NO. 13772 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

BETTY HUTCHISON, 

Claimant and Respondent, 

-vsGENERAL HOST CORPORATION, 

Employer and Appellant, 

and 

LIBERTY MUTUAL INSURANCE CO., 

Defendant and Appellant. 

Appeal from: Workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellants: 

Garlington, Lohn and Robinson, Missoula, Montana 

Robert E. Sheridan, Jr. argued, Missoula, Montana 

For Respondent: 

Hirst and Dostal, Plissoula, Montana 

John A. Dostal argued, Missoula, Montana 

Submitted: January 19, 1978 

Decided: AUG '3 1318 - - 
Mr. Justice Daniel J. Shea delivered the Opinion of 

the Court. 

Liberty Mutual Insurance Company, the insurance carrier 

for the employer, General Host Corporation, appeals from an 

order of the Worker's Compensation Court determining claimant, 

Betty Hutchison, had suffered a compensable injury and was 

entitled to compensation and medical benefits. 

Liberty Mutual first contends claimant suffered no 

compensable injury because she failed to establish her injury 

was a "tangible happening of a traumatic nature from an * * * 

unusual strain" within the meaning of section 92-418, R.C.M. 

1947. Liberty Mutual also contends that the Worker's Compensation Court made several errors in determing the weekly benefits 

to which claimant was entitled and the Court erred in allowing 

claimant's medical expenses introduced in evidence as well as 

unlimited future medical expenses. The claimant agrees in part 

that the Court erred in using statutes not in effect at the time 

of the injury to award weekly benefits and medical benefits and 

agrees the order should be changed to reflect the application 

of the correct statutes. The last contention of Liberty Mutual 

is the Court improperly assessed a 10 percent penalty pursuant 

to section 92-849, R.C.M. 1947. 

Claimant was a part-time employee of Eddy's Bakery in 

Missoula, a subsidiary of the General Host Corporation. While 

dumping pans of buns, pulling racks and pulling pallets she 

reached up and slipped, but did not fall. She felt a twinge 

of pain in her back. She continued to work that day but experienced 

pain in her legs and back the following day. Over the weekend 

she and her husband drove to Great Falls to visit their family 

and she complained to her husband that her legs and back hurt. 

Upon their return from Great Falls on Sunday she telephoned her 
foreman and told him of the injury. They discussed insurance 

at that time. On Monday, March 28, 1973, claimant saw a 

doctor concerning her injury and thereafter saw several more 

doctors. She lost some time from work but did work between 

April 19, 1973 and June 23, 1973, but finally quit work because 

her back was causing too much distress. 

On May 2, 1974, a hearings examiner for the Industrial 

Accident Board (the predecessor to Workmen's Compensation 

Division) entered his findings and conclusions that claimant 

sustained an injury arising out of the course and scope of 

her employment and thus was entitled to compensation and 

benefits. On May 7, 1974, the Board entered an order that 

claimant was entitled to compensation benefits under sections 

92-701 and 92-702, R.C.M. 1947 and to medical benefits under 

section 92-706, R.C.M. 1947. Apparently the issue at the 

hearing was confined to that of whether claimant had sustained 

a compensable injury. Accordingly, the order of May 7, 1974 

ordered benefits were to be paid "as the facts, yet to be 

established, may justify." 

Thereafter, Liberty Mutual refused to pay either compensation or any medical benefits. Claimant contends Liberty Mutual 

was aware of the minimum weekly compensation required to be 

paid under section 92-701, and that it should have at least 

started paying this minimum compensation. Claimant also contends 

Liberty Mutual had copies of claimant's payroll records from 

Eddy's Bakery and also had copies of most medical bills then 

existing, both contested and uncontested. 

Because Liberty Mutual persisted in its refusal to pay 

any benefits, between the end of May 1974 and August 20, 1974, 

claimant's counsel wrote five letters to Liberty Mutual demanding 

that payments be made. In mid-August 1974 the head of the 
Industrial Accident Board issued a directive to Liberty 

Mutual demanding that it immediately comply with the order 

of payment. The directive specifically pointed out that no 

agency or court had granted a stay order and thus that any 

appeal of Liberty Mutual's would not stay the payment of 

benefits. Nonetheless, Liberty Mutual still refused to pay 

any benefits and has not paid any benefits to this date. 

