No. 82-371 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

ROBERT MOILAZWN , 

Claimant and Appellant, 

-vsMARBLES MOVING & STORAGE, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hoyt & Trieweiler; John C. Hoyt argued, Great Falls, 

Montana 

For Respondent : 

John Sullivan argued, Helena, Montana 

Robert J. Campbell, Helena, Montana 

Submitted: January 12, 

Decided: January 3, 1985 

~iled: JAN 3 - I985 
Mr. Justice Daniel J. Shea delivered. the Opinion of the 

Court. 

Claimant Robert Moilanen appeals an order of the Workers' Compensation Court concluding that he was only temporarily totally disabled rather than permanently totally 

disabled. In addition, claimant contends that the trial 

court improperly refused his request for a lump sum conversion of future beneFits, and that the trial court failed to 

rule on claimant's request that the statutory 20 percent 

penalty be invoked based on a contention that the insurer 

unreasonably failed to pay benefits. 

We reverse the trial court on the disability issue and 

hold that claimant proved he was permanently disabled as he 

was not required to undergo back surqery to determine whether 

his condition would change. The question that now must be 

decided by the trial court is whether claimant is permanently 

partially disabled as the State Fund employer contends, or 

whether he is permanently totally disabled as the claimant 

contends. However, we affirm the trial court in its 

conclusion that claimant in any event was not entitled to a 

lump sum payment because he had bypassed the required 

statutory procedures of 5 39-71-741, MCA, which requires a 

written request for a lump sum to be presented to the 

Divisjon for its determination. We further agree that 

substantial evidence supports the trial court's conclusion 

that claimant's application for a lump sum was not sufficient 

to move the trial court's discretion in any event. On the 

issue of whether claimant is entitled to the 20 percent 

statutory penalty under 5 39-71-290, MCA, for unreasonable 

refusal to pay benefits, we remand for a determination of 
whether the empioyer unreasonably refused to pay disability 

benefits when it notified claimant that it would reduce his 

benefits from temporary total benefits to that of permanent 

partial disability benefits. Although the trial court ruled 

that the State Fund had wrongfully terminated the temporary 

total benefits, it did not rule on the question of whether 

this action was an unreasonable termination. 

Claimant injured his back on September 4, 1979, while 

working for Marbles Moving & Storage Company of Great Falls. 

State Fund, the carrier for the employer, accepted liability 

and began paying claimant temporary total disability benefits 

beginning September 6, 1979. Claimant was never able to 

return to work since that time and the primary issue is 

whether he should be required to submit to surgery before a 

determination can be made that he is permanently totally 

disabled. 

Back and leg pain prevented claimant from returning to 

work, and. in April 1980, a doctor performed a myelogram. 

This test showed essentially normal conditions except that a 

large cyst was disclosed on the nerve root in the I-urnbar 

region of claimant's back. Claimant had an edverse reaction 

to the myelogram and he was hospitalized for nine days because of complications. 

Claimant continued to have pain and could not work as a 

furniture mover. The State Fund requested that a Great Falls 

evaluation panel determine his condition. The panel consisted of two medical doctors, registered physical therapist 

and a clinical psychologist. The panel examined claimant on 

December 18, 1980. They used an evaluation guide that rated 

disability based on loss of function of the limb or part of 

the body affected. A majority of the eval-uation pznel found 
no objective or neurol-ogical reason for claimant's continued 

pain, and, using the eva.11xa.tion guid.e, the panel crave him a 

zero impairment rating. The clinical. psychol.ogist , however, 

differed with the concl..usion of zero impairment, and further 

stated that clai-mant's pain and inability to provide for his 

family produced anger and frustration that resulted. in extreme functional disorders. Although the psychologist did 

not agree with the panel's conclusion of zero impairment, she 

did not provide an opinion on what the impairment rating 

would he. 

A short time Later, Dr. Johnson examined claimant but he 

found no neurol-ogical problem. Nonetheless, claimant continued to have severe pain and a second myelogram was performed. 

It, too, indicated a normal back condition. But a few months 

later another doctor, Dr. Nelson, examined claimant, and 

found that claimant had a herniated disc in the lumbar area. 

In his report to the claimant's attorney he suggested that 

claimant would need surgery. Dr. Nel-son later stated that 

surgery would decrease 45 percent of claiment's back pain and 

70 percent of cl-aimant's leg pain, but that without surgery, 

claimant's condition would be permanent. 

