PJch. 13497
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
HARVEY SCFUMACHER,
Claimant and Appellant,
EMPIRE STEEL MAPJUFACTURING COMPANY,
Employer,
and
EMPLOYERS MUTUAL LIABILITY INSURAPJCE
COMPANY OF WISCONSIPJ ,
Defendant and Respondent.
Appeal from: Workers' compensation Court
Eonorable William E. Eunt, Judge presiding
Counsel of Record:
For Appellant:
Kelly and Foley, Billings, Montana
William T. Kelly argued, Billings, Montana
For Respondent :
Crowley, Haughey, Hanson, Gallagher and Toole,
Billings, Montana
Bruce Toole argued, Billings, Montana
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Submitted: September 13, 1977
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of the
Court.
Appellant appeals a ruling of the workers' compensation
court terminating his disability benefits under the Workers'
Compensation Act.
On July 26, 1972, appellant Harvey Schumacher, while
working for respondent Empire Steel Manufacturing Co., injured
himself when he attempted to lift a heavy steel sheet above his
head. As a result of injuries to the left side of his neck,
left shoulder and arm, the workers'compensation court, at a
September, 1973 hearing, found that the proper amount of compen-
sation was $78 per week for appellant's temporary total disability
and $55 per week for his permanent partial disability. In October,
1974, respondent insurance carrier petitioned the workers' compen-
sation court for a further determination of appellant's injuries.
After a hearing on May 4, 1976, the workers' compensation court
judge found appellant was no longer disabled and ordered that his
compensation be terminated as of June 4, 1976. The judge, in
his findings of fact and conclusions of law, did not address the
issue of whether appellant should be reimbursed by respondents for
psychiatric treatment which appellant had obtained without the
approval of the workers' compensation board or respondents.
The judge based his decision to terminate appellant's
disability benefits on the fact there was little evidence appellant
suffered from any continuing physical injury. The workers' com-
pensation judge considered the testimony of a neurologist and a
clinical psychologist, each of whom had examined and treated
appellant. The physicians testified that much of appellant's
suffering was due to his psychosomatic personality and that this
psychological problem was worsening. Both doctors testified
appellant was suffering from hypochondriacal neurosis, and that,
at least in appellant's mind, the pain he was experiencing from
his work-related injury was very real and continuing. The
psychologist stated that appellant needed psychotherapy and
that schooling would be in appellant's best interests, both to
retrain him and to assist in the control of his hypochondriacal
neurosis. The two doctors testified that the quickest route to
psychological rehabilitation would be a final settlement so that
appellant could put the entire matter behind him.
The following issues are presented on appeal:
1. Did the evidence support the workers' compensation
court's decision to terminate appellant's benefits?
2. Must respondents pay the bill of/$sychiatrist who
treated appellant where such treatment was not approved by the
insurance carrier, employer, or the workers' compensation board?
3. Are respondents required to pay appellant's attorney
fees?
Appellant's claim is compensable and the workers'compen-
sation court's decision to terminate benefits is reversed. Whether
appellant still suffers physical injury is debatable. It is
undisputed, however, that appellant has continuing psychological
problems from his injury. Montana law has long held that neurosis
resulting from a work related injury is compensable under the Act.
Legowik v. Montgomery Ward, 157 Mont. 436, 486 P.2d 867 (1971);
O'Neil v. Industrial Accident Board, 107 Mont. 176, 81 P.2d 688
(1938). There was testimony that appellant had psychological
problems prior to his injury, but it is well established that an
employer takes his employee subject to the employee's physical
and, logically, emotional condition at the time of his employment.
Birnie v. U. S. Gypsum Co., 134 Mont. 39, 328 P.2d 133 (1958);
Peitz v. Industrial ~ccidentBoard, 127 Mont. 316, 264 P.2d 709
(1953). An employee who suffers from a pre-existing condition
is entitled to compensation if the condition was aggravated by an
industrial injury. Rumsey v. Cardinal Petroleum, 166 Mont. 17,
530 P.2d 433 (1975); Weakley v. Cook, 126 Mont. 332, 249 P.2d
926 (1952).
Respondents' argument that the court furthered appel-
lant's best interests by terminating his benefits, thereby put-
ting the matter behind him, is an imaginative one. Imaginative,
but not too convincing. A final lump sum settlement in lieu of
weekly payments, as authorized by section 92-715, R.C.M. 1947,
would serve the same purpose of "putting the matter behind" appel-
lant, while allowing him to obtain necessary educational retrain-
ing and medical care, and is hereby ordered in this case. See
Legowik v. Montgomery Ward, supra.
Respondents' argument in their brief that section 92-706,
R.C.M. 1947, requires board approval of a claimant's medical care
is equally meritless. The section reads:
" * * * the employer or insurer * * * shall
furnish reasonable services by a physician
or surgeon, reasonable hospital services and
medicines when needed, and such other treat-
ment approved by the board * * *."
The statute, by its express language, requires an insurer
or employer to pay for reasonable physician services and reason-
able and necessary hospital and medical services, without any
mention of board approval. It is only "other treatment", not
specifically mentioned, which must have prior board approval.
The issue here, is not, as respondents contend, whether
there was board approval of the psychiatric care. The issue is
whether such physician services were "reasonable" given the
nature of appellant's sickness and the treatment he had already
received. This was an issue the workers' compensation court
apparently did not consider.
It is undisputed that appellant suffered from psycholog-
ical disorders. There is nothing in the record to show that
treatment of appellant's psychiatric problems by a psychiatrist
was anything but "reasonable services by a physician" within the
meaning of section 92-706. Respondent insurance carrier therefore
is required under the statute to pay for the cost of the psy-
chiatric treatment.
The final issue on appeal is whether appellant is, by
statute, entitled to attorney fees if his claim, after being
denied, is later found to be cornpensable on appeal. Section 92-
616, R.C.M. 1947, allows a claimant to recover reasonable costs
and attorney fees after a successful appeal. McMillen v. Arthur
G. McKee & Co., Mont. ___, 533 P.2d 1095 (1975). This section
is triggered only when " * * * the insurer denies the claim for
compensation." In this case, the workers' compensation court
judge, and not the insurer, denied appellant's claim. The in-
surer paid every benefit it was required to pay to appellant under
the Act up to and until the workers' compensation court judge,
after the hearing, issued his finding that appellant was no longer
disabled and no longer entitled to workers' compensation benefits.
Section 92-616 is meant to penalize an insurance carrier
which cavalierly terminates a claimant's benefits, without the
prior approval of the workers1 compensation court. In this case,
however, respondent insurance carrier was entitled to rely on the
opinion of the workers' compensation court judge and need not bear
the cost of appellant's appeal.
This case is affirmed in part and reversed in part, and
remanded to the workers' compensation court for a determination
of the amount of the lump sum payment which is properly payable
to appellant.
Chief
We concur:
Justices