No. 13265
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
197 6
RUTH COSGROVE,
P l a i n t i f f and A p p e l l a n t ,
-vs -
INDUSTRIAL INDEMNITY COMPANY,
Defendant and Respondent.
Appeal from: w o r k e r s ' Compensation Court
Honorable W i l l i a m E. Hunt, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
Hoyt and Bottomly, G r e a t F a l l s , Montana
John C. Hoyt a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Marra, Wenz and Iwen, G r e a t F a l l s , Montana
J o s e p h Re Marra argued, and C h a r l e s Johnson a r g u e d ,
G r e a t F a l l s , Montana
--
Submitted: May 26, 1976
Decided : JUf- 1 6 197E
Filed: 'Ilk 1 6 1976
-
Honorable Bernard W. Thomas, District Judge, sitting in place
of Mr. Chief Justice James T. Harrison, delivered the Opinion
of the Court.
Plaintiff appeals from an adverse judgment of the
Worker's Compensation Court. The sole issue to be considered
is whether plaintiff is entitled to attorney fees under the
provisions of section 92-616, R.C.M. 1947, as amended by Chap-
ter 173, Laws of 1974.
The facts are: Plaintiff was injured in the course of
her employment on March 25, 1974. Defendant, as the employer's
insurance carrier under Plan Two of the Workmen's Compensation
Act accepted plaintiff's claim and commenced paying her com-
pensation for temporary total disability which was continued
through December 16, 1974. On December 17, 1974, defendant
notified plaintiff that effective December 16, 1974, compensa-
tion payments were being terminated on the basis of medical
opinions from two Great Falls orthopedists that plaintiff was
then able to return to work. Thereafter, plaintiff retained .
cornsel who, on or about January 10, 1975, made demand on defend-
ant that plaintiff be reinstated on compensation, since she
still complained of pain and felt unable to work. Although
defendant at that time refused to resume the compensation
payments, it did agree to have plaintiff examined further at
the Upper Extremity Clinic in Missoula and to pay the expenses
incurred by plaintiff for that examination. On February 27,
1975, plaintiff was examined at the Missoula dlinic and the
examining doctors made their report containing their diagnosis
and their recommendations reading:
"This lady needs cervical myelogram to determine
definitely whether or not there is a C-6 nerve
root impingement. If the myelogram is compatible
with clinical evaluation then anterior cervical
decompression, excision of osteophytes, and
intravertebral arthrodesis would be indicated.
It is felt that this patient is to be considered
unemployable during this period of time of eval-
uation. "
This report was received by defendant on March 17, 1975,
Defendant thereupon requested the Workmen's Compensation Division
- 2 -
(hereinafter referred to as the Division) to obtain a clarif-
ication of the last sentence of the recommendations. The
Division on March 19, 1975, wrote for a clarification. The
clarification was supplied by a letter to the Division dated
April 18, 1975, in which it was stated:
"What we meant was that until the cervical myelo-
gram was performed and some decision made as to
her definite diagnosis that I would have to con-
sider her unemployable. * * * "
This clarification was received by defendant on April
29, 1975. By letter to plaintiff's counsel dated April 30,
1975, defendant delivered a compensation check for plaintiff
in the amount of $593.56 covering the period from December 17,
1974 through April 28, 1975, and stated that defendant would
be unable to continue compensation payments beyond that date
unless plaintiff made arrangements for the myelogram.
In the meantime, on March 17, 1975, plaintiff's coun-
sel wrote to the Division demanding an emergency hearing and
asking that plaintiff be placed on temporary compensation and
that defendant be assessed with attorney fees and a ten percent
penalty. On April 30, 1975, the Division mailed notice of
hearing to be held on May 20, 1975. This notice was received
by defendant on May 1, 1975, a day following defendant's payment
of the $593.56 covering plaintiff's compensation from December
17, 1974 through April 28, 1975. On May 15, 1975 the Division
received defendant's answer and motion to dismiss plaintiff's
request for hearing in which it was stated that defendant in-
tended to continue paying "benefits until such time that a
cervical myelogram is performed at which time a definite diag-
nosis can be made." Plaintiff's counsel opposed the motion to
dismiss and the Division went ahead with the hearing on May
20, 1975. Thereafter, on August 29, 1975, the hearing examiner
for the Division made his findings of fact and conclusions of
law.
- 3 -
In addition t o t h e foregoing f a c t s , t h e hearing
examiner found t h a t d e f e n d a n t f a i l e d t o comply w i t h t h e pro-
v i s i o n s of s e c t i o n 92-615, R.C.M. 1947, when it t e r m i n a t e d
b e n e f i t s t o p l a i n t i f f a s of December 1 6 , 1974, i n t h a t it had
n o t g i v e n f i f t e e n d a y s ' w r i t t e n n o t i c e of t h e t e r m i n a t i o n
t o p l a i n t i f f and t h e D i v i s i o n . For t h a t r e a s o n , t h e examiner
concluded t h a t a p e n a l t y of 1 0 % o f t h e compensation p a y a b l e
o v e r t h e p e r i o d December 1 6 , 1974 t o A p r i l 28, 1975 s h o u l d be
imposed on d e f e n d a n t under t h e p r o v i s i o n s of s e c t i o n 93-824.1,
92
R.C.M. 1947. A f u r t h e r f i n d i n g was, t h a t a t t h e c o n c l u s i o n
of t h e h e a r i n g , it w a s a g r e e d t h a t d e f e n d a n t would c o n t i n u e t o
pay temporary t o t a l d i s a b i l i t y b e n e f i t s f o r a r e a s o n a b l e p e r i o d
of t i m e s o t h a t p l a i n t i f f c o u l d s e l e c t a d o c t o r and a p l a c e t o
have a c e r v i c a l myelogram performed. T h i s w a s f o l l o w e d by a
c o n c l u s i o n of law t h a t t h e d e f e n d a n t s h o u l d c o n t i n u e t o pay t o
t h e p l a i n t i f f bi-weekly compensation b e n e f i t s u n t i l t h e e v i d e n c e
r e v e a l e d t h a t t h e payments s h o u l d be t e r m i n a t e d o r p a i d p u r s u a n t
t o a p r o v i s i o n of t h e Workmen's Compensation Act o t h e r t h a n
s e c t i o n 92-701.1, R.C.M. 1947, which s e c t i o n c o v e r s compensation
f o r temporary t o t a l d i s a b i l i t y .
Another c o n c l u s i o n of law on t h e p a r t of t h e h e a r i n g
examiner w a s t h a t " t h e language c o n t a i n e d i n s e c t i o n 92-616,
coupled w i t h t h e f a c t s presented i n t h e i n s t a n t c a s e , does n o t
p e r m i t t h e D i v i s i o n t o o r d e r d e f e n d a n t t o pay p l a i n t i f f ' s c o s t s
and a t t o r n e y f e e s . "
The f i n d i n g s of f a c t and c o n c l u s i o n s of law of t h e
hearing examiner w e r e a d o p t e d by t h e judge of t h e Worker's
Compensation Court.
P l a i n t i f f ' s c o u n s e l c o n t e n d s t h a t p l a i n t i f f would n e v e r
have been p l a c e d back on temporary t o t a l compensation b u t f o r
h i s e f f o r t s and t h e h e a r i n g which he demanded; t h a t o n l y on
t h e compulsion o f a pending h e a r i n g and t h e f e a r t h a t p l a i n t i f f
would be awarded a t t o r n e y f e e s d i d d e f e n d a n t resume payment o f
b e n e f i t s t o p l a i n t i f f ; and t h a t t o a l l o w d e f e n d a n t t o d e f e a t
p l a i n t i f f ' s r i g h t t o a t t o r n e y f e e s by t h e v o l u n t a r y payment
under t h e s e c i r c u m s t a n c e s would be t o e m a s c u l a t e t h i s s t a t u t e
and d e s t r o y t h e p u r p o s e of it and t h e i n t e n t of t h e l e g i s l a t u r e .
Defendant r e s p o n d s t h a t i t s r e s u m p t i o n o f compensation payments
was n o t t h e r e s u l t of t h e h e a r i n g o r of any o r d e r o r a d j u d i c a t i o n
and p o i n t s o u t t h a t it made t h e d e f i c i e n c y payment o f $593.56
immediately upon r e c e i v i n g t h e c l a r i f i c a t i o n from t h e Upper
Extremity C l i n i c and b e f o r e r e c e i v i n g n o t i c e of t h e h e a r i n g ,
and t h a t a s a p a r t of i t s motion t o d i s m i s s p l a i n t i f f ' s r e q u e s t
f o r a h e a r i n g , it had a g r e e d t o c o n t i n u e compensation payments
u n t i l t h e myelogram c o u l d be made.
Whatever it was t h a t m o t i v a t e d d e f e n d a n t t o resume pay-
ment of compensation, it i s c l e a r t h a t t h e D i v i s i o n h a s no a u t h o r -
i t y t o r e q u i r e payment of a t t o r n e y f e e s by d e f e n d a n t u n l e s s t h a t
a u t h o r i t y i s found w i t h i n t h e t e r m s o f s e c t i o n 92-616, a s amended.