Yet another doctor examined claima.nt, and he also concluded that claimant had a herniated disc. Dr. Snider, an 

orthopedic surgeon, reported that claimant had a possible 

herniated disc in the lower lumbar area. The doctor rated 

claimant's physical impairment at 5 percent as compared to 

the whole h0d.y. However, Dr. Snider did not recommend 

surgery. Rather, he recommended use of a back support and 

attendance at a "back school." 

From the time of his injury and continuing to the 

present, claimant has received temporary total disability 
benefits. While the case was pending before the Workers' 

Compensation Court, the State Fund, based on medical reports 

that claimant was not temporarily totally disabled, sent 

claimant notice that his benefits would be reduced to permanent partial benefits. Hcwever, before his benefits were 

actually reduced, the Workers' Compensation Court ruled on 

the issues, the effect of which maintained claimant's status 

receiving temporary total d-isability benefits. 

Because the claimant was awarded temporary total 

disability this Court questioned whether such an award is 

final because of its temporary nature. We therefore asked 

the parties to brief the question of whether an order is 

fjnal when one is awarded temporary total disability benefits 

rather than permanent total disability benefits. Both 

parties have concluded that such an order is appealable. 

Because the Workers' Compensation Act requires a liberal 

construction to effectuate its purpose, and because we must 

recognize this requirement in our own procedural rules governing appealability of issues, we conclude also that the 

question is appealable. We therefore proceed to the remaininq issues, the first being the question of whether claimant 

proved he was permanently totally disabled. 

In ruling on the extent of disability issue, the trial 

court held that cl-aimant should be continued on the status of 

temporary total disability. The court stated that "the 

evidence in this case clearly establishes this claimant - is 

- not as far restored as the permanent character of his injuries will permit. " The trial court relied on the testimony 

of Dr. Nelson, the report of Dr. Snider, the reports of the 

psychologists, and the testimony of the claimant. The court 

stated: 
"Dr. Nelson testified that his objective 

findings indicate disc problems and the 

probable need for surgery in the future 

to rel-ieve the claimant' s back symptoms. 

Dr. Snider recommended a back school, and 

use of an abdominal support. The psychologists indicate a need for therapy to 

assist the claimant with his depression. 

The claimant testified he is skepticalabout surgery, but he did not rule it out 

completely as a possible solution for his 

continued pain. Under these circumstanc2s the claimant continued to be entitled 

to temporary total disability benefits 

and this court is unable to make a determination of permanent total disability. " 

Although it is true the claimant did not rule out back 

surgery, the cla.imant argues that substantial evidence supports a finding that he is permanently totally disabled and 

that he should not be required to undergo back surgery to 

prove this fact. In reco~mending back surgery, Dr. Nelson 

predicated that without it claimant's condition was permanent. And claimant was justifiably skeptical about undergoing ba.ck surgery. The prognosis was that even with surgery, 

at least some pain would continue, and claimant justifiably 

had concern because of the complications that had developed 

after the performance of the first myelogram. 

Dfost courts do not require a claimant to submit to 

surgery in a situation where it has been reasonably refused. 

Clemons v. Roseburg Lumber Co. (Or.~pp. 1978), 578 ~.2d 429; 

K. Lee Wil-liams Thea-tres v. Mickle (0kla. 19491, 205 P.2d 

513. Also see 1 Larson, Workmen's Compensation T,aw, S 13.22 

(1978). Without surgery the claimant's condition is permanent and. there is not even a contention that claimant unreasonabl-y refused to have surgery. We hol.2 that claimant was 

not required to undergo back surgery before a determination 

could be made on the extent of his disability. 
Nor does Dr. Snider's testimony indicate that claimant's 

hack injury was anything less than permanent. Though he 

recommended a back school and use of an abdominal support, 

the recommendations were not made because of 2 belief that 

claimant would, with the best results, be able to enter the 

normal labor market again. His recommend.ations were simply 

made with the belief that claimant's symptoms would be all-eviated to some extent--in effect, that these measures might 

help claimant live with his condition. His condition, and 

the symptoms caused by this condition, would not be 

eliminated. 

Finally, the psychol~ogists indicated that claimant 

needed more therapy for his depression, and there is no doubt 

he was depressed. Much of this depression was caused by 

cl.aimantls inabil-ity to accept his condi-tion and the consequences of not being able to support his family as he had in 

the past. Although the therapy they recommended may have 

helped claimant deal with his back condition, the therapy 

would not heal claimant's back condition. 

The result is that claimant would, in any situation, 

have a permanently injured back. The real issue is not 

whether he was permanently disabled, but how that permanent 

disability may have affected his ability to function in the 

normal labor market. The trial court did not rule on all the 

statutory factors affecting a c1a.i~. for permanent disability, 

and the factual decision of whether claimant is totally or 

partially disabled is not one for this Court to make in the 

first instance. The trial court must therefore make these 

factual determinations. 