For quite some time, the case was in a state of limbo 

caused in part from the switchover from the Industrial 

Accident Board to the Workers' Compensation Division and the 

creation of a separate Workers' Compensation Court to handle 

nothing but industrial injury claims. A hearing was finally 

held in January 1977 before the Workers' Compensation Court. 

It is from the findings and conclusions entered after the 

hearing that Liberty Mutual appeals. 

Liberty Mutual first contends claimant did not sustain 

a compensable injury under section 92-418, R.C.M. 1947. The 

argument is although claimant alleges she injured her back 

while in the scope and course of her employment, she is unable 

to relate the unusual strain to a tangible happening of a 

traumatic nature. Liberty Mutual argues claimant did not 

relate the strain to any particular task or function she was 

required to perform, and could not relate the strain to any 

particular time period within the working day. 

It is true claimant was unable to state exactly what time 

during the day she suffered the twinge in her back, but we do 

not feel one is compelled to punch a time clock at the time of 

injury in order to qualify for coverage under the Act. It is 

enough that she suffered the twinge in her back while working 

and testified what she was doing at the time. 

On direct examination claimant testified what she was 

doing at the time she felt the twinge in her back. She testified 

-4- 
she slipped on the floor while performing the work but did 

not know why she slipped. She continued to work for the 

remainder of the shift although her back occasionally bothered 

her. On cross-examination she testified: 

"Q. Specifically, on the date of March 23, 

what specific thing did you do that day and 

suddenly become aware that your back bothered 

you? A. As close as I can remember, I was 

pulling the red pallets to put them on the 

dolly to take the buns to the racks, and they 

were high above my head. I was pulling and 

pushing to get them down to where I could 

get them, and I kind of slipped. 

"Q. On the floor? A. Yes, I didn't go all 

the way down, I just twisted and kind of 

changed my balance and I got a little twinge. 

"Q. Are you aware of what time of day this 

happened? A. No, I'm not." 

In attacking claimant's credibility Liberty Mutual contends she is unworthy of belief because her co-workers on the 

day involved did not know she was injured and because she 

later made a statement to her foreman that she injured her 

back while changing a flat tire. This testimony, however, 

does not establish claimant was not injured. Moreover, it 

was within the province of the Workers' Compensation Court to 

give this evidence the weight to which it thought entitled. 

Obviously, the Court did not think the evidence was entitled 

to much weight. 

One co-employee testified she did not see any injury take 

place and did not know of claimant's injury until after claimant 

had called in to report it. She asked claimant how she injured 

her back and apparently claimant did not state she injured it 

while she was lifting or straining. The second co-employee 

worked closely with claimant on the day involved and she did 

not know claimant had injured herself. When they later 

discussed claimant's problem claimant was not specific about 

how she injured her back. However, it does not appear co-employee 
ever asked claimant how she injured her back. The third 

co-employee testified she worked on a different floor than 

claimant on the day involved with the exception of one hour 

and therefore would not have known of the injury. This 

testimony does not establish claimant was not injured in the 

manner in which she testified. 

After claimant had reported the injury to her employer, 

she still had back problems and did not want to report to 

work. On one occasion she called the foreman and told him 

she could not make it to work because she had injured her back 

while changing a flat tire. During the hearing claimant admitted 

she had given this story to the foreman, but had fabricated 

it because she thought she would lose her job if she told her 

employer she could not come to work because of the injury 

sustained on the job. She agreed she had never been threatened 

with the loss of her job. A friend of the claimant testified 

she had helped claimant fabricate the story. 

Whatever the situation may be, we again emphasize this 

evidence is strictly within the province of the lower court 

to resolve. Our function is simply to determine if there is 

substantial evidence in the record to support the lower court's 

findings and conclusions. Moffett v. Bozeman Canning Co., et 

al. (1933) 95 Mont. 347, 26 P.2d 973. On the basis of the 

record before us there certainly is substantial evidence to 

support the lower court's order. 

