No. 85-479
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
JOHN D. LASAR,
Claimant and Appellant,
-vs-
E.H. OFTEDAL & SONS, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Herndon, Harper & Munro; James G. Edmiston, Billings,
Montana.
For Respondent:
Crowley Law Firm; Terry G. Spear, Billings, Montana
Submitted on Briefs: March 21, 1986
Decided: July 15, 1986
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
John D. Lasar, the claimant, appeals a judgment of the
Workers' Compensation Court denying him an award of costs and
attorneys1 fees. He does not appeal the denial of a lump sum
award or the denial of an imposition of the 20% penalty made
as part of the same judgment. We affirm.
The claimant was injured in 1979 while employed by E.H.
Oftedal & Sons, a Montana employer insured by the State
Compensation Insurance Fund (defendant). The defendant paid
temporary total disability wage loss benefits from the time
of the accident.
On November 30, 1984 the claimant petitioned for a
hearing requesting that he be found totally and permanently
disabled, that his benefits be converted to a lump sum, that
a penalty be imposed on defendant, and that he receive
attorneys1 fees and costs. The parties had a pre-trial
conference with the hearings examiner on January 3, 1985.
The defendant deposed the claimant the next day and conceded
permanent total disability around January 17, 1985. The case
proceeded to a hearing on February 5, 1985, on the remaining
issues. The Workers' Compensation Court found the claimant
was not entitled to a lump sum, a penalty, or attorneys' fees
and costs in a judgment dated July 23, 1985.
The claimant raises one issue on appeal:
Whether the Workers' Compensation Court erred in
denying the claimant an award of attorneys1 fees and costs.
The claimant sought attorneys' fees and costs at the
lower court level pursuant to S 39-71-611, MCA, and argues
entitlement under 5 39-71-612, MCA, on appeal. The judgment
of the Workers' Compensation Court does not specify which
statute was the basis for the decision. We find the claimant
is not entitled under either statute.
Section 39-71-611, MCA, (1983) states:
In the event an insurer denies liability
for a claim for compensation or
terminates compensation benefits and the
claim is later adjudged compensable by
the workers1 compensation judge or on
appeal, the insurer shall pay reasonable
costs and attorneys' fees as established
by the workers' compensation judge.
This is not a case where the insurer denied liability for a
claim or terminated benefits. Thus, the claimant is not
entitled to attorneys' fees and costs under this statute.
See, Krause v. Sears Roebuck & Co. (1982), 197 Mont. 102, 641
Section 39-71-612, MCA, (1983) states:
(1) If an employer or insurer pays or
tenders payment of compensation under
chapter 71 or 72 of this title, but
controversy relates to the amount of
compensation due and the settlement or
award is greater than the amount paid or
tendered by the employer or insurer, a
reasonable attorney's fee as established
by the division or the workers'
compensation judge if the case has gone
to a hearing, based solely upon the
difference between the amount settled for
or awarded and the amount tendered or
paid, may be awarded in addition to the
amount of compensation.
(2) When an attorney's fee is awarded
against an employer or insurer under this
section there may be further assessed
against the employer or insurer
reasonable costs, fees, and mileage for
necessary witnesses attending a hearing
on the claimant's behalf. Both the
necessity for the witness and the
reasonableness of the fees must be
approved by the division or the workers'
compensation judge.
Under this statute, there are two conditions to an award of
attorneys1 fees and costs where an insurer has paid or
tendered payment of compensation. First, the amount of
compensation must be in controversy and second, the amount
awarded must exceed that paid or tendered. Here, the
defendant conceded permanent total disability nearly three
weeks before trial, before discovery or any new written
documentation other than the claimant's deposition had been
completed. Since the insurer agreed on the amount of
compensation due, no controversy existed at trial and the
amount awarded was the same as that agreed upon as due.
Contrary to claimant's contention, this case is not "on
all fours" with Krause, 197 Mont. 102, 641 P.2d 458. In
Krause, the defendant took the position that the claimant was
not permanently totally disabled because he refused to submit
to surgery recommended by an examining physician. During its
opening statement at the hearing, the defendant conceded
permanent total disability for the first time. This Court
held that, under S 39-71-612, MCA, the claimant was entitled
to attorneys' fees and costs relating to his proof of
permanent total disability. Here, three weeks before the
hearing, after receiving only the claimant's deposition and
no other discovery materials, the defendant agreed the
claimant was permanently totally disabled. The claimant was
not required to submit any proof on this issue at the
hearing. Because of these differing circumstances, Krause is
not controlling authority for the case at bar. We hold that
the Workers' Compensation Court correctly denied the
claimant's request for attorneys' fees and costs.
The decision of the Court is
affirmed.
t
We Concur: