No. 8 9 - 3 3 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
LAINE P. CARROLL,
Claimant and Appellant,
-v-
WELLS FARGO ARMORED SERVICE CORPORATION,
Employer,
and
CNA INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eric R . Thueson, Thueson L a w Office, Helena, Montana
For Respondent:
Larry W. Jones, Garlington, Lohn & Robinson,
Missoula, Montana
Submitted on Briefs: October 20, 1 9 8 9
Decided: December 1, 1989
a
Justice John Conway Harrison delivered the Opinion of the
Court.
Claimant Laine Carroll appeals a decision of the
Workers' Compensation Court wherein the Workers' Compensation
Court awarded claimant 175 weeks of partial disability
benefits. As part of its decision the Workers' Compensation
Court denied several of claimant's requests including the
following: (1) denial of a lump sum advance; (2) denial of
payment of certain medical expenses; (3) denial of request to
include overtime hours as part of wage calculation; and
(4) denial- of attorney's fees and costs. We affirm in part,
reverse in part, and remand to the Workers' Compensation
Court.
Claimant presents four issues for review:
1. Did the Workers' Compensation Court err because it
failed to discuss the factors that must be evaluated when
determining a claimant's disability factor under
5 s 39-71-705, -708, MCA (1985)?
2. Did the Workers' Compensation Court err by not
including claimant's overtime hours in determining his
pre-injury wages?
3. Did the Hearings Examiner err by not requiring the
defendant to pay certain medical expenses?
4. Did the Workers' Compensation Court err in holding
that 5 39-71-612, MCA (1985), controlled the determination of
attorney's fees rather than 5 39-71-611, MCA (1985)?
On November 15, 1985, claimant injured his back during
the course and scope of his employment as an armored car
driver for Wells Fargo. Defendant initially accepted
liability for claimant's injury and paid temporary total
disability benefits and medical benefits. In a letter dated
June 22, 1987, defendant offered to settle claimant's case
for $30,317.58, representing 170 weeks of permanent partial
disability benefits at the rate of $142.67 per week plus
$6,063.48 in attorney's fees. Defendant stated in the letter
that the offer was good for fifteen days. The Pretrial Order
discloses that as of the hearing date, December 14, 1987,
defendant had taken the position that claimant was not
entitled to any indemnity benefits.
At trial the Hearings Examiner heard the claimant's
testimony and testimony from two vocational rehabilitation
experts. Also part of the record are various depositions
including depositions of medical doctors who had treated or
examined the claimant.
At the time of trial the claimant was 27 years old. He
had a high school education and his work history included
work as a gas station attendant, dishwasher, construction
helper, and armored truck driver. At the date of his injury,
claimant earned $5.35 per hour. It was undisputed that the
claimant could not return to his former employment and that
he is now limited to light or sedentary jobs that have
starting wages of $3.50 to $4.50 per hour. Other facts will
be discussed as necessary.
I.
Did the Workers' Compensation Court err because it
failed to discuss the factors that must be evaluated when
determining a claimant's disability factor under
§§ 39-71-705, -708, MCA (1985)?
This Court's task in reviewing a Workers' Compensation
Court decision is to determine whether substantial evidence
supports the Workers' Compensation Court's findings of fact
and conclusions of law. Coles T T . Seven Eleven Stores (1985),
217 Mont. 343, 347, 704 P.2d 1048, 1050.
It is well established that SS 39-71-705, -708, MCA
(1985), permanent partial disability benefits indemnify the
claimant for possible loss of future earning capacity.
McDanold v. B.N. Transport, Inc. (1384), 208 Mont. 470, 476,
679 P.2d 1188, 1191. Also well established are the factors
the court must consider in determining a claimant's
disability under SS 39-71-705, -708, MCA (1985). The court
must consider the claimant's age, education, work experience,
pain and disability, actual wage loss, and loss of future
earning capacity. Holton v. F.H. Stoltze Land and Lumber Co.
(1981), 195 Mont. 263, 266, 637 P.2d 10, 12. The Conclr~sions
of Law recognized these factors.
After stating the appropriate standard for a
SS 39-71-705, -708, MCA (1985), disability determination, the
court set forth its rationale for its conclusion that
claimant was 35% disabled. Appellant argues that the court's
legal conclusion that the claimant is 35% disabled is flawed
because the rationale does not reflect how, or even if, the
court considered the above mentioned factors in reachinq its
decision. We agree.
As mentioned, case law interpreting §S 39-71-705, -708,
MCA, requires that the court consider a claimant's age,
education, work experience, pain and disability, actual waqe
loss and possible loss of future earning capacity. Rased on
the court's discussion, the only apparent consideration made
by the court in determining claimant's disability was
pre-injury versus post-injury earnings. Although the court
listed the appropriate factors, it discussed only actual wage
loss. The court's opinion contains no discussion of how any
of the other factors weighed in its decision that claimant is
35% disabled, which nearly approximates claimant's actual
wage loss. Thus, on its face, the court's decision reads
like a permanent partial disability determination under
5 39-71-703, MCA (1985), which does look only to actual
diminution in wages as the basis upon which benefits are
determined. Because the court only discussed the claimant's
actual wage loss and failed to discuss any of the other
criteria, we hold that the court's decision is not supported
by substantial evidence.
Respondent asks us to adopt its version of what the
Hearings Examiner must have thought in reaching his decision.
Similarly, claimant asks us to adopt his version of what the
Hearings Examiner should have thought and increase the
compensation award. However, this Court cannot second guess
how the Workers' Compensation Court must have arrived at its
decision or dictate what decision it should have made.