Liberty Mutual next contends Workers' Compensation Court 

applied the wrong formula in awarding weekly compensation 

benefits to claimant. Although available for work on a full-time 

basis, claimant was called for work by Eddy's Bakery only on a 

part-time basis. She did not work a regular schedule and was 

primarily called to work at the convenience of her employer. 

-6- 
During some weeks she might work only one day and other 

weeks she might not be called to work at all. 

Claimant started working at Eddy's Bakery on August 17, 

1972 and terminated on June 21, 1973. From the date of her 

employment until March 23, 1973, she was employed for a 

period of thirty-two weeks and earned $774.03. Her average 

weekly wage during this period of time was $24.19. The maximum 

weekly wage that she received during the course of her employment 

was $91.35. This occurred on only one occasion. In determining 

the weekly benefits to which claimant was entitled, the 

Workers' Compensation Court used this maximum figure of $91.35 

and Liberty Mutual contends this was error. 

Liberty Mutual contends the Court was required to use one 

of two wage averaging formulas in arriving at the weekly wage. 

It should either have averaged the total earnings over the 

entire thirty-two week period or it should have averaged the 

total earnings based on the number of weeks plaintiff actually 

performed work at Eddy's Bakery. In the first instance the 

average wages would be slightly over $24. In the second instance, 

the average wage would be slightly over $44. Since the minimum 

weekly compensation rate for claimant under section 92-701, 

R.C.M. 1947, was then $45, Liberty Mutual contends that claimant 

should have been paid only the $45 per week, rather than the 

$60.90, which the Court ordered by using the $91.35 figure. We 

conclude neither of the averaging methods offered by Liberty 

Mutual is required for determining the weekly compensation. 

Section 92-701 is not a wage loss statute; rather it is 

designed to provide a form of insurance to a person who is 

on temporary total disability. 

The statutes then in effect provided for a scheme of 

benefits which differed depending upon the nature and permanency 

-7- 
of the injury. Section 92-701, R.C.M. 1947, provided compensation for temporary total disability. Section 92-702, R.C.M. 

1947 provided compensation for an injury causing total 

permanent disability. Section 92-703, R.C.M. 1947, provided 

compensation for permanent partial disability. Section 92-704, 

R.C.M. 1947, provided compensation to the family of one who 

was killed in an industrial accident. In determining the 

benefits sections 92-702 and 92-703 required past earnings as 

well as future earnings to be considered before making an award 

of compensation. But section 92-701 requires only a minimum 

and maximum compensation that must be paid. 

In interpreting a predecessor statute to section 92-701, 

this Court in House v. Anaconda Cop. Min. Co. (1942), 113 Mont. 

406, 126 P.2d 814, declared the weekly compensation for temporary 

total disability is a form of insurance and is not to be 

restricted by wage averaging considerations: 

" * * * Workmen's compensation was provided--not 

to pay damages to the injured employee, in which 

case the actual wage received would, of course, 

be the conclusive measure of the compensation 

to be paid, as that would be the loss, plus 

pain and suffering--but rather the purpose of 

the Act was to provide a form of insurance, 

place the loss on the industry and to insure 

that the injured workmen would not be charges 

on the public." 

House has remained the law. Simons v. C. G. Bennett Lbr. 

Co. (1965), 146 Mont. 129, 404 P.2d 505; Graham v. Tree Farmers, 

Inc. (1963), 142 Mont. 483, 385 P.2d 83. To apply ~iberty 

Mutual's theory to section 92-701 would be to deny meaningful 

benefits to many workers who were injured before they were 

fortunate enough to build up an employment history with a 

particular employer. It would confine a great many working 

people to receiving only the statutory minimum weekly allowance 

for temporary total disability. 
Liberty Mutual relies on the case of Infelt v. Horen, 

et al. (1959), 136 Mont. 217, 346 P.2d 556 in asserting 

claimant's wages must be averaged to arrive at a figure of 

weekly compensation for total temporary disability. But 

Infelt was not a case involving total temporary disability. 