S i n c e t h e 1974 amendment, which became e f f e c t i v e on March 11,
1974, s e c t i o n 92-616 r e a d s :
"In t h e event t h e insurer denies t h e 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 t h e c l a i m i s l a t e r adjudged cornpensable, by
t h e d i v i s i o n o r on a p p e a l , t h e i n s u r e r s h a l l pay
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 1 f e e s a s e s t a b l i s h e d
by t h e d i v i s i o n . However, under r u l e s adopted by
t h e d i v i s i o n and i n d i s c r e t i o n o f t h e d i v i s i o n ,
a n i n s u r e r may suspend compensation payments f o r
n o t more t h a n t h i r t y ( 3 0 ) d a y s pending t h e r e c e i p t
of m e d i c a l i n f o r m a t i o n . "
The 1974 amendment r e w r o t e t h i s s e c t i o n which was o r i g i n a l l y
e n a c t e d a s S e c t i o n 2 , C h a p t e r 477, Laws o f 1973, and a s t h e n
enacted read:
"In t h e event t h e insurer denies t h e claim, o r
t e r m i n a t e s a c l a i m t h a t h a s a l r e a d y been a c c e p t e d ,
and t h e c l a i m i s l a t e r d e t e r m i n e d t o be compen-
s a b l e e i t h e r through hearing o r appeal t o t h e c o u r t s ,
t h e i n s u r e r s h a l l pay a l l c o s t s i n c u r r e d by t h e
claimant, including reasonable attorneys' f e e s
a s e s t a b l i s h e d by t h e d i v i s i o n . "
I n c o n s t r u i n g a s t a t u t e , t h e C o u r t must d e t e r m i n e
t h e p l a i n meaning o f t h e words u s e d . The l a n g u a g e i s t o b e
i n t e r p r e t e d i n a c c o r d a n c e w i t h i t s u s u a l , o r d i n a r y and a c c e p t e d
meaning, and t h e i n t e n t i o n o f t h e l e g i s l a t u r e i n e n a c t i n g i t
must be g a t h e r e d from t h e l a n g u a g e employed t h e r e i n . Section
93-401-15, R.C.M. 1947. County o f H i l l v . County o f L i b e r t y ,
62 Mont. 1 5 ; 203 P. 500; M i l l s v. S t a t e Board o f E q u a l i z a t i o n ,
97 Mont. 1 3 , 33 P.2d 563; S t a t e v . Midland N a t l l Bank, 132 Mont.
339; 317 P.2d 880.
The p l a i n i m p o r t o f s e c t i o n 92-616 i s t h a t an adjudi-
c a t i o n o f t h e c l a i m a s compensable e i t h e r by t h e D i v i s i o n o r on
appeal t o t h e c o u r t s i s a p r e r e q u i s i t e t o t h e allowance of a t t o r -
neys' f e e s t o t h e claimant. T h a t t h i s was t h e i n t e n t i o n of t h e
l e g i s l a t u r e i s emphasized by t h e change o f wording a d o p t e d by
t h e l e g i s l a t u r e when it r e w r o t e t h e s e c t i o n i n 1974.
P l a i n t i f f a r g u e s t h a t under t h e r u l e of l i b e r a l c o n s t r u c -
t i o n s e c t i o n 92-616 s h o u l d b e i n t e r p r e t e d a s r e q u i r i n g t h e pay-
ment o f a t t o r n e y s ' f e e s when t h e i n s u r e r h a s a t t e m p t e d t o circum-
v e n t t h e s t a t u t o r y p r o v i s i o n by a g r e e i n g t o pay c o m p e n s a t i o n be-
f o r e t h e r e h a s been a n a d j u d i c a t i o n o f c o m p e n s a b i l i t y , and c i t e s
a s a u t h o r i t y t h e c a s e o f C i t y o f Miami Beach v . S c h i f f m a n , 144
So.2d 799, 802, i n which t h e F l o r i d a Supreme C o u r t i n t e r p r e t e d
an a s s e r t e d l y s i m i l a r Florida s t a t u t e a s warranting an allowance
of a t t o r n e y s 1 f e e s t o t h e c l a i m a n t i n t h e a b s e n c e o f a n award
f o r c o m p e n s a t i o n , even though t h e s t a t u t e a p p e a r e d t o make s u c h
a n a l l o w a n c e d e p e n d e n t upon a n award f o r c o m p e n s a t i o n . Section
440.34(1) of t h e F l o r i d a s t a t u t e , a s set o u t i n Schiffman
''I (1) I f t h e employer o r c a r r i e r s h a l l f i l e
n o t i c e of c o n t r o v e r s y a s p r o v i d e d i n § 440.20
* * *, o r s h a l l d e c l i n e t o pay a c l a i m on o r
before the twenty-first day after they have notice
of the same, or shall otherwise resist unsuccess-
fully the payment of compensation, and the injured
person shall have employed an attorney at law in the
successful prosecution of his claim, there shall, in
addition to the award for compensation be awarded
reasonable attorneys fee, to be approved by the com-
mission * * * . ' "
In reaching its decision in the Schiffman case, the
Florida court found some doubt in the language of this section
and held that, if doubt exists, it should be resolved in favor
of the working man.
While we must and do agree that the Workmen's Compensa-
tion Act should be construed liberally and in favor of the work-
ing man, the language of the statute must first allow some room
for construction. It is obvious that section 92-616 is written
in language entirely different from that of the Florida statute
and without doubt requires that the claim be "adjudged compen-
sable by the division or on appeal" before the insurer can be
required to pay attorney fees. There has been no finding or
adjudication of compensability by the Division or by the Worker's
Compensation Court in this case.
We must rule on the law as it is and not what some may
desire it to be. In the Matter of West Gt. Falls F1. Cont. Dist.,
159 Mont. 277, 496 P.2d 1143.
The judgment of the Worker's Compensation Court is
affirmed.
Hon. Bernard W. Thomas, District
Judge, sitting in place of Mr. Justice
James T. Harrison.
a
We Concur