Clark v. Hensel Phelps Construction Co.

No. 13399

I N THE SUPREPlE COURT O THE STATE O M N A A
F F O T N

1977

J O H N CLARK,

C l a i m a n t and A p p e l l a n t ,

HENSEL PHELPS CONSTRUCTION C O . , Employer
and AETNA CASUALTY & SURETY C O . ,

I n s u r e r and R e s p o n d e n t .

Appeal from: W o r k e r s ' Comp. C o u r t
J u d g e W i l l i a m E . Hunt, p r e s i d i n g .

Counsel o f Record:

For Appellant:

Hoyt and B o t t o m l y , G r e a t F a l l s , Montana
J o h n C . Hoyt a r g u e d , G r e a t F a l l s , Montana
Thomas Lewis a p p e a r e d , G r e a t F a l l s , Montana

For Respondent :

J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, G r e a t
F a l l s , Montana
James Aiken a r g u e d , G r e a t F a l l s , Montana

Submitted: J a n u a r y 27, 1977

D e c i d e d : FEB 1 6 1a
9

Filed: :E @ g/I
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

This appeal concerns written notice to claimant and

approval of the Division of Workers' Compensation prior to the

termination of workers' compensation benefits to an injured workman.

Claimant John Clark was injured in an industrial acci-

dent on August 16, 1973. He was employed by Hensel Phelps

Construction Co. insured under Plan I1 of the Workers' Compensa-

tion Act. Aetna Casualty & Surety Co., "carrier", was the con-

struction company's insurer. Clark was paid temporary total

disability benefits from the date of the accident through October

2, 1973. The carrier stopped payment of benefits without notice
to claimant or approval of the Division of Workers' Compensation.

In June 1975, claimant requested a hearing before the Workers'
Compensation Court. That court found claimant entitled to temporary

total disability benefits from the date of the accident through

October 2, 1973 and again from October 28, 1975 until further order

of the court or until the claimant was able to return to work. No
benefits were awarded for the period of October 3, 1973 through Octo-

ber 28, 1975, and it is from this omission claimant appeals.

The record reveals the injury suffered by claimant was

an extremely painful and disabling back injury. Since the accident

claimant has experienced recurcihg- burning pains in his lower back
and left leg. The injury has created a weakness in his left leg
causing a limp which is becoming progressively more pronounced.
Immediately after the accident claimant was examined by
Dr. Schroeder in Eureka, Montana. Dr. Schroeder diagnosed claimant's

injury as a 1 I muscle spasm, left lumbar" and referred him to a
specialist. Later D r . Schroeder informed t h e c a r r i e r claimant

could r e t u r n t o work on October 3, 1973. This bpinion was used

by t h e c a r r i e r a s t h e b a s i s f o r termination of workers' compensa-

t i o n b e n e f i t s t o claimant. The record i s c l e a r , claimant was

unable t o do any kind of p h y s i c a l labor f o r t h e period i n question.

From t h e d a t e of t h e accident through October 1975, claimant was

examined by a t l e a s t e i g h t d i f f e r e n t doctors f o r treatment f o r

h i s i n j u r e d back.

O October 28, 1975 claimant was examined f o r t h e f i r s t
n

time by D r . Richard A . Nelson. O t h a t d a t e D r . Nelson determined
n

claimant was d i s a b l e d and unable t o engage i n h i s normal kind of

work a s a r e s u l t of t h e e x i s t i n g back i n j u r y .

Apparently D r . Nelson's r e p o r t was used by t h e Workers'

Compensation Court i n f i x i n g t h e d a t e f o r t h e resumption of b e n e f i t

payments t o claimant. There was no reason given by t h e c o u r t f o r

t h e f a i l u r e t o r e q u i r e t h e c a r r i e r t o comply with t h e n o t i c e and

approval provisions of t h e Workers' Compensation Act p r i o r t o t h e

termination of compensation b e n e f i t payments.

A t i s s u e i s t h e n e c e s s i t y of giving claimant w r i t t e n

n o t i c e and acquiring approval of t h e Division of Workers' Compensa-

t i o n , p r i o r t o t h e termination of b e n e f i t s .

The controlling s e c t i o n of t h e Workers' Compensation Act

i s s e c t i o n 92-615, R.C.M. 1947, amended i n 1974, but provided i n

1973:

"* ** If t h e i n s u r e r determines t o i n i t i a l l y deny a
claim, o r a f t e r a claim has been accepted, terminates
biweekly compensation b e n e f i t s , i t may do so only a f t e r
f i f t e e n (15) days w r i t t e n n o t i c e t o t h e claimant and
t h e d i v i s i o n , and a f t e r w r i t t e n approval of t h e division."
 The effect of this statute upon a fact situation as in the

instant case, is a matter of first impression. However, the statute

clearly and unambiguously states that notice to claimant and the
division, and written approval of the division are prerequisites

to the termination of compensation benefits. Where the language

of a statute is plain, unambiguous, direct and certain, the statute

speaks for itself and there is nothing left for the court con-

strue. Hammill v. Young, Mont . , 540 P.2d 971, 32 St.

Rep. 935; Dunphy v. Anaconda Co., 151Mont. 76, 438 P.2d 660.

The Rhode Island Workmens' Compensation Act contains a

provision similar to section 92-615, R.C.M. 1947. Rhode Island
General Laws 1956, section 28-35-46 states in pertinent part:

"Before an employer may discontinue, suspend or reduce
compensation payments whether they are being received
under an agreement, award, order, finding or decree,
the employer shall notify the commission and the employee
of his intention to discontinue, suspend or reduce pay-
ments and the reason therefor.* * &''
An interpretation of the effect this statute fact

situation similar to the instant case is found in Carpenter v.

Globe Indemnity Co., 65 R.I. 194, 14 A.2d 235, 240. There the
carrier terminated compensation payments to an injured workman

on the basis of a doctor's report which stated claimant was able

to return to work. Claimant denied receiving notice of the termina-
tion of benefits and it was clear the Workers' Compensation Commis-

sion had received no such notice. The court found the unilateral
termination ineffective noting:

"9; * * In our opinion, a finding that such disability
has ended or diminished can be reached only by a supple-
mental agreement, also approved by the director of labor
* Jc **'I
A more recent case Raymond v. B.I.F. Industries, Inc., 112 R.I. 192,

308 A.2d 820 is in accord.
 It is clear Rhode Island courts interpret their statute
as meaning the employer or his insurer may not unilaterally ter-

minate workers' compensation benefits. Further, if the employer

does attempt to unilaterally terminate the payment of benefits

such attempted termination is ineffective. The employer remains

liable for the payment of benefits until the termination is

accomplished by following the statutory notice provision.

The cause is remanded to the Workers'. Compensation Court

with instructions to direct payments to claimant for the period
October 3, 1973 to October 28, 1975. With that exception,the

decision of the Workers' Compensation Court is affirmed.

We Concur:

Chief Justice
ll