The issue concerned a case of permanent partial disability 

under the predecessor statute to section 92-703, R.C.M. 1947. 

The statute set out a rate of compensation to be calculated 

by " * * * difference between the wages received at the time 

of the injury and the wages that such injured employee is 

capable to earn thereafter, * * *" Clearly, Infelt involved 

an earning capacity issue and has no application to the facts 

of this case. 

In determining the amount of temporary total disability 

weekly wages must first be determined. Once that is done the 

wage figure is applied to the factor contained in section 92-701, 

R.C.M. 1947 to arrive at the actual amount weekly compensation 

to which one is entitled. Under section 92-423, R.C.M. 1947 

"wages" is defined as the "average" wages earned for the "usual 

hours of employment in a day." Here, the working day was 

defined by the union contract as 7.5 hours (anything more than 

this was overtime). Prior to her injury claimant had worked 

an entire week at 7.5 hours per day. The hourly wage rate 

was $2.426 per hour. Accordingly, under section 92-423, R.C.M. 

1947, the "usual hours of employment in a day" was 7.5 hours 

multiplied by the hourly wage rate of $2.426 per hour. Under 

section 92-422, R.C.M. 1947, a "week" for the purposes of fixing 

compensation is considered to be "five (5) working days". 

Accordingly, the daily wages multiplied by 37.5 hours in the 

work week, came to $91.35. We find no error. 

The actual weekly benefits that the Workers' Compensation 

Court determined claimant was entitled to was $60.90 per week. 

-9- 
This was arrived at by multiplying the $91.35 by the 66 2/3 

percent factor contained in section 92-701.1. Section 92-701.1 

however, was not in effect at the time and thus the Court 

should have used its predecessor statute, section 92-701, 

which had a compensation factor of 66.5 percent for one in 

the claimant's position. Claimant agrees that the wrong 

statute was used. The weekly compensation therefore, must 

be amended to reflect use of the proper statute. The weekly 

compensation to which claimant is entitled under temporary 

total disability is $57.09. 

After finding her claim compensable the Workers' 

Compensation Court awarded unlimited medical benefits under 

section 92-706.1, R.C.M. 1947. This statute went into effect 

on July 1, 1975, more than a year after claimant's injury. 

Liberty Mutual contends that the Court followed the wrong 

statute and should have applied section 92-706, R.C.M. 1947, 

which was in effect at the time. The claimant concedes that 

the Court applied the wrong statute but argues that the circumstances of this case require that section 92-706 be applied 

to allow claimant the maximum possible medical coverage. 

Section 92-706 provides: 

"During the first thirty-six (36) months after the 

happening of an injury, the employer or insurer 

or the board, as the case may be, shall furnish 

reasonable services by a physician or surgeon, 

reasonable hospital services or medicines when 

needed, and such other treatment approved by 

the board, not exceeding in amount the sum of 

twenty-five hundred dollars ($2,500.00) provided, 

however, that in cases of total disability 

when apportionment of such sum does not meet 

all hospitalization expenses, the board may 

allow an additional amount for additional 

hospital and medical expenses as in special 

cases it may deem proper." 

As far as we can tell from the record, claimant has 

been disabled since her injury. During this time she has 

submitted medical bills in the amount of $1,833.37 and Liberty 
Mutual has not paid them. Claimant cannot pay for them 

herself. She needs a back operation which at the time was 

estimated conservatively to cost $3,000. We would not venture 

a guess as to what the cost may be today. Not having the 

resources, claimant has not been able to have the recommended 

surgery even though an operation on her back was advised as 

soon as possible. 

The general thrust of Liberty Mutual's argument is if it 

must pay medical expenses, then that duty ended three years 

(36 months) after the date of the injury. Accordingly, it 

should only be held responsible for those medical and hospital 

expenses incurred during the 36 months immediately following 

claimant's injury. Under section 92-706, R.C.M. 1947, the 

former Industrial Accident Board was authorized in its discretion, 

to allow additional amounts for hospital and medical expenses 

in special cases. One of the conditions of a special case is 

that it must be a total disability. Here, we do not know if 

claimant is totally disabled. While it appears she is in need 

of a spinal fusion we cannot say what the future holds for her 

in terms of the extent of disability. 

