Novak v. Montgomery Ward Co. Inc.

No. 81-02
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981

CLYDE NOVAK,
Claimant and Respondent,
-vs-
MONTGOMERY WARD & CO., INC., Employer,
and
MONTGOMERY WARD & CO., INC.,
Defendant and Appellant.

Appeal from: Workers' Compensation Court, The Honorable
William E. Hunt, Judge presiding.

Counsel of Record:
For Appellant:
Warden, Christiansen & Johnson, Kalispell, Montana

For Respondent :
D. Patrick McKittrick, Great Falls, Montana

Submitted on Briefs: July 2, 1981

Decided: November 6, 1981

Filed: 6 -- 1981
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Claimant Clyde Novak filed a petition in the Workers'
Compensation Court, against defendant-appellant, Montgomery
Ward & Company, Inc., for a determination that he was
entitled to continued benefits for temporary total dis-
ability after such benefits had been terminated by such
employer. The Workers' Compensation Court found in favor of
claimant. A petition for rehearing was filed and summarily
denied. This appeal follows.
Claimant, a 55-year-old transport driver was working
for Montgomery Ward & Co., Inc., when he suffered injuries
to his right thumb and wrist. The injury occurred on
December 7, 1976, when a refrigerator that Novak was lifting
fell and smashed his hand and wrist.
Claimant reported the accident to his supervisor the
next day and was told to see a doctor. The doctor surgically
treated the right thumb but did not correct the problems
with the wrist. Later, the claimant went to the company
doctor who recommended that he consult a specialist. The
specialist began treatments for the pain in the wrist.
However, that specialist moved, and claimant had to see a
different specialist. He is currently receiving treatment
by the second specialist for the wrist problems.
Shortly thereafter a claim was filed for workers'
compensation benefits. Claimant received temporary total
benefits from December 7, 1976, until termination on May 21
1979.
In February 1977 claimant suffered a heart attack
which required open heart surgery. In November 1977,
claimant's doctor felt that he could return to work, but he
was not to lift anything heavier than seventy pounds. When
claimant reported for work, he was told by his supervisor
that he was unacceptable because of the lifting restriction.
On April 17, 1979, a letter was sent to claimant by
his employer informing him that his benefits would be
terminated as of May 2, 1979. The letter stated that the
benefits would be terminated because, ". . . you [claimant]
have not sustained any permanent disability related to the
thumb injury, and that all other medical problems are
non-industrial related."
Claimant filed a petition in the Workers'
Compensation Court on September 4, 1979, for reinstatement
of the benefits. Trial was held on July 9, 1980. The
Workers' Compensation Court found in favor of claimant, with
the court ordering the following:
.
lr2 Claimant is entitled to be paid
temporary total disability benefits from
December 7, 1976, to September 27, 1979.
"3. Claimant is entitled to an increase in
his temporary disability benefits from
December 7, 1976, to September 27, 1979, of
20 percent.
"4. That the temporary total disability plus
the 20 percent additional award shall be
immediately paid to the claimant in a lump
sum.
"5. That claimant is entitled to be paid 198
weeks of benefits at his permanent partial
rate, and this amount shall be paid to
claimant in a lump sum.
"6. That claimant is entitled to be paid
attorney fees and costs in accordance with
39-71-612, MCA."
The issues presented by appellant can be summarized
as follows: Whether the Workers' Compensation Court
exceeded its authority and jurisdiction by improperly
awarding the benefits, penalties and attorney fees.
 This Court has repeatedly held that section 39-71-
104, MCA, of the Workers' Compensation Act is to be
liberally construed in favor of the injured claimant.
Pinion v. H. C. Smith Construction Co. (1980), Mont .
, 619 P.2d 167, 37 St.Rep.
A u YY\-5
1355; -3v. Cardinal
Petroleum (1975), 166 Mont. 17, 530 P.2d 433; State ex rel.
Romero v. District Court of Eighth J.D. (1973), 162 Mont.
358, 513 P.2d 265; Ness v. Diamond Asphalt Company (1964),
143 Mont. 560, 393 P.2d 43.
In Pinion this Court reiterated the scope of review
of a decision of the Workers' Compensation Court by stating:
"In Dumont v. Wickens Bros. Const. Co.
(1979) Mont. - 598 P.2d 1099, 1106,
,
36 St.Rep. 1471, we held that the scope of
review of a decision of the Workers'
Compensation Court upon appeal has been
stated many times. The rule is well
summarized in Jensen v. Zook Bros. Const. Co.
(1978), 178 Mont. 59, 61, 62, 582 P.2d 1191,
1193, in the following language:
"'Our function in reviewing a decision of the
Workers' Compensation Court is to determine
whether there is substantial evidence to
support the findings and conclusions of that
court. We cannot substitute our judgment for
that of the trial court as to the weight of
evidence on questions of fact. Where there
is substantial evidence to support the
findings of the Workers' Compensation Court,
this Court cannot overturn the decision.'
Steffes v. 93 Leasing Co., Inc. (U.S.F.&G.)
(1978), 177 Mont. 83, 86, 87, 580 P.2d 440,
452." 619 P.2d at 168.
This Court went on to hold in Pinion:
"There also exists a presumption of correct-
ness for findings of fact and conclusions of
law of the Workers' Compensation Division, if
supported by credible evidence, and the bur-
den of proof is upon the party attacking them
to show that they were clearly erroneous.
Erhart v. Great Western Sugar Co. (1976), 169
Mont. 375, 546 P.2d 1055; Waekd3- v. Ana- ~ac'k~ll
conda Copper Mining Co. (1949), 122 Mont.
305, 203 P.2d 974." 619 P.2d at 169.
Appellant contends that the Workers' Compensation
Court exceeded its authority and jurisdiction by awarding a
penalty of 20 percent, attorney fees and a lump sum payment
of 198 weeks at a permanent partial disability rate.
The penalty of 20 percent was properly awarded by the
court pursuant to section 39-71-2907, MCA, which provides:
"When payment of compensation has been unrea-
sonably delayed or refused by an insurer,
either prior or subsequent to the issuance of
an order by the workers' compensation judge
granting a claimant compensation benefits,
the full amount of the compensation benefits
due a claimant, between the time compensation
benefits were delayed or refused and the date
of the order granting a claimant compensation
benefits, may be increased by the workers'
compensation judge by 20%. The question of
unreasonable delay or refusal shall be deter-
mined 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."
Here, appellant was found to have improperly termi-
nated benefits to the claimant. The letter sent to claimant
notifying him of the time and reason for termination was not
supported by the medical evidence available. The letter
failed to mention any wrist-related injuries, despite the
fact the doctor's report indicated there was wrist pain and
a limitation of use. The wrist pain and limitation of use
was the result of the initial injury and that injury had
persisted despite the various doctors' attempts to correct
the problem. Finally, claimant testified that he did not
receive the payments on time and that sometimes there had
been delays for up to six months.
Section 39-71-611, MCA, provided substantial author-
ity for the court to award attorney fees. This section
provides:
"In the event an insurer denies liability for
 a claim for compensation or terminates com-
pensation benefits and the claim is later
adjudged compensable by the workers ' compen-
sation judge or on appeal, the insurer shall
pay reasonable costs and attorneys' fees as
established by the workers' compensation
judge."
It was found that the termination of benefits was improper
because the insurer failed to ascertain any disability as a
result of the wrist injury, even though it had knowledge of
that injury. Wight v. Hughes Livestock, Inc. (1981),
Mont. ' - P.2d , 38 St.Rep. 1632.
Appellant next alleges that because claimant failed
to specifically plead for reclassification, the court cannot
reclassify claimant and award a lump sum payment. In
circumstances such as these, when a claimant makes a general
claim for review of his status, the Workers' Compensation
Court has the power to review a claimant's status and to
determine a proper and fair solution. Section 39-71-2909,
MCA . In this instance, the Workers' Compensation Court
properly found that the healing period had ended and even
though the claimant had not specifically asked for a change
in benefits under section 39-71-703 or 39-71-705, MCA, it
certainly was in the best interests of the claimant and in
the best interests of judicial economy to resolve the entire
matter.
Finally, appellant contends that claimant should not
have been given a 90% disability rating and that claimant
should not receive 198 weeks of benefits. Appellant bases
its contention on an attending physican's medical impairment
rating.
The rule in this state concerning impairment ratings
has been set out in several recent decisions. In Ramsey v.
Duncan & Baier (1977), 174 Mont. 438, 440-441, 571 P.2d 384,
385, this Court held:
"Many factors in addition to medical impair-
ment ratings may be properly considered by
the court in determining a claimant's dis-
ability. For this reason, impairment ratings
do not conclusively establish limits on com-
pensation awards in all cases; rather, such
medical impairment ratings by physicians are
simply expert opinion evidence constituting
but one item of evidence to be considered
along with other evidence presented. . ."
Also, in Jensen v. Zook Brothers Construction Co.
(1978), 178 Mont. 59, 64, 582 P.2d 1191, 1194, this Court,
in discussing what effect should be given to medical
impairment ratings stated:
"Here, the Workers ' Compensation Court con-
sidered the rating along with other medical
evidence and claimant's testimony about his
pain and inability to do the same kind of
work since the injury, and found claimant's
testimony more weighty and credible than the
impairment rating. The question of credi-
bility of witnesses and the weight to be
given their testimony is exclusively for the
trier of fact, the Workers' Compensation
Court, and we will not reverse its finding
based on substantial, though conflicting,
evidence. Crittendon v. City of Butte
(1977), 171 Mont. 470, 559 P.2d 816."
In the instant case the Workers' Compensation Court
determined from the claimant's testimony and the medical
reports that the claimant is permanently partially disabled
as a result of his industrial accident. This Court, in line
with the above authority, will not second-guess the Workers'
Compensation Court ruling.
Affirmed.

" Justice 1
f-
W e concur:

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Justices
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