No. 84-517
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
KENNETH BYRD,
Claimant and Appellant,
-vs-
RAMSEY ENGINEERING, Employer,
and
AMERICAN HOME ASSURANCE CO.,
Defendant and Respondent.
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keefer, Roybal, Hanson, Stacey & Jarussi; Neil S.
Keefer argued, Billings, Montana
For Respondent :
Herndon, Harper, & Munro; James Edmiston argued,
Billings, Montana
Submitted: MaY 2 3 1 1935
Decided: July 2 , 1 9 8 5
J ~ L . 1985
2
Filed:
-- P
Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Kenneth Byrd, appellant, filed a petition in Workers'
Compensation Court to resolve a dispute over his disability
benefits. The matter was heard by a court-appointed Hearing
Examiner, James P. Harrington, who conducted the hearing,
considered the evidence, and submitted findings of fact and
conclusions of law for consideration by the court. The
Workers' Compensation Court considered the record and find-
ings of fact and conclusions of law of the hearing examiner
and entered an order and judgment on November 7, 1984. Mr.
Byrd appeals this judgment.
Appellant was injured on August 18, 1976, when he fell
from the cab of his truck and twisted his knee. Since then,
appellant has had five operations on his knee and may require
a total knee replacement in the future.
At the time of his injury, appellant was employed in
construction as a truck driver and made $8.10 per hour under
a Teamsters' Labor Agreement. He has tried to return to his
old occupation, but has been unable to because of pain.
Since returning to the labor market, appellant's income has
been at the minimum wage level. In addition he has been paid
permanent partial benefits of $81.00 per week since August 2,
1983.
The Workers' Compensation Court in its judgment of
November 7, 1984, awarded appellant 200 weeks of permanent
partial benefits under the specified injury statute,
S 39-71-705, MCA. The court ordered $3,150.00 of the bene-
fits to be paid in a lump sum to pay some of appellant's
pressing debts.
Appellant appeals the Workers' Compensation Court's
judgment on the following issues:
1. Whether the Workers' Compensation Court erred in
awarding 200 weeks of permanent partial disability under
S; 39-71-705, MCA, instead of 500 weeks under $ 39-71-703,
MCA, on the basis that appellant's back condition and ulcera-
tive proctitis are causally related to his knee injury.
2. Whether appellant's permanent partial award should
have all been paid in a lump sum to meet a balloon payment
due on his home.
Our standard of review of decisions of the Workers'
Compensation Court is set forth in Steffes v. 93 Leasing
Company (1978), 1 7 Mont. 83, 86, 580 P.2d 450, 452, in which
.7
it was held:
"Our function in reviewing a decision of the Work-
ers' Compensation Court is to determine whether
there is substantial evidence to support the find-
ings and conclusions of that Court. We cannot
substitute our judgment for that of the trial court
as to the weight of the evidence on questions of
fact. Where there is substantial evidence to
support the findings of the Work~rs' Compensation
Court, this Court cannot overturn the decision.
- -v. St. Regis Paper Co., (1977) Mont., 571 P.2d
Bond -
372, 34 St.Rep. 1237. ~n:s
bi v. Anaconda Aluminum
Co. (1978), Mont., 575 P.2d 6 7 35 St.Rep. 213."
-
The Workers' Compensation Court found that appellant
failed to prove that his ulcerative proctitis was caused or
aggravated by his knee injury. There is substantial evidence
in the record to support this finding. Dr. Walton performed
three of the operations on appellant's knee. Dr. Wal-ton
testified that he found no relationship between the knee
injury and appellant's colitis condition. (Dr. Walton's
deposition March 5, 1984, p. 21.)
Dr. Korb, a specialist in intestinal- diseases, testified
that the cause of the appellant's ulcerative proctitis condi-
tion was not known and he could not say "to a reasonable
degree of medical certainty" that stress from appellant's
knee injury caused the intestinal problems. (Dr. Korb's
deposition p. 30.)
In fact the great weight of the evidence supports the
Workers ' Compensation Court finding that the evidence fails
to establish a causal relationship between the appellant's
ulcerative proctitis and the industrial injury. We must
affirm.
There is no medical evidence that appellant has a back
problem. The Workers' Compensation Court did not discuss it
and we find no evidence to support appellant's argument that
he is additionally disabled by this back problem. We affirm
the Workers' Compensation Court finding that appellant is
entitled to 200 weeks permanent partial disability pursuant
to 5 39-71-705, MCA.
Lump Sum
The Workers' Compensation Court ordered that appellant
was to receive $3,150.00 of his disability payments in a lump
sum and the rest was to be paid at the rate of $81.00 per
week. Appellant asked that the entire award be paid in a
lump sum to meet a $25,000.00 balloon payment on a home loan
he obtained in anticipation of his disability award. The
Court found that appellant was not entitled to a lump sum
advance to pay a house loan intentionally incurred in antici-
pation of a lump sum award.
