No. 86-361
I N THE SUPREME COURT OF THE STATE OF MONTANA
1987
J E S S E CUELLAR,
C l a i m a n t and R e s p o n d e n t ,
-vs-
NORTHLAND S T E E L , E m p l o y e r ,
and
ROYAL INSURANCE COMPANY,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: T h e Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e
T i m o t h y R e a r d o n , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
Herndon, H a r p e r & Munro; D o n a l d R. Herndon, Billings,
Montana
F o r Respondent:
John S . Y o d e r , B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : Jan. 22, 1987
Decided: A p r i l 21, 1987
*t
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Royal Insurance Company appeals a Workers' Compensation
Court decision that claimant is eligible for temporary total
disability benefits and entitled to attorney fees from the
date of judgment rather than the date of injury. Two issues
are presented on appeal:
(1) Whether there is substantial evidence to support a
finding that claimant is eligible for workers' compensation
benefits.
(2) Whether claimant's attorney fees are to be
determined under the statute in effect at the date of injury
or the date of judgment.
We affirm in part and reverse and remand in part.
Claimant injured his back in May 1983 while working for
Northland Steel in Billings, Montana. Northland's insurance
carrier, Royal Insurance, (hereinafter insurance company)
paid workers' compensation temporary total disability
benefits from June 1, 1983 to June 30, 1984. Claimant's
treating orthopedic surgeon rendered a 3% impairment rating
and released claimant to return to work. Pursuant to the
surgeon's report, the insurance company terminated the
payment of benefits to claimant. Claimant made further
complaints about his physical condition from September to
December, 1984. On December 6, 1984, the orthopedic surgeon
referred claimant to a neurologist who in turn referred
claimant to Dr. William Wilson, a rheumatologist. On March
28, 1985, Dr. Wilson diagnosed the symptoms of arthralgias
and myalgias (arthritic changes) which were, in his opinion,
precipitated by claimant ' s accident at work. During the
intervening period of September 10, 1984, to June 3, 1985,
claimant received 38 weeks of unemployment insurance benefits
at a rate of $148 per week, or a total of $5,624. Claimant
certified to the state that he was able and actively seeking
work and signed a form promising to repay any unemployment
benefits upon subsequent receipt of workers' compensation
benefits. On September 6, 1985, the insurance company agreed
to pay temporary total disability benefits but refused to pay
benefits for the 38 weeks during which claimant received
unemployment benefits. The Workers' Compensation Court
reviewed the medical evidence and found that the decision to
release claimant to work was incorrect. The court cited
testimony from the doctor granting the release that claimant
had not reached maximum healing by July 1984, the date on
which the doctor gave claimant an impairment rating of 3% of
the whole person. Dr. Wilson concurred in this opinion and
ultimately concluded that claimant's physical problems were
caused by the industrial accident. It was shown that the
doctor granting claimant's release relied upon the job
analysis of a rehabilitation supervisor who had concluded
that the physical demands of the job were within claimant's
post-injury abilities. The court found claimant to be
entitled to temporary total disability benefits for the 38
weeks he received unemployment benefits, ordered claimant to
repay the unemployment benefits to the state and awarded
claimant reasonable attorney fees under S 39-71-612, MCA, as
amended in 1985.
The standard of review is whether there is substantial
evidence to support the findings and conclusions of the
Workers' Compensation Court. We cannot substitute our
judgment for that of the trial court as to the weight of the
evidence on questions of fact. Where there is substantial
evidence to support the Workers' Compensation Court, this
Court cannot overturn the decision. Coles v. Seven Eleven
Stores (Mont. 1985), 704 P.2d 1048, 42 St.Rep. 1238.
Temporary total dj-sability is defined as a condition
resulting from an injury 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. Disability
shall be supported by a preponderance of medical evidence.
See § 39-71-116 (19), MCA.
The question in this case is whether claimant reached
maximum healing by September 10, 1984 and remained in that
status through June 3, 1985. Substantial medical testimony
supports the conclusion that claimant had not reached maximum
healing by June 1984, when claimant was given his release to
work, or by September 1984, when claimant began receiving
unemployment benefits. Dr. Wilson, claimant's treating
physician during the time in which claimant received
unemployment benefits, testified that claimant's physical
problems were continuing and concluded that claimant had not
reached maximum healing. The evidence supporting the lower
court's decision is substantial and therefore justifies the
payment of temporary total benefits for the 38 weeks claimant
received unemployment benefits. We also concur that claimant
must repay the unemployment benefits he received for those
same 38 weeks.
The second issue is whether claimant's attorney fees
are to be determined under the statute in effect at the date
of injury or the date of judgment. We have held that the
size of an attorney fee award in a workers' compensation case
is determined by the statute in effect on the date of injury.
Cadwell v. Industrial Indemnity Company (Mont. 1987),
P.2d , 44 St.Rep. 370, citing Trusty v. Consolidated
Freightways (Mont. 1984), 681 P.2d 1085, 41 St.Rep. 973. In
Trusty, we held that the statutes in effect on the date of
injury determine the benefits to be received and establish
the contractual rights and debts of the parties. Moreover,
Cadwell says that a statute should not be applied
retroactively unless the legislature clearly expresses an
intention to so apply it. Cadwell, P.2d at I 44
St.Rep. at 372.
We hold that the statute in effect at the time of
claimant's injury in 1983 controls as to size of the attorney
fee award. We refuse to retroactively apply the amended
statute due to the absence of any legislative indication to
do so. We therefore reverse and remand to the lower court on
the attorney fee issue with instructions to apply the law in
effect as stated in Cadwell.
Affirmed in part, reversed and reman
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