No. 14239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

ROSEMARY F. CATTEYSON, 

Claimant and Respondent, 

-vsFALLS MOBILE HOME CENTER, INC., Employer, 

and 

GLACIER GENERAL ASSURANCE COMPANY, 

Defendant and Appellant. 

Appeal from: Workers' Compensation Court 

Hon. William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jardine, Stephenson, Blewett and Weaver, Great Falls, 

Montana 

For Respondent: 

Barry Olson, Great Falls, Montana 

Submitted on briefs: April 12, 1979 

Decided : AU G - 9 1979 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Falls Mobile Home Center, Inc., and Glacier General 

Assurance Company, defendants, appeal from the modified 

conclusions of law and judgment dated February 27, 1978, 

entered by the Workers' Compensation Court. Respondent 

claimant was at the time of the industrial accident employed 

by Falls Mobile Home Center, Inc. Glacier General Assurance 

Company was employer's industrial accident insurer. 

The Workers' Compensation Court by its judgment decided 

that claimant was entitled to temporary total disability 

payments under section 39-71-701 MCA, from November 20, 

1974, to October 27, 1976, and temporary total payments from 

October 28, 1976, to March 3, 1977, for the failure of the 

carrier to notify the Workers' Compensation Division of its 

intention to unilaterally terminate benefits. Section 39- 

71-609 MCA. The court further held that claimant suffered 

10 percent permanent partial injury under section 39-71- 

116(12) MCA, entitling her to benefits pursuant to section 

39-71-703 MCA. Finally, the court awarded claimant attorney 

fees pursuant to section 39-71-612 MCA, in the amount of 

$1500. 

Shortly before 4:00 p.m. on November 20, 1974, claimant 

was injured in an automobile accident as she was heading 

north on 13th Street North in Great Falls, Montana. At the 

time of the accident, claimant had two jobs--one as a handy 

person for Falls Mobile Home and one as a dispatcher for 

Black and White Cab. There was some dispute as to what 

claimant was doing at the time of the accident. The carrier 

contended she was on her way to her job at Black and white 

Cab; claimant contended, and the Workers' Compensation Court 

found, that she had been running an errand for Falls ~obile 

Home. 
On December 5, 1974, claimant filed for benefits and 

the compensation carrier for Falls Mobile Home began paying 

her benefits. Later, and while compensation benefits were 

being paid, the carrier notified claimant by letter that 

compensation would be discontinued when her doctor released 

her to work. 

Temporary total benefits were paid until June 25, 1976, 

when claimant was released for work. The payments were then 

discontinued and a "Compensation Advice Form" was sent to 

claimant on July 22, 1975, and forwarded to the Workers' 

Compensation Division. 

Thereafter, the parties corresponded for a period of 

ten months in an effort to determine whether claimant had 

suffered any permanent disability. Later claimant filed a 

petition with the Workers' Compensation Court for a hearing. 

Prior to the hearing, the carrier discovered that claimant 

may have been on her way to her second job at the time of 

the accident. It therefore withdrew its settlement offers 

and chose to defend on the ground that claimant had not 

suffered a compensable injury. 

The Workers' Compensation Court found in favor of 

claimant, and the carrier appeals. 

Initially we are asked to determine whether the evidence supports the Workers' Compensation Court's conclusion 

that the employee was injured in an industrial accident and, 

as a result, was permanently or partially disabled. We find 

that it does. 

While there was disputed evidence as to what claimant 

was actually doing at the time of the accident, the workers' 

Compensation Court found that she was running an errand for 

Falls Mobile Home. There is sufficient evidence in the 

record to support this finding: 
"Whether this Court agrees is of no moment. 

Since credible and substantial evidence appears in the record in support of the Workers' 

Compensation Court, we are bound by its decision on the facts." McGee v. Bechtel Cor~. 

(1979) Mont. , 595 P. 2d 1156, i158- 

59, 36 St.Rep. 220, 224. 

There is also sufficient credible evidence to support a 

conclusion that claimant was permanently partially disabled 

and entitled to benefits under section 39-71-703 MCA. 