The law in !!lantana on lump sum awards is stated in
Willoughby v. Genera1 Accident, Fire and Life (1980), 187
Mont. 253, 256, 609 P.2d 700, 701, as follows:
"The general rule concerning the award or denial of
lump sum settlements under the Workers' Compensa-
tion Act is well settled in this state. Lump sum
settlements are only granted in exceptional circum-
stances. Where the best interests of the claimant
are generally served by paying compensation in
regular periodic installments, the conversion of
benefits to a lump sum settlement has been recog-
nized as the exception rather than the rule. Utick
v. U t i c k ( S t a t e Comp. I n s . Fund) ( 1 9 7 9 ) , Mont., 593
P.2d 739, 7 4 1 , 36 S t . R e p . 799, 801; Kuehn v . N a t .
F a r m e r s Union Co. ( 1 9 7 4 ) , 164 Mont. 303, 3 0 7 , 521
P.2d 921, 923; Legowik v . Montgomery Ward ( 1 9 7 1 ) ,
1 5 7 Mont. 436, 440, 486 P.2d 8 6 7 , 869; K e n t v.
S i e v e r t ( 1 9 7 1 ) , 158 Mont. 7 9 , 8 1 , 489 P.2d 1 0 4 ,
105. "
The c o u r t g o e s on t o s a y :
"Lump sum s e t t l e m e n t s a r e o n l y g r a n t e d where t h e r e
is 'outstanding indebtedness,' 'pressing need,' o r
where ' t h e b e s t i n t e r e s t s o f t h e claimant, h i s
f a m i l y and t h e g e n e r a 1 p u b l i c w i l l be served.'"
I n t h i s c a s e , w e a r e a s k e d t o review the W o r k e r s ' Com-
pensation Court award of a partial rather than total lump
sum. Where w e h a v e c o n s i d e r e d t h i s i s s u e i n o t h e r c a s e s , w e
have stated that the decision t o award o r deny a lump sum
s e t t l e m e n t w i l l n o t b e i n t e r f e r e d w i t h on a p p e a l u n l e s s t h e r e
h a s been a n a b u s e o f d i s c r e t i o n . Willoughby, s u p r a . , Utick,
supra. The f i n d i n g s o f t h e l o w e r t r i b u n a l o r b o a r d w i l l b e
presumed correct and affirmed if supported by substantial
evidence. The decision w i l l be reversed, however, if the
evidence c l e a r l y preponderates a g a i n s t it. Legowik, supra.
W e have s t u d i e d t h e evidence i n t h i s c a s e . Appellant
t e s t i f i e d t h a t he purchased a house f o r h i s family i n a n t i c i -
p a t i o n o f h i s Workers' Compensation a w a r d . A p p e l l a n t needed
$25,000.00 by February 1, 1984 t o make a b a l l o o n payment.
A p p e l l a n t assumed h e would r e c e i v e a t l e a s t $ 2 5 , 0 0 0 . 0 0 from
Workers' Compensation, b u t when h e d i d n o t he had t o b o r r o w
t h e money from W e s t e r n S t a t e Rank w i t h t h e u n d e r s t a n d i n g t h a t
a p p e l l a n t would e a r m a r k t h e p r o c e e d s o f h i s W o r k e r s ' Compen-
s a t i o n c a s e t o repay t h e loan. The W e s t e r n S t a t e Rank l o a n
i s s h o r t term, at a 1 5 % i n t e r e s t r a t e and m u s t b e p a i d as
soon a s p o s s i b l e .
Clearly, appellant has made some mistakes with his
finances. W e do n o t e n c o u r a g e t h e i n c u r r i n g of a d e b t i n
a n t i c i p a t i o n o f a n award t h a t may n o t come. But t h e d e b t h a s
been i n c u r r e d and t h e b o t t o m l i n e i s t h a t a p p e l l a n t w i l l l o s e
his house if he c a n n o t make a substantial payment on his
1.oan. I t i s a n a b u s e o f d i s c r e t i o n t o f o r c e a man t o l o s e
his home simply because w e d o n o t want to encourage the
practice of incurring a debt in anticipation of lump sum
awards. The e v i d e n c e i n d i c a t e s t h a t t h e r e i s a n " o u t s t a n d i n g
indebtedness", that appellant has demonstrated a "pressing
n e e d " f o r t h e lump sum, and t h e b e s t i n t e r e s t s o f t h e a p p e l -
l a n t and h i s f a m i l y wil.1 b e s e r v e d by a w a r d i n g a lump sum.
Appellant s h o u l d r e c e i v e t h e r e m a i n d e r o f h i s 2 0 0 weeks o f
b e n e f i t s i n a lump sum.
Although the lump sum award w i l l not be as large as
appellant anticipated, hopefully it w i l l be sufficient to
a l l o w him t o r e f i n a n c e h i s home.
W e remand t o t h e Workers' Compensation C o u r t w i t h d i r e c -
tions to enter judgment in accordance with this opinion.
,;
A