No. 82-371 IN THE SUPREME COURTOF THE STATEOF MONTANA 1984

ROBERT MOILAZWN

### , ClaimantandAppellant,

-vsMARBLES MOVING & STORAGE, Employer, and STATE COMPENSATION INSURANCEFUND, Defendantand Respondent.

APPEAL FROM: Workers' CompensationCourt,The Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Hoyt & Trieweiler;JohnC. 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: 

# JAN3

# -I985Mr. Justice Daniel J. Shea delivered. the Opinion of the Court.

Claimant Robert Moilanen appeals an order of the Workers' Compensation Court concluding thathewas 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 topay benefits. We reverse the trial court on the disability issue and hold that claimant proved he was permanently disabled as he

was not required toundergoback surqery todetermine whether his condition would change. The question that now must be decidedby the trial court iswhether 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 sumwas 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 ofwhether 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 actionwas an unreasonabletermination. 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. Claimanthad 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 furnituremover. The State Fund requested that a Great Falls evaluationpanel determine his condition. Thepanel 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-uationpznel foundno objective or neurol-ogicalreason 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..usionof zero impairment,and further stated that clai-mant'spain and inability to provide for his family produced anger and frustration that resulted. in extreme functional disorders. Although the psychologist did not agreewith the panel's conclusionof zero impairment, she did not provide an opinion on what the impairment rating would he. A short time Later,Dr. Johnson examined claimantbut he found no neurol-ogicalproblem. Nonetheless, claimant continued to have severepain and a secondmyelogramwas performed. It, too, indicated a normalback condition. But a fewmonths later another doctor, Dr. Nelson, examined claimant, and found that claimanthad a herniated disc in the lumbar area. In his report to the claimant's attorney he suggested that claimant would need surgery. Dr. Nel-sonlater stated that surgerywould decrease 45percent of claiment's back pain and 70 percent of cl-aimant'sleg pain, but that without surgery, claimant's conditionwould 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 attendanceat a "back school." From the time of his injury and continuing to the present, claimant has received temporary total disabilitybenefits. 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 ofwhich maintained claimant's status receiving temporary totald-isabilitybenefits. 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 fjnalwhen one is awarded temporary totaldisabilitybenefits 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 firstbeing the question of whether claimant proved hewas permanently totallydisabled. In ruling on the extent of disability issue, the trial courtheld that cl-aimantshould 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 inju- ries 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-ievethe 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 apossible solution forhis continuedpain. Under these circumstanc2s the claimant continued to be entitled to temporary total disability benefits and this court isunable tomake a determination of permanent total disability." Although it is true the claimant did not rule out back surgery, the cla.imantargues 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~mendingback surgery, Dr. Nelson predicated that without it claimant's condition was permanent. And claimantwas justifiably skeptical about undergoing ba.ck surgery. The prognosiswas that even with surgery, at least some pain would continue, and claimant justifiably had concern because of the complications that had developed after theperformance of the firstmyelogram. 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-liamsThea-tresv. Mickle (0kla. 19491, 205 P.2d 513. Also see 1 Larson,Workmen's CompensationT,aw,S 13.22 (1978). Without surgery the claimant's condition is permanent and.there is not even a contention that claimant unreasonabl-yrefused to have surgery. We hol.2 that claimantwas not required to undergo back surgery before a determination couldbe made on the extent of his disability.Nor doesDr. 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.ationswere simply made with the belief that claimant's symptomswould 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 neededmore therapy forhis depression,and there is no doubt he was depressed. Much of this depression was caused by cl.aimantlsinabil-ityto accept his condi-tionand the consequences of notbeing 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'sback 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 labormarket. The trial courtdid not rule on all the statutory factors affectinga c1a.i~. forpermanentdisability, 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 factualdeterminations. Claimant next contends he was entitled to a lump sum payment of futuredisabi1it.ypayments 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-inghere, 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. Claimantbypassed this statutoryprocedure 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 tobase a lump sumpayment. 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 permanentpartial benefits, even though claimant suffered no reduction in benefits because before the reductionswere put into effect, the trial court ruled that temporary total benefits should continue. The trial courtdid rule that the State Fundwrongfully terminated. claimant but did not rule on the necessary question 

### ofwhether 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

JusticesMr. Justice Frank R. Morrison, Jr., concurring inpart and dissenting 

### inpart.

The Workers1Compensation Court found that claimantwas totally disabled but that his disabilitywas "temporary" for the reason that back surgerymight 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 statusasbeing irrelevant. The issue of total disabilitywas resolved by the lower court. The case should 

### be remanded for a determination on whether claimant is entitled to a lump sum after theMr. JusticeFred J. Weber dissents: Irespectfullydissent from the opinion of themajority. In concluding that the defendant proved he was totally disabled a.ndreversing the District Court, the majority has not applied the well-settled standard of review for factual determinationsof theWorkers' CompensationCourt. The majority has quoted from the Workers' Compensation Court's findings regardingDr. Nelson's testimony concerning objective findingsofdiscproblems and theprobable 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.ingthat quoted portion of the findings, theWorkers' Compensation Court also stated: "The evidence in this case clearly establishes this claimant is not as far restored as the permanent characterofhis injurieswillpermit." 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 theWorkers' Compensation Court cannot make

a determinationofpermanent totaldisability. 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 fromproving at some future time that his recovery has proceeded as far as possible so that a permanentaward should be made. Iwould 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. JusticeWeber.

Chief Justice