No. 13359
I N THE SUPREME C U T O T E STATE O M N A A
OR F H F OTN
1976
JOHN KENNETH SKRUKRUD,
Claimant and Appellant,
GALLATIN L U D Y CO.,
ANR INC., Employer,
and
EMPLOYERS COMMERCIAL UNION INSURANCE
COMPANY, INSURER,
Defendants and Respondents.
Appeal from: D i s t r i c t Eighteen, Workers'Compensation Court
William E. Hunt, Judge p r e s i d i n g
Counsel of Record:
For Appellant :
Morrow, Nash and Sedivy, Bozeman, Montana
James H. Morrow a r g u e d , Bozernan, Montana
For Respondents :
Keefer and Roybal, B i l l i n g s , Montana
N e i l S. Keefer argued, B i l l i n g s , Montana
Submitted: October 19, 1976
M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court.
This i s an appeal by an i n j u r e d employee from t h e f i n d i n g s
of f a c t and conclusions of law of t h e workers' compensation c o u r t
i n favor of t h e employer and i t s i n s u r e r . I n substance, t h e workers'
c o u r t held t h a t t h e i n j u r e d employee's proper category of d i s -
a b i l i t y was "temporary t o t a l d i s a b i l i t y " ; t h a t h i s compensation
was f i x e d i n amount and duration by such c l a s s i f i c a t i o n u n t i l
further order; t h a t a statutory o f f s e t f o r social security dis-
a b i l i t y applied t o h i s workers' compensation b e n e f i t s ; t h a t he
was not e n t i t l e d t o a lump sum settlement from t h e i n s u r e r ; and,
t h a t h i s workers' compensation b e n e f i t s were t o cease when he
a t t a i n s t h e age of s i x t y - f i v e .
The r e l e v a n t f a c t s a r e shown by t h e record: John Kenneth
Skrukrud, claimant, was i n j u r e d i n an automobile a c c i d e n t i n
October 1972, while i n t h e course and scope of h i s employment
with G a l l a t i n Laundry Company, Inc., employer. Employer was
e n r o l l e d under Plan I1 of t h e Workmen's Compensation Act a s i t
e x i s t e d i n 1972; Employers Commercial Union Insurance Company
was i t s insurance c a r r i e r . Claimant was s i n g l e with no dependents
a t t h e time of t h e accident.
A s a r e s u l t of h i s i n j u r y , claimant received c h i r o p r a c t i c
treatments and medical a t t e n t i o n . He continued t o work u n t i l
March 8 , 1973, when he was r e f e r r e d t o an o r t h o p e d i s t . Thereafter
he was h o s p i t a l i z e d and received surgery f o r a h e r n i a t e d c e r v i c a l
d i s c and f u s i o n of c e r v i c a l v e r t e b r a e , and was twice again s u r g i -
c a l l y t r e a t e d f o r v e r t e b r a e fusion. Claimant has n o t worked s i n c e
March 8, 1973, and continues t o r e c e i v e frequent medical a t t e n t i o n .
Claimant has been receiving federal social security
disability benefits from April 1973, to the present.
In May 1975, claimant made settlement with the United
Statesgmennnent in compensation for the injuries he sustained
in October 1972. The insurer has been partially satisfied
as to its subrogation rights under section 92-204, R.C.M. 1947,
as it existed in 1972. There is no dispute as to insurer's
continuing right to subrogation to claimant's settlement.
Insurer has been paying bLweekly compensation to claimant
effective since March 1973, based upon the classification of
claimant's injury as "temporary total disability". Initially
these payments were $50 per week, then corrected to $55 per week.
However, when insurer established that claimant was receiving
social security disability benefits, it reduced its weekly workers'
compensation benefits by offsetting fifty percent of his weekly
social security benefit against the payments made under workers'
compensation. This was done pursuant to section 92-701, R.C.M.
1947 as it existed in 1972 (Sec. 1, Ch. 174, Laws 1971), which
section pertained solely to compensation for injury producing
temporary total disability. The effect was to reduce claimant's
workers' compensation benefits by almost half. As a result of
the higher payments made to claimant prior to commencement of
the offset reduction, insurer asserted it had overpaid claimant.
In July 1975, the insurer requested a hearing before the
workers' compensation court to resolve factual and legal disputes
which had arisen between claimant and insurer. Hearing was had
in September 1975 before Workers' Compensation Judge William E.
