No. 13498
I N T E SUPREME COURT O T E STATE O F MONTANA
H F H
1977
WILLARD BRURUD,
C l a i m a n t and Respondent,
J U D G E MOVING & STORAGE CO., I N C . ,
Employer and TRANSPORTATION INSURANCE
COMPANY,
I n s u r e r and A p p e l l a n t .
Appeal from: Worker's Comp C o u r t ,
Honorable W i l l i a m E . Hunt, Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
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
H. Dale Schwanke a r g u e d , G r e a t F a l l s , Montana
F o r Respondent :
Hoyt and Bottomly, G r e a t F a l l s , Montana
John C . Hoyt a r g u e d , G r e a t F a l l s , Montana
- -
Submitted: March 1 5 , 1977
Filed : >-
TbPLnL.
c & d
Clerk
Honorable Peter G. Meloy, District Judge, sitting in place of
Mr. Chief Justice Paul G. Hatfield, delivered the Opinion of
the Court.
Respondent was injured in an industrial accident and
filed a claim for compensation with the Montana Workers'
Compensation Division. Thereafter, a dispute arose between
respondent and appellants concerning the nature and extent of
respondent's resulting disability. A hearing was held before
a division hearing examiner on July 25, 1974. On November 26,
1974, an order awarding compensation was entered by the admin-
istrator of the division, which order awarded respondent perma-
nent total disability benefits and a lump sum advance of $7,500.
The order was duly appealed and the award affirmed by the Workers'
Compensation Court, by order dated May 25, 1976. This appeal is
taken therefrom.
The Workers' Compensation Court's review of the Workers'
Compensation Division is limited by section 82-4216, R.C.M. 1947.
That section admonishes the review court that it:
" * * * shall not substitute its judgment for
that of the agency as to the weight of the
evidence on questions of fact. * * * The Court
may reverse or modify the decision if substan-
tial rights of the appellant have been prejudiced
because the administrative findings, inferences,
conclusions or decisions are:
"(a) in violation of constitutional or statutory
provisions;
"(b) in excess of the statutory authority of the
agency;
"(c) made upon unlawful procedure;
"(d) affected by other error of law;
"(e) clearly erroneous in view of the reliable,
probative and substantial evidence on the whole
record;
"(f) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exer-
cise of discretion; or
"(g) because findings of fact, upon issues essen-
tial to the decision, were not made although
requested."
Montana has adopted the "clearly erroneous" test and
while no Montana cases have defined the term it appears that
the citation of petitioner in the case of United States v.
United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L ed
746, 766, is a proper definition. Therein it stated:
"A finding is 'clearly erroneous' when although
there is evidence to support it, the reviewing
court on the entire evidence is left with the
definite and firm conviction that a mistake has
been committed."
The appellants contend the Workers1 Compensation Court erred
in affirming the Workers' Compensation Division in the follow-
ing particulars:
(1) The evidence before the Division was insufficient
to support a finding of permanent total disability.
(2) The Division could not consider the medical reports
in the Workers1 Compensation file.
(3) The Workers1 Compensation Court erred in not allow-
ing appellant insurance company to present additional evidence.
(4) The Division had no authority to order an advance
to the workman.
We will discuss these issues within the limitations of
section 82-4216.
(1) It is true that the only evidence brought out at
the hearing as to the nature and extent of respondent's disabil-
ity was the testimony of the respondent himself. This testimony
brought out that respondent, who was age 58 at the time of the
injury and reached age 62 on January 13, 1977, had an entire
adult work history of heavy labor. He has a high school educa-
tion and has since worked about 25 years as a meat cutter and
about 15 years as a laborer in the moving and storage business.
There was no medical testimony presented at the hearing.
According to the memorandum accompanying the Division's findings
of fact and conclusions of law, both sides seemed satisfied
to rely on the medical reports, one submitted by Dr. Popnoe,
the treating physician, the other by Dr. Forbeck, who examined
the claimant, apparently at the request of defendant insurance
carrier.
Dr. Popnoe wrote on April 10, 1974 in a report addressed
to the agent of appellant:
"I feel that he is too old for fusion. He is
not trained in any type of work other than
heavy work. He conceivably might do very light
work not requiring any heavy lifting, pushing or
pulling, possibly as a watchman or something
similar. It is my feeling that his permanent
partial disability considering all things should
be approximately 60-70%."
Dr. Forbeck wrote on June 5, 1974 in a report addressed
to the appellant with a copy to an agent of appellant:
" * * * It is hoped that with the passage of
time and perhaps a continuation of conservative
measures of therapy, his present difficulty will
gradually improve, but probably his prognosis in
this regard is rather poor. Under present cir-
cumstances, I feel that a disability rating of sixty
to seventy-five percent would be fair."
Appellants could have presented any medical evidence of
their own at the hearing and did not. Based upon what the
hearing examiner had at his disposal, the contents of the Divi-
sion file, the record of the hearing, the medical reports, the
age, education and experience of respondent, he had sufficient
evidence to support his finding of fact No. 11 that respondent
was permanently totally disabled as defined in section 92-441,
R.C.M. 1947.