Claimant next contends he was entitled to a lump sum 

payment of future disabi1it.y payments under S 39-71-741, MCA, 
and that the trial court erred in refusing to allow it. The 

statute does not apply where the award is a temporary one. 

Therefore, based on the trial court's ruling that claimant 

should continue receiving temporary total disability 

benefits, claimant would not in any event be entitled to a 

lump sum payment, and the trial. court was not required to 

reach this issue. Nonetheless, the trial court did reach 

this issue and we agree with the conclusions. First, and 

controll-ing here, S 39-71-741 requires that a claimant submit 

a written plan to the Division setting forth the reasons for 

the lump sum request and the plan for using the lump sum if 

granted. Claimant bypassed this statutory procedure and this 

was sufficient for the court to deny the request for a lump 

sum payrcent even if the court had ruled that claimant's 

disability was permanent total. Second, the plan submitted 

was insufficient on its face to move the court's discretion 

because it was nothing more than a vague plan for the 

claimant to get into the hat blocking business. This plan 

was insufficient for either the Division or later the 

Workers' Compensation Court to base a lump sum payment. 

Finally, in asking for the 20 percent penalty in 

39-71-2907 PICA, for unreasonable refusal to pay benefits, 

A 

the claimant argues that the trial court was required to 

award this penalty. Claimant bases his contention on the 

decision by the State Fund to terminate his temporary totaldisability and pay him only permanent partial benefits, even 

though claimant suffered no reduction in benefits because 

before the reductions were put into effect, the trial court 

ruled that temporary total benefits should continue. The 

trial court did rule that the State Fund wrongfully terminated. claimant but did not rule on the necessary question of 
whether this constituted an unreasoneble refusal to pay 

benefits. We therefore remand for a determination of this 

issue. 

The Workers' Compensation Court is affirmed in part, 

reversed in part, and the case is remanded for further 

proceedings. 

We Concur: 

Chief Justice 

Justices 
Mr. Justice Frank R. Morrison, Jr., concurring in part and 

dissenting in part. 

The Workers1 Compensation Court found that claimant was 

totally disabled but that his disability was "temporary" for 

the reason that back surgery might improve his condition. I 

agree with the majority opinion that claimant need not 

undergo hack surgery and is ready to be evaluated. The 

Workers1 Compensation Court found claimant to be totally 

disabled and I would affirm this holding but reverse a 

determination that surgical improvement could improve his 

status as being irrelevant. 

The issue of total disability was resolved by the lower 

court. The case should be remanded for a determination on 

whether claimant is entitled to a lump sum after the 
Mr. Justice Fred J. Weber dissents: 

I respectfully dissent from the opinion of the majority. 

In concluding that the defendant proved he was totally 

disabled a.nd reversing the District Court, the majority has 

not applied the well-settled standard of review for factual 

determinations of the Workers' Compensation Court. 

The majority has quoted from the Workers' Compensation 

Court's findings regarding Dr. Nelson's testimony concerning 

objective findings of disc problems and the probable need for 

surgery, the psychologist's indication of need for therapy to 

assist with depression, and the testimony of the claimant 

that he is skeptical about surgery but did not rule it out. 

Immediately preced.ing that quoted portion of the findings, 

the Workers' Compensation Court also stated: 

"The evidence in this case clearly establishes this 

claimant is not as far restored as the permanent 

character of his injuries will permit." 

In view of that conclusion by the Porkers' Compensation 

Court, it was appropriate for the court to conclude that the 

claimant remains entitled to temporary total disability 

benefits and that the Workers' Compensation Court cannot make 

a determination of permanent total disability. 

The cited evidence constitutes substantial evidence to 

support the conclusion of the lower court tha.t the claimant 

is not as far restored as the permanent character of his 

injuries will permit. I would hold there is substantial 

evidence to support the findings and conclusions on the part 

of the Workers' Compensation Court. See Lamb v. Missoula 

Imports, Inc. (Mont. 1984), 684 P.2d 498, 499, 41 St.Rep. 

1414, 1416. That holding would in no way forecl-ose the 

defendant from proving at some future time that his recovery 

has proceeded as far as possible so that a permanent 
award should be made. I would affirm the determination of the 

Workers' Compensation Court. 

Mr. Justice L. C. Gulbrandson: 

I join in the foregoing dissent of Mr. Justice Weber. 

/e,& * 

Justice 

Mr. Chief Justice Frank I. Haswell: 

I join in the foregoing dissent of Mr. Justice Weber. 

Chief Justice