Hunt in Bozeman, Montana. On March 2, 1976, the workers' court
issued its findings of fact and conclusions of law which held as
hereinbefore set forth. As no judgment or order was forthcoming,
claimant appealed from the findings and conclusions to this Court
pursuant to section 92-852(2), R.C.M. 1947.
Claimant presents five issues for review:
1. Did the workers' court err in finding that claimant's
injury resulted in temporary total disability rather than permanent
total disability?
2. Did the workers' court err in its determination of
claimant's pre-injury earnings?
3. Did the workers' court err in refusing to order the
balance of workers' compensation payments to be made in a lump
sum settlement?
4. Did the workers' court err in holding that claimant's
workers' compensation benefits shall cease absolutely when he
attains the age of sixty-five years?
5. Do the various social security offset reduction pro-
visions of Montana's workers' compensation laws violate the state
and federal constitutions?
A determination of issues one through four requires this
Court to review the record, findings and conclusions of the
workers' court. This is the first appeal from the workers' compen-
sation court to be reviewed by the Supreme Court. The law as it
applied to judicial review of Workmen's Compensation Division
decisions prior to July 1, 1975 is summarized in Miller v. City
of Billings, - .
Mont , 555 P.2d 747, 749, 33 St.Rep. 984,
986:
"The findings and decision of the Workmen's Compen-
sation Division are presumed to be correct and if
supported by credible evidence must be affirmed. Section
92-822, R.C.M. 1947 (since repealed; Birnie v. United
S t a t e s Gypsum Co., 134 Mont. 39, 44, 328
P.2d 133; Hurlbut v. V o l l s t e d t Kerr Co., Mont.,
538 P.2d 344,347, 32 S t . Rep. 752, 755. The
d i s t r i c t c o u r t must a f f i r m t h e Division o r d e r
i f t h e evidence does n o t c l e a r l y preponderate
a g a i n s t i t s findings. Becktold v. Ind. Acc. Bd.,
137 Mont. 119, 125, 350 P.2d 383; Stordahl v.
Rush Implement Co., 148 Mont. 13, 417 P.2d 95;
3 Larson's Workmen's Compensation Law, Q 80.20.
Section 92-834, R.C.M. 1947 ( i n e f f e c t i n 1966,
b u t s i n c e r e p e a l e d ) , provided t h e d i s t r i c t c o u r t ,
may upon good cause shown admit a d d i t i o n a l evidence.
Section 92-835, R,C.M, 1947 ( i n e f f e c t i n 1966, b u t
s i n c e r e p e a l e d ) , provided t h a t i f t h i s a d d i t i o n a l
evidence i s s u b s t a n t i a l , t h e d i s t r i c t c o u r t may be
j u s t i f i e d i n reversing t h e Division even though
t h e evidence adduced before t h e Division c l e a r l y
preponderates i n favor of i t s order. Murphy v.
I n d u s t r i a l Accident Board, 93 Mont, 1, 16 P.2d 705;
Hurlbut v. V o l l s t e d t Kerr Co., supra.
"Where t h e appeal t o t h e d i s t r i c t c o u r t i s
heard only on t h e D i v i s i o n ' s c e r t i f i e d record o r when
t h e d i s t r i c t c o u r t permits a d d i t i o n a l evidence t o
be introduced t h a t i s n o t important o r adds nothing
new t o t h e c a s e , t h e c o u r t i s bound by t h e same
r u l e of appeal which a p p l i e s where t h e appeal i s heard
only on t h e c e r t i f i e d record and t h e Division i s en-
t i t l e d t o a presumption t h e c a s e was decided c o r r e c t l y .
Kelly v. West Coast Construction Co., 106 Mont. 463,
78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402,
523 P.2d 1379; Erhart v. Great Western Sugar Co.,
Mont., 546 P.2d 1055, 33 St.Rep. 302."
See a l s o : Kimball v. Continental O i l Co., Mont .
-
9 550
Under t h e law a s i t now e x i s t s , t h i s Court d i r e c t l y re-
views t h e d e c i s i o n of t h e workers' c o u r t , s e c t i o n 92-852(2),
R.C.M. 1947. The workers' c o u r t proceedings a r e a d m i n i s t r a t i v e
i n n a t u r e and q u a s i - j u d i c i a l , s e c t i o n s 92-852(1) and 82A-1016,
R.C.M. 1947. The a p p r o p r i a t e scope of t h i s Court's review should
be no d i f f e r e n t than i t was under former law a s expressed i n
above c i t e d c a s e s ; t h a t i s , worker's c o u r t d e c i s i o n s w i l l n o t be
overturned i f t h e r e i s s u b s t a n t i a l evidence t o support i t s f i n d i n g s
and conclusions.