It could well be that claimant's situation may amount to 

a special case of total disability. If so it would work an 

injustice to hold that since the 36 months has passed she is 

not eligible for consideration as a special case. After all, 

it has been Liberty Mutual that has been fighting this case all 

the way and which has steadfastly refused to recognize and pay 

any benefits that have been awarded to claimant, even though 

it has not obtained a stay order. In any event, a special case 

of total disability would have to be presented to the now 

existing Workers' Compensation Division for its consideration. 

-11- 
But even if it is later determined claimant is not a 

special case of total disability, we do not feel that in good 

conscience, Liberty Mutual can avoid any expenses incurred 

by claimant after the expiration of the 36 months from the 

date of the injury and which may be incurred in the future. 

It would be unconscionable to allow Liberty Mutual to use the 

court system to its advantage and thereby avoid its obligations 

to claimants under the Workmen's Compensation Act simply 

because the time has elapsed for the payment of benefits. To 

the extent of its statutory obligation under section 92-706, 

R.C.M. 1947, we hold Liberty Mutual must pay any expenses 

incurred after the expiration of the 36 months from the injury, 

or which may be incurred in the future, which are related to 

the injury. 

Liberty Mutual also contends that the Workers' Compensation 

Court improperly allowed the payment of all medical bills which 

claimant submitted to the Court during the January 1977 hearing. 

The expenses amounted to $1,833.37 and the Court allowed all 

of them. Liberty Mutual argues many of the bills do not relate 

to treatment of claimant's back injury. It also contends that 

the bills should not be allowed because the claimant saw many 

doctors without being referred from the first doctor who treated 

her and without getting permission from the insurer before 

changing doctors, as required by Montana Administrative Code, 

§24-3. 18(22)--S18080. 

Liberty Mutual has not pointed to any bills submitted by 

claimant that were not related to claimant's injury and we will 

not substitute our judgment for that of the Workers' Compensation Court. Moreover, the administrative regulation does not 

apply to the facts of this case. If would be an idle act for 

the claimant to request Liberty Mutual's permission to change 

-12- 
doctors when Liberty Mutual had in fact denied the compensability of the claim. Indeed, Liberty Mutual would 

probably have taken the position that since claimant's claim 

was not compensable the claimant did not have to get the 

insurer's permission. Perhaps Liberty Mutual feared that to 

grant permission to change doctors would impliedly recognize 

the compensability of claimant's injury. 

This Court recently ruled the administrative regulation 

involved cannot prohibit a claimant from going to the doctor 

of her choice and such doctors could support her claim for 

compensation. The only effect of the rule is that if no 

permission is obtained, the insurer is not obligated to pay 

the medical expenses incurred. Garland v. Anaconda Co. 

(19781, Mont. I P. 2d , 35 St.Rep. 

(No. 14132, 7/3/78). While not factually applicable 

to the circumstances of this case, we stated that the admini-. 

strative rule could not be used to defeat the general purpose 

of the Workmen's Compensation Act. The same is true of the 

case at hand. Where an insurer refuses to recognize the 

compensability of a claim there is no duty on the claimant 

to obtain permission of the insurer to change doctors. In 

denying a claim an insurer is taking a chance that later it 

may be proven to be compensable. If so, the insurer, in 

denying liability for medical bills, cannot hide behind the 

regulation as a sanctuary against the payment of medical 

bills incurred by a claimant. 

In this case the Workers' Compensation Court ordered 

payment of the medical bills and we see no evidence to justify 

overturning that order, in whole or in part. The only evidence 

elicited on cross-examination of claimant was that the original 

doctor claimant had seen, did not refer her to the remaining 

doctors. Even if that were so, we cannot conclude under the 

-13- 
facts of this case that claimant had no right, under pain 

of losing medical benefits, to seek out the medical treatment 

she felt necessary to get to the source of her problem. 

Accordingly, the Court was correct in ordering Liberty Mutual 

to pay all the bills submitted by claimant. 

Finally, Liberty Mutual complains that the Workers' 

Compensation Court was wrong in assessing a statutory 10 percent 

penalty against them for unreasonably delying or refusing to 

pay compensation. Section 92-849, R.C.M. 1947. An analysis 

of the facts leads us to conclude that reasonable men would 

conclude that Liberty Mutual has been anything but reasonable. 

For the past three years Liberty Mutual has not only 

denied the compensability of the claim but refused to pay the 

weekly compensation and medical benefits after it had been 

ordered to do so. It refused even though it did not have a 

stay order delying payment until final resolution of this matter. 

Assuming moreover, a legitimate dispute as to the amount of 

weekly compensation, Liberty Mutual knew claimant would at 

least be entitled to the minimum compensation compelled by 

statute. And there were certain medical bills even Liberty 

Mutual recognized as being related to the injury, but still 

the bills remain unpaid. Clearly the assessment of the 

statutory 10 percent penalty was called for in this case. 

The decision of the Workers' Compensation Court is 

affirmed except as to the modifications noted herein. This 

case is remanded to the Workers' Compensation Court for 

further proceedings consistent with this opinion and for 

such further proceedings as are required to bring this case 

to a final resolution. 
We Concur: 

Chief JUS tice 

W&& 
Mr. Justice John Conway Harrison Dissenting: 

I respectfully dissent. 

I do not find claimant, Betty Hutchison, carried the 

burden of proof with respect to the job-related character of 

her injury. She could not relate the injury to any particular time of day nor to any specific task she performed on 

that day. None of her co-workers was aware that she had 

injured her back while working. In addition, claimant told 

her foreman she had injured her back changing a flat tire. 

The majority states: "This testimony does not establish that 

claimant was -- not injured in the manner in which she testified." (Emphasis added.) But it is not necessary for an 

employer to prove that an employee was not injured--that 

would place an unreasonable burden on the employer. One 

claiming to have been injured on the job has the burden of 

proving such an injury. Vetsch v. Helena Transfer & Storage 

Co. (1969), 154 Mont. 106, 460 P.2d 757. 

The majority does not properly assess the significance 

of section 92-418(1), R.C.M. 1947 (Supp. 1977). According 

to the statute, an injury must be: 

" (1) a tangible happening of a traumatic 

nature -- from an unexpected cause, or unusual 

strain, resulting in either external or 

internal physical harm, and such physical 

condition as a result therefrom * * *." 

(Emphasis added. ) 

Claimant, in the instant case, has failed to show a "tangible 

happening" which meets the requirements of this Court's 

test stated in Hurlbut v. Vollstedt Kerr Co. (1975), 167 

Mont. 303, 306-07, 538 P.2d 344: 

"* * * there are two elements in the statute 

which must be met (1) there must be a tangible happening of a traumatic nature, and (2) 

this must be shown to be the cause of physical harm. I' 
Apart from the question of whether this was a compensable injury, I think the majority also erred in allowing 

payment of all the medical bills claimant submitted. By 

claimant's own admission, certain bills were included which 

had - no connection with the alleged injury. When asked about 

her listing three gynecologists with her other treating 

physicians, claimant admitted: 

"Q. The doctors did not see you for your 

back, did they? A. No." 

Furthermore, she submitted bills from at least ten 

different doctors. Yet, there is no allegation that 

claimant's original treating physician did not properly 

treat her. There is no evidence of any emergency necessitating claimant's going to another doctor. While I admit 

there are often circumstances apart from those mentioned 

which might require treatment by another physician, I would 

impose a rule of reasonableness in seeking a variety of 

medical opinions. 

For these reasons I would reverse the decision of the 

Workers' Compensation Court as to liability; or in the 

alternative, I would reverse the court's decision regarding 

allowable medical expenses and remand for further consideration in line with this opinion.