Next we are asked to decide whether the Workers' Compensation Court erred in holding that the carrier had unilaterally terminated claimant's benefits and that termination 

was improper. 

In support of its conclusions of law, the court cited 

Clark v. Hensel Phelps Construction Company (1977), 

Mont. , 560 P.2d 515, 34 St.Rep. 61. In Clark, the 

issue presented to this Court was the necessity of giving 

claimant written notice and acquiring approval of the Division of Workers' Compensation prior to the termination of 

benefits. The Court found the controlling statute to be 

section 92-615, R.C.M. 1947, now section 39-71-609 MCA, 

which originally read: 

". . . If the insurer determines to initially 

deny the claim, or after a claim has been accepted, terminates biweekly compensation benefits, it may do so only a£ ter £if teen (15) days 

written notice to the claimant and the division 

and after written approval of the division." 

This section has since been amended and no longer 

requires written approval of the Division. Section 39-71- 

609 MCA. This amendment, however, has no effect on the 

Clark rule. The issue in Clark was one of first impression 

in this state. In reaching our decision we looked to Xhode 

Island which had interpreted a statute similar to our present 

day section 39-71-609 MCA, and held: 
". . . if the employer does attempt to unilaterally terminate the payment of benefits such attempted termination is ineffective. The employer 

remains liable for the payment of benefits until 

the termination is accomplished by following the 

statutory notice provision." Clark, 560 P.2d at 

517. 

Here, the carrier advised the employer and the Division 

some 27 days after termination and not 15 days before as is 

required by law. The Workers' Compensation Court was correct in its application of the Clark rule in this case. 

Once it has been determined that section 39-71-609 MCA 

and Clark have been violated, the carrier "remains liable 

for the payment of benefits until the termination is accomplished by following the statutory notice provision. " 

Clark, 560 P.2d at 517. The Workers' Compensation Court 

correctly found that claimant was entitled to temporary 

total benefits from the date of the improper termination to 

the date of its order for the failure of the carrier to 

comply with section 39-71-609 MCA. 

The carrier contends that even if the notice of termination was improper, that claimant had waived her right to 

notice. This contention is without merit. "No agreement by 

[claimant] to waive any rights under this chapter for an 

injury to be received shall be valid." Section 39-71-409 

MCA . 

Furthermore, notice is also required to be given to the 

division under section 39-71-609 MCA. There is no evidence 

before this Court to indicate that the Division waived its 

right to notice. 

The carrier questions whether the Workers1 Compensation 

Court can aggregate earnings from two separate and unrelated 
employments for the purpose of determining benefits payable. 

This Court has recently approved the aggregation of wages 

from separate and unrelated employments. Walker v. H. F. 

Johnson, Inc. (19781, Mont. , 591 P.2d 181, 35 

Finally, the carrier objects to an award of attorney 

fees. Section 39-71-612 MCA provides that if: 

". . . controversy relates to the amount of 

compensation due and the settlement or award 

is greater than the amount paid or tendered 

by the employer or insurer, a reasonable attorney's fee as established by the division 

or the workers' compensation judge if the 

case has gone to a hearing, based solely upon 

the difference between the amount settled for 

or awarded and the amount tendered or paid, 

may be awarded in addition to the amount of 

compensation. " 

Further, "[tlhe finding that claimant is entitled to 

section 92-703.1 [now section 39-71-703 MCA] benefits triggers section 92-618 [now section 39-71-612 MCA] entitling 

claimant to '. . . a reasonable attorney's fee as established by the division or workmen's compensation judge 

... 1 11 Walker, 591 P. 2d at 185. 

Claimant clearly fits into both of the above situations. There is also nothing to indicate that the compensation judge deviated from the formula set out in section 39- 

71-613 MCA. 

The judgment of the Workers' Compensation Court is 

a£ firmed. 

t 

Justice /' 
We concur: 

7Adb4 wadq Chief Justice 

\.-:)i,.- tt \L~~L-/ 

Justices