No. 93-044
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
SHEILA STORDALEN,
Petitioner and Appellant,
v.
RICCI'S FOOD FARM,
Employer,
and
STATE COMPENSATION MUTUAL INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: Montana Workers' Compensation Court
The Honorable Timothy W. Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Edgar Burris, Attorney at Law,
Billings, Montana
For Respondent:
Michael P. Heringer, Brown, Gerbase, Cebull,
Fulton, Harman & Ross, Billings, Montana
Submitted on Briefs: April 30, 1993
Decided: October 26, 1993
Filed:
I:_ ~’
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
This is an appeal from a decision of the Workers' Compensation
Court denying appellant Sheila Stordalen a penalty pursuant to
§ 39-71-2907, MCA, and denying her attorney fees pursuant to
§ 39-71-612, MCA, after the Workers ' Compensation Court found that
respondent State Compensation Mutual Insurance Fund acted
unreasonably when it denied liability for a neurological
consultation.
We reverse and remand to the Workers' Compensation Court.
Stordalen initially raised four issues on appeal. However, we
determine the following issue to be dispositive:
Did the Workers' Compensation Court err when it failed to
impose a 20 percent penalty pursuant to 5 39-71-2907, MCA, and
attorney fees pursuant to 5 39-71-612, MCA, after it found that the
State Fund acted unreasonably in denying liability for a
neurological consultation?
A hearing was held in this matter on May 13, 1992. On
December 28, 1992, the hearing examiner issued proposed findings of
fact, conclusions of law, and order which were adopted by the
Workers' Compensation Court. Stordalen appeals the findings of the
Workers' Compensation Court.
Did the Workers' Compensation Court err when it failed to
impose a 20 percent penalty pursuant to § 39-71-2907, MCA, and
attorney fees pursuant to 5 39-71-612, MCA, after it found that the
State Fund acted unreasonably in denying liability for a
neurological consultation?
2
Our standard of review is that findings of the Workers'
Compensation Court will not be overturned if there is substantial
evidence in the record to support them. Plooster v. Pierce Packing
Co. (1993), 256 Mont. 287, 291, 846 P.2d 976, 978. However, when
reviewing the Workers' Compensation Court's conclusions of law, our
review is plenary. We determine if the Workers' Compensation
Court's determination as to the law is correct. Martelli v.
Anaconda-Deer Lodge County (Mont. 1993), 852 P.2d 579, 580, 50 St.
Rep. 479, 480.
Section 39-71-2907(l), MCA (1989), provides for an increase in
award when the State Fund acts unreasonably by refusing to pay
benefits.
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 workers' compensation judge by 20%. The
question of unreasonable delay or refusal shall be
determined by the workers' 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.
Section 39-71-612, MCA, allows the Workers' Compensation Court
to award attorney fees if it finds that the State Fund acted
unreasonably. A determination of what is unreasonable is a
question of fact. Metzger v. Chemetron Corp. (1984), 212 Mont.
351, 358, 687 P.2d 1033, 1037.
3
We have held that when an insurer acts unreasonably by denying
benefits to which a claimant is legally entitled, the court should
impose the statutory penalty. Ploostar, 846 P.2d at 978. In
Plooster, the Workers' Compensation Court found that the State Fund
acted unreasonably when it ignored the opinion of claimant's
treating physician and refused to pay for medicine which the doctor
had prescribed. Plooster, 846 P.2d at 978. However, after making
that determination, the Workers' Compensation Court denied
claimant's entitlement to a statutory penalty. Plooster, 846 P.2d
at 978. We reversed the Workers' Compensation Court and stated
that the claimant was entitled to a penalty. Plooster, 846 P.2d at
978.
In Chapman v. Research Cottrell (lPPl), 811 P.2d 1283, 1285,
248 Mont. 353, 357, this Court held that when an insurer denies a
claimant's request to change treating physicians, the decision must
be reasonable. Here, the request is not for a change of treating
physicians, but to seek consultation of a medical expert. A
claimant must obtain authorization from the State Fund for a
referral to a medical expert for consultation. 24.29.1403(3), ARM
(repealed eff. 4/l/93).
In this instance, the State Fund denied Stordalen's request
for a consultation with Dr. Nelson for the following reasons: (1)
a neurologist was not indicated on the file; (2) the claimant lives
in Livingston, while Dr. Nelson's practice is in Billings: and (3)
billing factors. The Workers' Compensation Court found that none
of the above-stated reasons justified denying Stordalen's request
4
to be examined by a physician of her choice. The court concluded
that the State Fund unreasonably denied Stordalen's request for
consultation with a physician of her choice and found the State
Fund liable for her neurological examination. The Workers'
Compensation Court determined that Stordalen was not entitled to a
penalty pursuant to § 39-71-2907, MCA. The State Fund did not
appeal this ruling.
We hold that the Workers' Compensation Court should impose the
penalty and attorney fees because it found that the State Fund
acted unreasonably in denying Stordalen's request for a consultive
examination.
We reverse and remand to the Workers' Compensation Court for
a determination of penalty and attorney fees.
We concur:
October 26, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Don Edgar Bunk
Attorney at Law
P.O. Box 2344
Billings, MT 59103
Michael P. Heringer
Brown, Gerbase, Cebull, Fulton, Harman & Ross
P.O. Box 849
Billings, MT 59103-0849
ED SMITH
CLERK OF THE! SUPREME COURT
STATE OF,MONTANA