Van Daveer v. Stauffer Chemical Co.

• Court: Montana Supreme Court
• Decided: September 9, 1982
• Docket: 81-228
• Status: Published

Opinion

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: June 21, 1982 Decided: September 9, 1982 Filed: "Ski-' .I ~982 M r . J u s t i c e John C. Harrison delivered t h e Opinion o f the Court.

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. Van D a v e e r ,

the claimant, was awarded additional temporary total

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 , 1978, Van Daveer, w h i l e working a

summer job as a switchman for 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. 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 , six

fractured ribs, and numerous o t h e r internal injuries. 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. He discussed t h i s intention with Dr.

Bartlett, t h e only medical expert testifying i n t h e case.

On January 4, 1979, Dr. Bartlett released Van Daveer to

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 Daveer returned to school in January 1979 f o r

wlnter quarter and testified that he continued to suff6r

irom extreme pain. I n mid-February Van D a v e e r d e v e l o p e d a

hernia at the s i t e of the original incision. Corrective

s u r g e r y was performed March 23, 1979, and Bartlett again

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 time of the accident, Van Daveer was paid

$7.53 per hour for fort-y hours per week. His temporary

total rate was $188 per week and his maximum permanent

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 temporary t-otal

disability benefits t-hrough February 25, 1979. 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 r e i n s t . it u t e d temporary tot.al d i s a b i l i t y

payments on March 21, 1979, at the time of the hernia

problem. It continued payments through Flay 1, 1979,

deducting the claimed overpayment and making payment of

$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 on the pretrial order and briefs of counsel. The

court concluded that Van Daveer would not have been

physically fit to return t o h i s old job with 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 b e n e f i t - s from t h e d a t e of injury t o August 1,

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 einployment a s an engineer in the open labor market., and,

therefore, 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 " of 100

weeks.

The 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, 1 9 7 8 , t o A u g u s t 1, 1 9 7 9 , a t $ 1 8 8

per week, less the amount already paid, for a total of

$4,162.86. To that figure, the court added a 20 p e r c e n t

penalty for delay or refusal t.o pay compensation which

amounted t o $832.57. In addition, t h e " i n d e m n i t y award" o f

100 weeks a t $94 p e r week t o t a l e d $9,400. Each of these

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. 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

total compensation benefits 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 support the award of additional

disability benefits. If there is substantial evidence to

support t h e Workers' 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 argues the court's award of additional

disability benefits was arbitrary and unsupported by

substantial evidence. National points to t.he pretrial

stipulation which states: "Thereafter, defendant.-insurer

reinstituted temporary total disability payments on March

21, 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

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 . Bartlett also

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 Asso-

ciat-ion Rating Guides because he d i d n o t o f t e n make those

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 the

n a t u r e of a follow-up:

.o t 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." 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. 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

f o u n d t h a t he s u f f e r s from r e s i d u a l e f f e c t s of his injury

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 recently upheld a f i n d i n g of 40 p e r c e n t

d i s a b i l i t y of the whole man by the Workers' Compensation

Court. Holton v. Stoltze, supra. There, 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 1 0 p e r c e n t and t h e

other 15 percent. The court, after considering the

claimant's age, education, work experience, pain and

disability, actual wage loss and loss of future earning

capacity, found a 40 percent disability. Based on that

determination, the court awarded claimant 200 weeks of

b e n e f i t s a t $ 4 5 p e r week.

Here, t h e c o u r t made no f i n d i n g o f a percentage 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.

In fact, it did not specify any basis for its 100-week

determination, nor d i d it specify the s t a t u t e under which t h e award was made. W e f i n d such an unexplained det-ermina-

t.ion t o be arbitrary, and w e return this question to 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 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 39-71-

2907, MCA, w a s warranted here.

National paid Van Daveer temporary total payments

from t h e d a t e o f 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 temporary t-otal payments. National made the

payments 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 .

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 . Since Dr.

Bart1et.t had originally released Van Daveer for work on

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 W. Keene, branch manager for the General

Adjustment 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. 20:

"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 compen- s 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 39-71- 2907, MCA."

In h i s deposition, Keene stated that he based his

position that Van Daveer was not entitled t.o 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." S e c t i o n 39-71-2907, MCA. The p e n d l t y i s

not, however, 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

t o assert a l e g i t i m a t e defense. S t e f f e s v. 93 L e a s i n g Co.,

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 compensa-

t l o n is t h e i n s u r e r ' s r e c e i p t of medical v e r i f i c a t i o n of a

compensable injury." Holton v. S t o l t z e ( l 9 8 1 ) , - Mont . , - 637 P. 2d 1 0 , 1 3 , 38 S t .Rep. 1835, 1838.

Here, rather than a verification of compensable

injury, the insurer received medical v e r i f i c a t i o n t h a t Van

Daveer w a s r e c o v e r e d and c a p a b l e o f returning t o f u l l duty

a s o f May 1, 1 9 7 9 .

Although, based on d e p o s i t i o n s t a k e n nearly a year

later, the court determined Van Daveer' s temporary total

d i s a b i l i t y payments should have extended beyond that date,

we 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 m e d ~ c a l releases. We therefore reverse the court's

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

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

the 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

a s e s t a b l i s h e d by t h e w o r k e r s ' compensation c o u r t . "

Here, the insurer did not deny 1iabilit.y but did

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

upheld 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 .

We 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. Yes, I am.

"Q. 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 job, is t h a t c o r r e c t ? "A. 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 . I h a v e n 1t t r i e d a l o t of things afterwards." A t p a g e 36 o f 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 q u e s t i o n myself i n d o i n g is p o s s i b l y i f I was on a l a r g e i n s p e c t i n g j o b w h i c h would r e q u i r e m e to d o a l o t o f climbing f o r a long period 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 him- s 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. 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 award i s l a c k i n g . 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 (1978), 175 Mont. 345, 574 P.2d 251. Of course, if loss of 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 Mont. 405, 591 P.2d 181. It was settled in Shaffer v. 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 Workers' Compensation Court to be: "blunt trauma to the chest and abdomen; abrasion right lobe of liver; hemo- peritoneum; contusion to left kidney with hematoma at base of gallbladder; hemopneumothorax of right lung; [and] fractured ribs 5 through 11 on the left." He was substantially and 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 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. He has a continuing dull pain in the chest. 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), 161 Mont. 455, 507 P.2d 523, 525. In considering such evidence 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 con- s c c r whether substantial credible evidence supports il- the 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 con- clusions 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 sections 39-71-705 and -706, PICA. The latter section 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. The 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. 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 evidence so as to refuse - further compensation. all 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

- absolutely nothing constitutes a delay or refusal to pay to 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 record sustains

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