Both respondent and claimant supplied this Court with
Workers' Compensation Court decisions. A review of the cases
decided under 5 s 39-71-705, -708, MCA (1985), reveal in all
some discussion of the necessary factors. Such a discussion
is required so that the reviewing court can ascertain that
all of the factors were indeed considered and discern the
court's rationale. In the instant case the opinion discussed
only the actual wage loss factor and none of the other
mandatory considerations. We vacate the Workers'
Compensation Court's award under 55 39-71-705, -708, MCA
(1985), and remand to the Workers' Compensation Court for a
redetermination of benefits consistent with the requirements
of § S 39-71-7'05, -708, MCA (1985).
11.
Did the Workers' Compensation Court err by not
including claimant's overtime hours in determining his
pre-injury wages?
Generally, overtime earnings are not included in
determining a claimant's "usual hours of employment." Coles
v. Seven Eleven Stores (1985), 217 Mont. 343, 348-49, 704
P.2d 1048, 1052. "However, if the work record shows that the
employer hired the claimant expecting overtime work and the
claimant actually worked overtime on a consistent, regular
basis . . . then that overtime becomes part of the usual
hours of employment." Coles, 704 P.2d at 1052. In Coles,
the claimant worked overtime in each of the weeks she worked
at the Seven Eleven store.
Claimant contends that the Workers' Compensation Court
erred by not including overtime hours in his pre-injury wages
because he worked overtime in 24 of the 48 weeks preceding
his injury. Thus, claimant contends that his case falls
within the Coles decision on overtime and that the Workers'
Compensation Court's decision is not supported by substantial.
evidence. We disagree.
As the Workers' Compensation Court found, the claimant
did not receive overtime wages for 21 weekly pay periods
prior to his injury. In other words, claimant had not worked
overtime in the five months preceding his injury. The record
contains no other evidence of any overtime claimant worked.
On its face claimant's overtime hours do not approach the
standard of a "consistent, regular basis" set in Coles. We
hold that the Workers' Compensation Court's decision not to
include overtime hours in determining pre-injury wages is
supported by substantial evidence.
111.
Did the Hearings Examiner err by not requirins the
defendant to pay certain medical expenses?
Claimant received medical treatment from Dr. Baggenstos
for which defendant refused to pay. Defendant refused to pay
Dr. Baggenstos' costs because neither did claimant's treating
physician refer claimant to Dr. Baggenstos nor did defendant
authorize Dr. Baggenstos' visit.
Montana law specifically requires either a referral
from a claimant's treating physician or an authorization by
the insurer before an insurer will he liable for medical
treatment expenses. Garland v. The Anaconda Co. (19781, 177
Mont. 240, 581 P.2d 431. Claimant's visit to Dr. Baggenstos
was clearly unauthorized under Montana law, even though
claimant felt he had good reason for his actions. We affirm
the Workers' Compensation Court's decision disallowing
payment of Dr. Baggenstos' medical costs.
IV.
Did the Workers' Compensation Court err in holding that
§ 39-71-612, MCA (1985), controlled the determination of
attorney's fees rather than S 39-71-611, MCA (1985)?
Workers' Compensation statutes provide two methods of
determining attorney ' s fees. Section 39-71-611, MCA (1985),
applies when an insurer denies liability while $ 39-71-612,
MCA (1985), applies when an insurer accepts liability but
disputes the amount of compensation due the claimant.
Hartman v . Staley Continental (Mont. 1989), 768 P.2d 1380, 46
St.Rep. 248. If the court awards more compensation than the
defendant has offered, then attorney's fees are based on the
difference. If the court awards less compensation then no
attorney's fees are due.
The Workers' Compensation Court awarded attorney's fees
to claimant pursuant to § 39-71-612, MCA (1985), and ordered
claimant to submit his attorney's fees request. Defendant
disputed attorney's fees and moved for summary judgment which
the Workers' Compensation Court granted. The Workers'
Compensation Court held that claimant was not entitled to
attorney's fees because the court-awarded indemnity benefits
($24,967.25 + $235.41 for attorney's fees) were less than the
defendant's pretrial settlement offer ($30,317.58).
Claimant contends that defendant denied liability and
that the Workers' Compensation Court erred in not applying
S 39-71-611, MCA (1985). In both its pretrial order and its
proposed findings of fact and conclusions of law, defendant
asserted that the claimant was not entitled to any permanent
partial disability benefits. Claimant argues that under our
Hartman holding these assertions constitute a denial of
liability regardless of any pretrial settlement offer. We
agree.
The Hartman case is directly analogous to the instant
case. In Hartman, the defendant made a pretrial settlement
offer but asserted in its pretrial order and proposed
findings and conclusions that the claimant was not entitled
to any permanent partial disability benefits. Similar to
defendant in this case, the Hartman defendant argued that
$ 39-71-612, MCA (1985), applied because it was not denying
liability but merely disputing the amount of compensation.
We found that the record, in which defendant steadfastly
claimed that claimant was entitled to nothing, did not
support defendant's assertion that it was only disputing the
amount of compensation. Hartman, 768 P.2d at 1385.
The same reasoning applies to the instant case. If
defendant were merely disputing the amount of compensation,
then defendant would acknowledge that claimant was entitled
to permanent partial disability benefits. See, Lamb v.
Missoula Imports, Inc. (Mont. 1988), 748 P.2d 965, 45 St.Rep.
127. To the contrary however, here defendant denied that
claimant was entitled to compensation. In other words,
defendant denied any liability for permanent partial
benefits. We hold that claimant's attorney's fees are to be
determined under § 39-71-611, MCA (1985).
We remand to the Workers' Compensation Court for a
determination of indemnity benefits and attorney's fees in
accordance with this opinion.
We concur:
I '
Justices