NO. 89-457
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
MARK C. BALDWIN,
Claimant and Appellant,
ORIENT EXPRESS RESTAURANT,
Employer,
and
STATE COMPENSATION INSURANCE
FUND,
Defendant and Respondent.
APPEAL FROM: The Workers1 Compensation Court
The Honorable Timothy Reardon, Judge presiding
COUNSEL OF RECORD:
For Appellant:
James C. Bartlett, Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondent:
Oliver H. Goe, Attorney at Law, Helena, Montana
Submitted on Briefs: March 1, 1990
Decided: April 26, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Mark Baldwin appeals from the judgment of the Workers'
Compensation Court denying him retroactive reinstatement of
temporary total disability benefits; denying him an increase in
award for unreasonable delay or refusal to pay; and denying his
request for attorney's fees and costs. We affirm.
Claimant was thirty-four years old at the time of the hearing.
In 1984, while employed as a cook at the Orient Express Restaurant
in Flathead county, claimant lifted a bucket of crabs weighing
approximately forty pounds. As he twisted to kick the door open,
claimant felt his back wrench. Claimant felt pain immediately in
his back and by the following morning also experienced numbness in
his legs. The Workers1 Compensation Court found the claimant
suffered from right-sided sciatica and low back pain stemming from
a disc protrusion prominent to the right side, at the L5-S1 level.
Based on evidence given by claimant's treating physician,
neurologist Dr. Gary Cooney, and claimant's chiropractor, Dr. John
Francis, the Workers' Compensation Court concluded claimant had
reached maximum medical healing.
The State Fund gave claimant fourteen days notice of
termination of his temporary total disability benefits by letter
dated October 19, 1988. After investigation, the State Fund
terminated claimant's benefits based on his $100 per month earnings
as treasurer/bookkeeper for Kokanee Construction; his employment
for a one month period from June 15, 1985, to July 15, 1985, at
Touch America, Inc; and newspaper accounts of claimant's self-
2
employment venture growing marijuana. Claimant filed an appeal of
his conviction for criminal possession of dangerous drugs on
February 28, 1989. We have since affirmed claimant's conviction.
State v. Baldwin (Mont. 1990), P.2d , 47 St.Rep. 614.
Claimant's petition was heard before the Workers1 Compensation
Court on February 22 and 23, 1989. The court entered its findings
of fact, conclusions of law and judgment on June 30, 1989. In its
findings, based "[ulpon observation of the claimant at the time of
trial and a review of the entire record, the [clourt [found]
claimant's credibility [was] questionable." The court further
determined claimant was not entitled to reinstatement of temporary
total disability benefits, attorney's fees, costs or penalty.
Furthermore, the court held the State Fund was not entitled to
reimbursement of benefits previously paid.
Claimant raises two issues on appeal.
1. Did the lower court err by denying claimant's petition for
retroactive temporary total disability benefits?
2. Was claimant entitled to attorney's fees, costs and an
increase in award for unreasonable delay or refusal to pay?
The State Fund urges this Court on appeal to reverse the
Workers' Compensation Court's refusal to order claimant to
reimburse it for benefits paid prior to termination.
We will not reverse the ruling of the Workers1 Compensation
Court absent a determination that its judgment lacks substantial
credible supporting evidence. OIBrien v. Guaranty Fund Services
(Mont. 1990) , P.2d I , 47St.Rep. 251, 254. Weneednot
consider whether substantial credible evidence supports contrary
findings. OIBrien, 47 St.Rep. at 254.
Temporary total disability on the date of claimant's injury
was defined as:
[A] condition resulting from an injury as
defined in this chapter that results in total
loss of wages and exists until the injured
worker is as far restored as the permanent
character of the injuries will permit.
Section 39-71-116(19), MCA (1983).
Claimant bears the burden of satisfying a two prong test:
(1) injury resulting in a total loss of wages; (2) less than
maximum medical healing. Claimant failed to meet that burden in
the instant case. Both Dr. Cooney and Dr. Francis testified
claimant had reached maximum medical healing prior to termination
of his benefits on November 3, 1988. Claimant himself testified
his condition had been stable for quite some time. Claimant
offered no evidence indicating the healing process was incomplete.
His arguments otherwise are not persuasive.
Although claimant had training, expertise and experience in
a variety of areas, he applied for only one job in the
approximately four years between commencement of benefits and
termination. Claimant had owned and operated several businesses,
had training and experience in hotel/motel management and operation
and had performed bookkeeping and clerical duties in previous
employment. Vocational rehabilitation counselor Randy Kenyon
characterized claimant's motivation to return to work as
"reasonable. He emphasized claimant's commitment to self-
employment despite numerous failures in such ventures prior to
claimant's injury. Furthermore, claimant was convicted of illegal
possession of dangerous drugs for his operation of a sophisticated
marijuana greenhouse requiring significant care and upkeep. The
lower court had sufficient credible evidence upon which to base its
finding that claimant's loss of wages did not result from his
injury . The Workers1 Compensation Court correctly concluded
claimant was not entitled to retroactive or continuing temporary
total disability benefits.
Claimant on appeal asserts his right to continuing temporary
total disability benefits pending a period of retraining. Because
claimant raises this issue for the first time on appeal, we decline
to address the propriety of an award of temporary total disability
benefits pending a period of retraining. Ahmann v. American
Federal Savings & Loan Ass'n. (1988), 235 Mont. 184, 195, 766 P.2d
Section 39-71-611, MCA (1983), provides that:
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 attorneys1 fees
as established by the workers1 compensation
judge.
Furthermore, 5 39-71-2907, MCA (1983), states:
When payment of compensation has been
unreasonably 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 workers1
compensation judge by 20%. The question of
unreasonable delay or refusal shall be
determined by the workers1 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.
In this case the Workers1 Compensation Court properly held
that claimant was not entitled to temporary total disability
benefits. Therefore, the State Fund did not unreasonably delay or
refuse payment of compensation. The Workers1 Compensation Court
did not err by denying claimant recovery of attorney's fees, costs
and penalty.
The State Fund contends the Workers1 Compensation Court
erroneously refused to compel claimant to reimburse it for benefits
previously paid. The State Fund did not file a cross-appeal on
this issue, however. Although Rule 14, M.R.App.P. permits this
Court to consider all possible errors arising in the lower court,
the respondent must file a cross-appeal when seeking review of
issues not raised by appellant. Mydlarz v. Palmer/Duncan
Construction Co. (1984), 209 Mont. 325, 334, 682 P.2d 695, 700.
This construction of Rule 14, M.R.App.P. is applicable to appeals
from judgments of the Workers1 Compensation Court pursuant to 5 39-
71-2904, MCA (1983). That section provides:
[A]n appeal from a final decision of the
workers1 compensation judge shall be filed
directly with the supreme court of Montana in
the manner provided by law for appeals from
the district court in civil cases.
We therefore find the issue of reimbursement by the claimant is not
properly before this Court and do not rule on the same.
Affirmed.
Justice
We concur: H'
i