No. 13399
I N THE SUPREPlE COURT O THE STATE O M N A A
F F O T N
1977
J O H N CLARK,
C l a i m a n t and A p p e l l a n t ,
HENSEL PHELPS CONSTRUCTION C O . , Employer
and AETNA CASUALTY & SURETY C O . ,
I n s u r e r and R e s p o n d e n t .
Appeal from: W o r k e r s ' Comp. C o u r t
J u d g e W i l l i a m E . Hunt, p r e s i d i n g .
Counsel o f Record:
For Appellant:
Hoyt and B o t t o m l y , G r e a t F a l l s , Montana
J o h n C . Hoyt a r g u e d , G r e a t F a l l s , Montana
Thomas Lewis a p p e a r e d , G r e a t F a l l s , Montana
For Respondent :
J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, G r e a t
F a l l s , Montana
James Aiken a r g u e d , G r e a t F a l l s , Montana
Submitted: J a n u a r y 27, 1977
D e c i d e d : FEB 1 6 1a
9
Filed: :E @ g/I
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal concerns written notice to claimant and
approval of the Division of Workers' Compensation prior to the
termination of workers' compensation benefits to an injured workman.
Claimant John Clark was injured in an industrial acci-
dent on August 16, 1973. He was employed by Hensel Phelps
Construction Co. insured under Plan I1 of the Workers' Compensa-
tion Act. Aetna Casualty & Surety Co., "carrier", was the con-
struction company's insurer. Clark was paid temporary total
disability benefits from the date of the accident through October
2, 1973. The carrier stopped payment of benefits without notice
to claimant or approval of the Division of Workers' Compensation.
In June 1975, claimant requested a hearing before the Workers'
Compensation Court. That court found claimant entitled to temporary
total disability benefits from the date of the accident through
October 2, 1973 and again from October 28, 1975 until further order
of the court or until the claimant was able to return to work. No
benefits were awarded for the period of October 3, 1973 through Octo-
ber 28, 1975, and it is from this omission claimant appeals.
The record reveals the injury suffered by claimant was
an extremely painful and disabling back injury. Since the accident
claimant has experienced recurcihg- burning pains in his lower back
and left leg. The injury has created a weakness in his left leg
causing a limp which is becoming progressively more pronounced.
Immediately after the accident claimant was examined by
Dr. Schroeder in Eureka, Montana. Dr. Schroeder diagnosed claimant's
injury as a 1 I muscle spasm, left lumbar" and referred him to a
specialist. Later D r . Schroeder informed t h e c a r r i e r claimant
could r e t u r n t o work on October 3, 1973. This bpinion was used
by t h e c a r r i e r a s t h e b a s i s f o r termination of workers' compensa-
t i o n b e n e f i t s t o claimant. The record i s c l e a r , claimant was
unable t o do any kind of p h y s i c a l labor f o r t h e period i n question.
From t h e d a t e of t h e accident through October 1975, claimant was
examined by a t l e a s t e i g h t d i f f e r e n t doctors f o r treatment f o r
h i s i n j u r e d back.
O October 28, 1975 claimant was examined f o r t h e f i r s t
n
time by D r . Richard A . Nelson. O t h a t d a t e D r . Nelson determined
n
claimant was d i s a b l e d and unable t o engage i n h i s normal kind of
work a s a r e s u l t of t h e e x i s t i n g back i n j u r y .
Apparently D r . Nelson's r e p o r t was used by t h e Workers'
Compensation Court i n f i x i n g t h e d a t e f o r t h e resumption of b e n e f i t
payments t o claimant. There was no reason given by t h e c o u r t f o r
t h e f a i l u r e t o r e q u i r e t h e c a r r i e r t o comply with t h e n o t i c e and
approval provisions of t h e Workers' Compensation Act p r i o r t o t h e
termination of compensation b e n e f i t payments.
A t i s s u e i s t h e n e c e s s i t y of giving claimant w r i t t e n
n o t i c e and acquiring approval of t h e Division of Workers' Compensa-
t i o n , p r i o r t o t h e termination of b e n e f i t s .
The controlling s e c t i o n of t h e Workers' Compensation Act
i s s e c t i o n 92-615, R.C.M. 1947, amended i n 1974, but provided i n
1973:
"* ** If t h e i n s u r e r determines t o i n i t i a l l y deny a
claim, o r a f t e r a claim has been accepted, terminates
biweekly compensation b e n e f i t s , i t may do so only a f t e r
f i f t e e n (15) days w r i t t e n n o t i c e t o t h e claimant and
t h e d i v i s i o n , and a f t e r w r i t t e n approval of t h e division."
The effect of this statute upon a fact situation as in the
instant case, is a matter of first impression. However, the statute
clearly and unambiguously states that notice to claimant and the
division, and written approval of the division are prerequisites
to the termination of compensation benefits. Where the language
of a statute is plain, unambiguous, direct and certain, the statute
speaks for itself and there is nothing left for the court con-
strue. Hammill v. Young, Mont . , 540 P.2d 971, 32 St.
Rep. 935; Dunphy v. Anaconda Co., 151Mont. 76, 438 P.2d 660.
The Rhode Island Workmens' Compensation Act contains a
provision similar to section 92-615, R.C.M. 1947. Rhode Island
General Laws 1956, section 28-35-46 states in pertinent part:
"Before an employer may discontinue, suspend or reduce
compensation payments whether they are being received
under an agreement, award, order, finding or decree,
the employer shall notify the commission and the employee
of his intention to discontinue, suspend or reduce pay-
ments and the reason therefor.* * &''
An interpretation of the effect this statute fact
situation similar to the instant case is found in Carpenter v.
Globe Indemnity Co., 65 R.I. 194, 14 A.2d 235, 240. There the
carrier terminated compensation payments to an injured workman
on the basis of a doctor's report which stated claimant was able
to return to work. Claimant denied receiving notice of the termina-
tion of benefits and it was clear the Workers' Compensation Commis-
sion had received no such notice. The court found the unilateral
termination ineffective noting:
"9; * * In our opinion, a finding that such disability
has ended or diminished can be reached only by a supple-
mental agreement, also approved by the director of labor
* Jc **'I
A more recent case Raymond v. B.I.F. Industries, Inc., 112 R.I. 192,
308 A.2d 820 is in accord.
It is clear Rhode Island courts interpret their statute
as meaning the employer or his insurer may not unilaterally ter-
minate workers' compensation benefits. Further, if the employer
does attempt to unilaterally terminate the payment of benefits
such attempted termination is ineffective. The employer remains
liable for the payment of benefits until the termination is
accomplished by following the statutory notice provision.
The cause is remanded to the Workers'. Compensation Court
with instructions to direct payments to claimant for the period
October 3, 1973 to October 28, 1975. With that exception,the
decision of the Workers' Compensation Court is affirmed.
We Concur:
Chief Justice
ll