the periods of benefits prescribed by a former section 92-709, R.C.M. 1947, for a specific injury limited the sum total of all benefits, including temporary total disability and permanent partial disability compensation. We hold the limitation period applied only to benefits paid under former section 92-709 or former section 92-703, R.C.M. 1947. Because of the grounds of its decision, the lower court did not make further findings necessary to decide whether the claimant is entitled to more benefits. Therefore, we must remand the case.

On June 23, 1971, while working in the course and scope of his employment with Northern Pacific Transport Company (now B.N. Transport, Inc.), claimant suffered an injury to his right ankle. The injury occurred as claimant stepped out of his transport truck and into a hole. Claimant’s preinjury wage was $162.80 per week. At the time of the accident, he was married and supporting five minor children.

After his injury the claimant was treated by several doctors. The claimant underwent surgery to his ankle in January, 1972, and again [303]*303in January, 1973. Following his injury, the claimant was unable to return to his job as a truckdriver.

Claimant was able to find only part time work at lesser hourly wages than his prior employment until April 1974, when he accepted full time work as a Montana Liquor Store clerk at an hourly wage of $2.83. Claimant continues to have problems stemming from his ankle injury which limit him to store clerk duties at the liquor store.

Claimant was placed on temporary total disability by B.N. Transport, Inc. (a self-insurer) immediately following the injury. The claimant was compensated on that basis, under former section 92-701, R.C.M., 1947, from June 24, 1971, to April 11, 1974 — a period of 146 weeks.

Claimant was placed on permanent partial disability on April 12, 1974. He was compensated on that basis for a period of 76 weeks, until September 25,1975.

On September 25, 1975, claimant’s benefits were terminated by B.N. Transport, Inc. pursuant to an opinion rendered by the Workers’ Compensation Division Bureau Chief that due to the nature of the claimant’s injury, maximum benefits were limited to 180 weeks by section 92-709. In light of the fact that B.N. Transport had paid benefits under both temporary total and permanent partial compensation plans for 222 weeks, the Bureau Chief concluded that the employer had exceeded compensation requirements.

In April 1979, claimant McDanold petitioned the Workers’ Compensation Court for an order which required the employer to continue paying benefits for the injury to his right ankle. In October 1979, a pretrial conference was held resulting in a pretrial order being issued. Trial was held in November 1979.

Following trial, the Workers’ Compensation Court concluded that the claimant was entitled to a maximum of 180 weeks of benefits including both temporary total disability benefits and permanent partial disability benefits. The court further concluded that the claimant’s employer had met and exceeded its statutory liability for benefits. The court’s findings, conclusions, and judgment denying further benefits were entered on June 10, 1980. Claimant filed a petition for rehearing, which was denied by order on July 22, 1980, and claimant appeals from this order.

B.N. Transport contends that claimant has not proceeded in a timely manner in raising the issue that benefits paid for the period of temporary total disability are separate from and not included in the period of benefits prescribed by the specific injury statute. B.N. [304]*304argues that such theory was not included in the pretrial order which took the place of claimants’ pleading, was not included in the claimant’s proposed findings and conclusions, and was only raised in the claimant’s post-trial briefs. The trial court required the submission of briefs by both claimant and B.N. prior to the making of its decision. In such briefs, claimant set forth his contentions and legal authorities on the question of the separation of the periods of temporary total disability from benefits under the specific injury statute. We have held that issues not raised at the trial level before the Workers’ Compensation Court will not be reviewed on appeal. Greger v. United Prestress, Inc. (1979), [180 Mont. 348,] 590 P.2d 1121, 1126, 36 St.Rep. 268, 275. We find that this issue of law was properly raised before the Workers’ Compensation Court prior to the entry of its findings, conclusions and judgment, and that the respondent did have the chance to be heard on the issue; therefore, the issue is properly reviewable on this appeal.

I.

Former section 92-709, R.C.M., 1947, the specific injury statute, was amended several times after the date of the claimant’s injury. On the date of the injury, June 23,1971, the statute appeared in pertinent part as follows:

“Compensation in case of specified injuries. In case of the following specified injuries, the compensation in lieu of any other compensation provided by this act, shall be as follows ...
"...

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Cite This Page — Counsel Stack

Bluebook (online)
634 P.2d 175, 194 Mont. 300, 1981 Mont. LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdanold-v-bn-transport-inc-mont-1981.