With t h e foregoing i n mind, we d i s c u s s t h e i s s u e s .
With r e s p e c t t o claimant' s i n j u r i e s , t h e workers' c o u r t
made t h i s finding:
"* * * That t h e medical evidence viewed i n i t s t o t a l i t y
and p a r t i c u l a r l y t h e r e p o r t of J u l y 7, 1975, from D r .
Robert C. Wood, neurosurgeon, with t h e B i l l i n g s C l i n i c
of B i l l i n g s , Montana, c l a i m a n t ' s Exhibit 5 , wherein D r .
Wood s t a t e s :
" ' I t i s m impression t h i s man has t h e following
y
diagnosis: 1. Postoperative a n t e r i o r c e r v i c a l d i s c
removals and fusions x 3 with chronic r e s i d u a l neck and
r i g h t arm pain. 2. Secondary severe c e r v i c a l s p i n e
l i m i t a t i o n of motion. 3 . Functional weakness of both
arms.
"'This man i s permanently d i s a b l e d by h i s d i s e a s e
and h i s operations. These problems have rendered t h i s
man 100 percent permanently and t o t a l l y d i s a b l e d .
S o l i d i f y i n g t h i s p a t i e n t ' s d i s a b i l i t y i s h i s emotional
r e a c t i o n t o t h e problem a s he i s obviously convinced i n
h i s own mind t h a t he has been t o t a l l y d i s a b l e d and he
w i l l ever be so.
" ' I do not t h i n k t h e r e i s a ghost of a chance of
ever r e t u r n i n g t h i s man t o g a i n f u l employment. H e i s
c e r t a i n l y n o t an o p e r a t i v e candidate due t o h i s f u n c t i o n a l
augmentation of h i s present problems; and, i f anything,
he has had more than h i s s h a r e of surgery a l r e a d y . '
"Place c l a i m a n t ' s d i s a b i l i t y under t h e category of 'tem-
porary t o t a l d i s a b i l i t y , ' f o r a period of t i m e - n o t t o
exceed 300 weeks from d a t e of i n j u r y , a s provided by
Section 92-701, R.C.M. 1947, a s i t provided on October 14,
1972, * * *. That t h e emotional r e a c t i o n complication
t o c l a i m a n t ' s d i s a b i l i t y has n o t been determined t o be
permanent i n n a t u r e and not s u b j e c t t o p s y c h i a t r i c t r e a t -
ment. That u n t i l t h i s showing has been made t o t h e s a t i s -
f a c t i o n of t h i s Court by e i t h e r t h e claimant o r t h e insurance
c a r r i e r t h e proper c l a s s i f i c a t i o n f o r c l a i m a n t ' s d i s a b i l i t y
should be 'temporary t o t a l d i s a b i l i t y ' ** *.I'
The record, including D r . Wood's r e p o r t , does n o t s u s t a i n
t h i s finding. A l l t h a t i s necessary i s t o read t h e quoted p o r t i o n
of D r . Wood's r e p o r t . D r . Wood was r e t a i n e d by i n s u r e r t o examine
claimant, and h i s "Attending Physician's" r e p o r t unequivocally
c l a s s i f i e d claimant a s "100%", "permanently" disabled. claimant' s
orthopedic surgeon s t a t e d s e v e r a l t i m e s t h a t claimant should be
considered unemployable for any kind of work. There is no
evidence to contradict these matters of record. The fact that
claimant's "emotional reaction" to his condition is "solidifying"
to his problem does not warrant the workers' court to find that
the problem is temporary; there is simply no evidence which
supports any conclusion other than that claimant was found by
insurer's own choice of doctor to be permanently totally disabled
as a result of his injuries.
Because the workers' court erred in placing claimant in
the category of "temporary total disability", its conclusion of
law number 2, that claimant's disability was governed by section
92-701, R.C.M. 1947, is error. At the time of claimant's injury,
section 92-702, pertaining to permanent total disability, was in
effect and is controlling in this case. Upon remand, the workers'
court shall apply the provisions of section 92-702, as it existed
in 1972, to determine claimant's proper compensation rate.