Appellants next contend that before the Division could
conclude that respondent was entitled to permanent total dis-
ability benefits, a finding must be made that he made a reason-
able effort to find regular employment but that no reasonable
prospect existed. Appellants therefore contend that the Divi-
sions findings of fact do not support its conclusions of law
and its order awarding compensation.
Nowhere in section 92-441,which defines permanent
total disability, does it require such a finding. The statute
does require that he have no reasonable prospect of finding
regular employment of any kind in the normal labor market; but
it does not set out that he must have made a reasonable effort
to secure such employment. In some cases, this Court can fore-
see the futility of such an effort. In this case, the Division
in its finding of fact No. 11, clearly saw such a situation.
In view of the medical reports, the record of the hearings,
and the age, education and work experience of respondent, the
Division found no reasonable prospect of respondent finding
regular employment in the labor market and because of that
found him to be permanently totally disabled. This finding
clearly supports the Division's conclusion of law and order
awarding compensation.
(2) The medical reports were unsworn and were not
offered in evidence. Appellants contend that for the Division
to have considered these reports denied appellants their right
to cross-examine the preparers and to rebut the evidence con-
tained therein.
The contents of the reports in question, one by Dr.
Popnoe, the treating physician, and one by Dr. Forbeck, who
apparently examined claimant at the request of the insurance
carrier, were known by both parties and were a part of the
Division's file in this case. At the hearing the reports and
their contents were discussed in part but apparently were not
entered into evidence. No other medical evidence was produced
at the hearing. The hearing examiner had been given to under-
stand that "both sides seemed satisfied to rely on the two
medical reports". This was stated in the memorandum accompany-
ing the order awarding compensation.
It was not a reversible abuse of discretion for the
Division to consider the contents of reports which were a part
of its file in the case, the contents of both which were known
to the parties at the time of the hearing, and which reports
were discussed at the hearing and not challenged, objected to
or rebutted in any manner at the hearing.
(3) Appellants contend that the Division erred by deny-
ing them leave to present additional evidence pertinent to the
award of permanent total disability benefits. The additional
evidence concerned respondent's disability as well as evidence
concerning the retroactive Social Security disability benefits
received by respondent. The statute applicable to such an
attempt to present additional evidence is section 82-4216 (5),
R.C.M. 1947. That section requires a showing sufficient to
satisfy the Court that the additional evidence is material and
that there were good reasons for failure to present it in the
proceeding before the agency. The court of review was not
satisfied with either the materiality or the additional evidence
of the reason for failure to present it earlier. This Court
will not substitute its discretion for that of the court of re-
view.
(4) Appellant contends that the Workers' Compensation
Court erred in affirming the order awarding compensation to the
extent it awarded respondent a $7,500 lump sum advance. They
contend, first, that the Division lacked jurisdiction to order
payment of any advance and, second, that the evidence did not
support the amount of the advance in any event. Section 92-
715, R.C.M. 1947, which authorizes the conversion of biweekly
payments to a lump sum settlement in certain instances, provides
in part:
"Such conversion can only be made upon the
written application of the injured worker * * *."
Since respondent did not apply in writing, appellants contend
the Division lacked jurisdiction to grant the lump sum advance.
It should be understood however, that the award was an "advance"
as distinguished from a "lump sum settlement" wherein there is
a calculation of the present worth of the deferred payments.
Section 92-715 is not applicable to a "lump sum advance."
Under the circumstances here the Division did not abuse
its discretion in ordering the advance. Compare Sullivan v.
Anselmo Mining Corp., 82 Mont. 543, 268 P. 495.
Appellants further contend that even if the Division
did have jurisdiction to grant the lump sum advance, that the
evidence did not support an advance in the amount of $7,500
which the Division granted. The burden, they claim, is clearly
on respondent to justify the conversion and the amount thereof.
This burden, according to appellants, was not met. At the hear-
ing, respondent testified to debts of "around $6,000.00" but
he was not certain to whom they were owed or in what amounts.
At a later date, a list of amounts owed and to whom owed was
provided. This list was unsworn and totalled $7,211. Appellants
claim this unsworn list certainly does not justify the lump sum
award of $7,500.
The Division, in finding of fact No. 16, found that the
contents of the file and record reveal that by a preponderance
of the evidence, a lump sum advance to be applied against his
final award would be in the best interest of respondent and
4
the public. See ~aukait&s v. Sisters of Charity, 135 Mont. 469,
342 P.2d 752. In finding of fact No. 12 the Division found
respondent testified at the hearing that his accumulated obli-
gations had become an impossible burden upon him and that he
could not meet his financial obligations, pasf: a.nd current,
with the amount he received in Workers' Compensation benefits.
In finding of fact No. 17, it found that the outstanding in-
debtedness of respondent was in the amount of $7,214, which
amount does not include fees owed to his attorney. The Division
therefore concluded in conclusion of law No. 3 to award claimant
a lump sum advance in the amount of $7,500.
This Court does find the evidence sufficient to justify
the award of $7,500.
The findings of the Division are not clearly erroneous
under section 82-4216, R.C.M. 1947.
The order of the Workers' mpensati Court is affirmed.
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on. Peter G. Me oy, strict Judge,
sitting in plac r. Chief Jus-
tice Paul G. Ha
/J
.'
We concrir:
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