NO. 81-98
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1982
ARTHUR BUNDTROCK,
C l a i m a n t and A p p e l l a n t ,
DUFF CHEVROLET, E m p l o y e r , and
TRAVELERS INSURANCE C O . ,
D e f e n d a n t and R e s p o n d e n t .
Appeal from: Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e
W i l l i a m - E. H u n t , J u d g e p r e s i d i n g ,
C o u n s e l of R e c o r d :
For A p p e l l a n t :
R. V. Rottomly, G r e a t Falls, M o n t a n a
For R e s p o n d e n t :
C h a r l e s R. Johnson, G r e a t F a l l s , M o n t a n a
S u b m i t t e d on B r i e f s : A u g u s t 11, 1 9 8 1
Decided: July 8, 1 9 8 2
Filed:
JUL 8 - 1982
P
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Claimant Arthur Bundtrock appeals from the judgment of
the Workers' Compensation Court denying his petition to be
declared permanently totally disabled and awarded a lump sun
payment of benefits.
Claimant raises two issues on appeal. First, he contends
that the trial court erred in refusing to find him permanently
totally disabled. In support of this contention, the claimant
maintains that the evidence before the trial court clearly
revealed that he would be permanently disabled within the
meaning of the Workers' Compensation Act. Second, claimant
contends that the trial court abused its discretion in denying
his petition for a lump sum payment to allow him to finance
a small business venture. We affirm the trial court on both
issues.
The claimant was injured on November 12, 1975 while
employed as a mechanic for Duff Chevrolet in Columbia Falls,
Nontana. He injured his back while lifting an engine part
from the floor. The accident was reported to the employer and
a claim for compensation was filed. The employer's insurer
accepted the claim and paid total disability becefits from the
date of the injury through October 26, 1979, and medical
benefits through November 1, 1979. Claimant also receives
monthly disability payments and auxiliary benefits for his
two children from the Social Security ~dministration.
Extensive medical treatment, including at least four
operations, has not relieved claimant's back problems. Although
his injury has made it impossible for him to return to
work as a mechanic, he has attempted to work as a teacher
of automobile mechanics at Flathead Community College and
the Montana Auto College. The claimant has obtained a 4-C
teaching degree which qualifies him to teach auto mechanics
in state vocational educational programs. The claimant's
debilitating pain forced him to stop teaching when he was
unable to satisfactorily teach the lab pcrtion of the classes
because of the bending and lifting that was required.
On June 11, 1979, claimant filed a petition in Workers'
Compensation Court for a lump sum payment and declaration
that he was permanently totally disabled. The petition
requested the lump sum payment in order to "[elliminate past
due indebtedness on installment payments for his home and
other debts." The petition stated no other grounds for the
lump sum request. Lump sum payments are governed by section
39-71-741, MCA.
At trial, the claimant testified that, at their present
level of income, he and his wife were able to meet all
payments and living expenses. In support of his petition
for a lump sum payment, claimant presented a rough projection
of his proposed business venture. The insurer was not
informed of the proposed business venture until one day
before trial. This venture would involve the consignment
sale of used motor vehicles. According to his own projections,
the claimant would need to gross $20,000 per month in sales
in order to break even. He also admitted that, if the
proposed venture failed, most of the investment would be
lost.
The trial court found that it was in claimant's best
interests to continue to receive compensation benefits on a
periodic basis, and therefore denied his petition for a
lump sum settlement. The trial court further found, based
upon uneontroverted medical evidence, that enrollment in the
Portland Pain Clinic may enable the claimant to reenter the
labor market in some type of sedentary employment. The
trial court ordered the insurer to continue to pay temporary
total disability payments.
Temporary Total Disability
The Workers' Compensation Court found claimant to be
temporarily totally disabled rather than permanently totally
disabled. Claimant argues that because all of the various
and extensive medical treatments administered over the past
six years have failed to relieve his debilitating pain, the
trial court erred in refusing to find him permanently and
totally disabled. Claimant further argues that the refusal
of the trial court to find him permanently and totally
disabled was error because it adversely affected the amount
of any lump sum settlement. The trial court's finding is,
however, supported by substantial evidence.