Claimant's second issue concerns the workers' court deter-
mination of claimant's pre-injury earnings. Inasmuch as we have
held that former section 92-702 applies to his rate of compensation,
this question becomes moot. Under either claimant's or insurer's
calculations, claimant is entitled to the same statutory maximum
of compensation for the 500 week period provided in section 92-
702, R.C.M. 1947, in 1972.
Claimant's third issue concerns his request in writing
that he be awarded a lump sum settlement for the balance of his
compensation, as authorized in former section 92-715, R.C.M. 1947.
The workers ' court found claimant had demonstrated no financial
need for such settlement. In view of the fact that section 92-715
vested the Industrial Accident Board (now the Workers' Compensation
Division) with discretion in matters of settlement, and there
is substantial evidence to support the court's finding, we see
no reason to reverse the workers' court finding; if good cause
later appears for such a settlement, the Workersr Compensation
Division has continuing authority to so order.
Claimant's fourth issue concerns the worker's court
decision that when claimant attains age sixty-five in January
1977, and his social security disability payments automatically
convert by operation of federal law into equal social security
retirement payments, claimant is deemed by federal law to have
completely withdrawn from the regular labor market and is there-
fore no longer entitled to any workers' compensation benefits under
state law. That is, removal from the labor market terminates
the state's obligation to compensate one who is no longer a
member of the federally recognized labor force; or, as insurer
states in its brief, "compensation ceases when the fact of
inability to earn in the open labor market ceases." It is
difficult to determine from the workers' court findings or from
the insurer's brief and argument whether this position is related
to the statutory offset for social security benefits under
section 92-701, R.C.M. 1947, or whether it is urged as a general
proposition relating to all workers' compensation beneficiaries.
In either case, however, it is clear the workers' court erred.
No authority is cited, and we have found none, for the flat
proposition that workers' compensation benefits terminate upon
retirement.
Insurer asserts this practice is suggested by the statutory
framework of Montana's Workers' Compensation Act because workers'
compensation is compensation for loss of earning capacity and
retired persons do not have earning capacity. The superficial
logic of this argument is overcome by the specific statute appli-
cable in the instant case. Section 92-702, R.C.M. 1947, as
effective in 1972, provided the rates of compensation for permanent
total disability and stated in part:
"* * * Such compensation shall be paid during the
period of disability, but for the period not ex-
ceeding five hundred (500) weeks from the date of
injury. * * *I1
No provision is made for early cessation of benefits, if the
injured employee reaches retirement age before the running of
the 500 week period. Obviously, the legislature would have
included such an important provision if it had so intended the
statute to operate. In construing a statute, courts cannot insert
what has been omitted. Section 93-401-15, R.C.M. 1947; Dunphy
v. Anaconda Co., 151Mont. 76, 438 P.2d 660 and cases cited
therein. Therefore, claimant's workers' compensation benefits
shall not terminate when he attains the age of sixty-five.
Finally, claimant asks this Court to rule on the constitu-
tionality of the social security offset reduction provisions of
sections 92-701 (now repealed), 92-701.1 and 92-702.1, R.C.M.
1947. We have determined that section 92-701 is inapplicable to
this case; and, the latter two sections were not enacted until
after claimant's injury and were not relied upon by the workers'
court. Therefore, the constitutional question is not in issue
and this Court will not decide such questions when not necessary
to its decision. Taylor v. Taylor, 167 Mont. 164, 537 P.2d 483,
32 St.Rep. 575; Montana State University v. Ransier, 167 Mont. 149,
536 P.2d 187, 32 St.Rep. 569, and cases cited therein.
This case i s remanded t o t h e workers' c o u r t w i t h d i r e c -
t i o n s t o e n t e r a f i n d i n g t o t h e e f f e c t t h a t claimant i s permanently
t o t a l l y d i s a b l e d , and t h a t h i s compensation s h a l l be paid over a
period of 500 weeks from t h e d a t e of i n j u r y . There s h a l l be no
reduction of workers' compensation b e n e f i t s f o r s o c i a l s e c u r i t y
payments received by claimant s i n c e A p r i l 1973, and b e n e f i t s
s h a l l n o t cease when claimant a t t a i n s age s i x t y - f i v e . P a s t pay-
ments t o claimant s h a l l be adjusted i n conformity with t h e law.
Reversed and remanded with d i r e c t i o n s .
Justice
.
Concur:
Qi?t?t/!LL-
Hon. Jack L. Green, D i s t r i c t
Judge, s i t t i n g f o r j u s t i c e
Wesley C a s t l e s .