In order to qualify as permanently totally disabled,
the preponderance of medical evidence must show that the
claimant has no reasonable prospect of reentering the normal
labor market. Section 39-71-116 (13), MCA. This involves a
consideration of the medical evidence as well as the claimant's
own particular employment status. The only medical testimony
presented was that of Dr. Richard Nelson, the claimant's
physician. Dr. Nelson testified that, after undergoing
treatment at the Portland Pain Clinic, the claimant could
probably reenter the labor market in a sedentary job. The
claimant was qualified to teach vocational skills, and is
physically capable of teaching auto mechanics in a classroom
setting. The claimant produced no evidence to prove that he
is permanently unable to return to the "normal labor market."
Temporary total disability is defined in section 39-71-
116(19), MCA, as total loss of wages "[ulntil the injured
worker is as far restored as the permanent character of the
injuries will permit." The testimony of Dr. Nelson established
that further treatment may allow claimant to return to the
normal labor market in a sedentary capacity. The claimant
is qualified for some types of sedentary work. The medical
evidence, though minimal, was sufficient to support a finding
of temporary total disability.
Nor are we persuaded by claimant's argument that the
trial court's refusal to find him permanently disabled
adversely affected the amount of any lump sum settlement.
Whether a claimant is entitled to a lump sum payment of
benefits, and whether he is temporarily or permanently
disabled are two separate issues. The trial court's finding
that claimant is temporarily totally disabled is supported
by substantial evidence.
Denial of Lump Sum Settlement
Claimant asked for a lump sum award based on an expect-
ation that he would be determined to be permanently totally
disabled. Instead, the trial court found him to be temporarily
totally disabled. Assuming, however, that claimant was
found to be permanently totally disabled, the trial court
was clearly justified in denying his petition for a lump sum
payment. Claimant failed to justify a clear need or a
workable plan which might have moved the trial court's
discretion.
Lump sum settlements are the exception, not the rule,
and will be granted in exceptional circumstances where such
payments serve the best interests of the claimant.
Willoughby v. Arthur G. McKee & Co. (1980), - Mont .- I
609 P.2d 700, 37 St.Rep. 620; Kent v. Sievert (1971), 158
Mont. 79, 489 P.2d 104. The trial court considered the
evidence and found that the best interests of the claimant
would best be served by periodic payments. Only a clear
abuse of discretion is cause for this Court to reverse such
a finding. The claimant testified that he was not behind on
bills, and that he and his wife could meet their monthly
bills on their current income. He failed to establish any
pressing need for a lump sum settlement.
The claimant further argues that the trial court erred
in denying his petition for a lump sum payment so that he
could start his own business venture. The business venture
proposed by claimant was the consignment sale of used motor
vehicles which would require purchasing a lot and building a
structure from which to conduct business. Claimant also
proposed that the business would be nominally owned by his
wife (who would work as a salesperson) so that his social
security benefits would not be threatened. The claimant
estimated that to break even, he needed to gross approximately
$20,000 per month in sales. He admitted that, if khe
proposed business folded, most of his investment would be
lost. Because of his back problems, claimant would be
unable to perform any of the mechanical work required.
Claimant therefore proposed hiring other mechanics for this
purpose. The only evidence presented regarding the feasibility
of the proposed business venture was the testimony and
projection of the claimant.
The claimant bears the burden of justifying departure
from periodic payments and any plan presented by the claimant
must be shown to have some reasonable basis for success.
Legowik v. Montgomery Ward (1971), 157 Mcnt. 436, 486 P.2d
867. Each claim for a lump sum settlement must be considered
on its own merits. The trial court was in a better position
than we are to familiarize itself with the circumstances of
the case and to consider the needs of the claimant. Krause
v. Sears (1982), - Mont . -, 641 P.2d 458, 39 St.Rep.
394.
The Workers' Compensation Court determination that a
lump sum payment would not be in claimant's best interests
is supported by substantial evidence.
The decision of the Worlters' Compensation Court is
a£firmed.
We Concur: