No. 86-74 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

ROBERT H. BURKLAND, 

Claimant and Appellant, 

-vsCOP CONSTRUCTION, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nye & Meyer; Jerrold L. Nye, Billings, Montana 

For Respondent: 

Crowley Law Firm; William J. Mattix, Rillings, 

Montana 

Submitted on Briefs: Oct. 23, 1986 

Decided: November 25, 1986 

Filed: HoV 2 5 4986 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Claimant, Robert H. Burkland (Burkland) appeals the 

decision of the Workers' Compensation Judge to deny claimant 

an award of costs and attorney's fees. We affirm the 

decision of the lower court. 

Burkland. fractured the neck of his left femur on April , 

1, 1983, while employed by COP Construction. COP 

Construction's insurer, the State Compensation Insurance Fund 

(State Fund) , agreed the in jury was compensable. Temporary 

total disability benefits at the statutory rate of $254.93 

per week were paid by State Fund from April 18, 1983, until 

March 19, 1985. 

Burkland achieved maximum medical healing by March 15, 

1984. At that time, Burkland's physician determined his 

permanent physical impairment rating to be 25%. After a 

~e~tember 4, 1984, visit, Burkland's physician determined 

that Burkland's leg had regained 90 - 95% of its musculature 

strength and that there was a very low probability of future 

difficulties. Burkland was therefore released to return t-o 

work as a truck driver. 

On March 19, 1985, the State Fund converted Burkland's 

temporary total disability benefits to permanent partial 

disability benefits of $131.50 per week. Burkland expressed 

apprehension about competing with younger, healthier 

individuals for truck driver positions. He determined that 

his ability to support himself would improve if he owned 

either a home or his own truck. Negotiations were thus 

commenced with the State Fund for a lump-sum settlement. 

Burkland initially suggested $45,000, a figure based on 

the temporary total disability benefits rate rather than the 

permanent partial disability rate. The State Fund countered 
with an initial offer of $16,437.50 as a "compromise 

settlement." That figure represents the rate of $131.50 per 

week over 500 weeks, rather than the scheduled term of 300 

weeks for a leg, diminished by 25%. Subsequent to that offer, 

the State Fund made a lump-sum payment of $6,500 to Burkland 

and increased its settlement offer to $19,200, including the 

$6,500. 

Burkland refused the offer and filed a petition for 

hearing with the Workers' Compensation Court requesting the 

Court to find and order the following: 

1. That Burkland suffered a compensable injury; 

2. That Burkland has been totally disabled since the 

date of that injury and will remain so until obtaining 

employment; 

3. That Burkland's earning capacity has been impaired, 

resulting in a permanent partial disability; 

4. That the State Fund is liable for Burkland's 

in juries; 

5. That Burkland shall receive a lump-sum settlement; 

and 

6. That Burkland shall receive from the State Fund his 

reasonable attorney's fees and costs. 

Thereafter, on April 15, 1985, Burkland started driving 

truck again, part-time. He was still employed as a truck 

driver and earning approximately $200 a week at the time of 

the hearing on his petition. The hearing consisted primarily 

of testimony from Burkland and rehabilitation and vocational 

counselors as to Burkland's prospects for employment 

comparable in earnings to his previous employment at COP 

Construction. 
At the close of the hearing, both parties were ordered 

to submit proposed findings and conclusions to the lower 

court. From those documents and accompanying briefs, it is 

clear that both parties agree Burkland is entitled to 

benefits of $131.50 per week. The controversy centers around 

the number of weekly payments to which Burkland is entitled. 

Burkland contends he is entitled to the statutory maximum of 

300 weeks. See S$ 39-71-705 and -706, MCA. State Fund 

contends Burkland is entitled to at least 75 weeks of $131.50 

per week benefits. Then, at that point, the State Fund 

requests the right to adjust Burkland's benefit rate to more 

accurately reflect his actual diminution in earnings. 

In addition, Burkland, in his proposed findings and 

conclusions, contends that because the law at that point in 

time allowed the State Fund to reduce any lump-sum 

entitlement to present value, a lump-sum award would serve no 

useful purpose to Burkland and should be denied. 

The Workers ' Compensation ,Judge found that " [t] he 

parties' proposed findings substantially limit the issues 

before the court." He then stated that Burkland is not 

entitled to a lump-sum; that claimant's proper current 

benefit rate is $131.50 per week; and that the maximum 

duration of those benefits is 300 weeks. Having thus 

eliminated several of the issues before him, the Workers' 

Compensation Judge stated the two remaining issues to be: 

1. Is the State Fund entitled to a periodic update in 

Burkland's income status so that the State Fund may determine 

whether an adjustment of claimant's benefit rate is 

appropriate? 

2. Is Burkland entitled to attorney's fees and costs? 

In his order, the Workers' Compensation Judge granted 

the State Fund leave to petition the court one year after the 
date of trial for a review of claimant's earnings and awarded. 

Burkland attorney's fees and costs. The State Fund 

petitioned for rehearing on the issue of attorney's fees and 

costs. Upon review, the judge reversed his earlier decision 

and refused to grant attorney's fees and costs to Burkland. 

The sole issue on appeal is whether Burkland is entitled 

to attorney's fees under S 39-71-612, MCA. That section 

states in pertinent part: 

Costs and attorneys' fees that may be assessed 

against an employer or insurer - by workers' 

compensation judge. (1) If an employer or insurer 

pays or tenders payment of compensation under 

chapter 71 or 72 of this title but controversy 

relates to the amount of compensation due, the case 

is brought before the workers ' compensation judge 

for adjudication of the controversy, and the award 

granted by the judge is greater than the amount 

paid or tendered by the employer or insurer, a 

reasonable attorney's fee as established by the 

workers' compensation judge if the case has gone to 

a hearing may be awarded by the judge in addition 

to the amount of compensation. 

Burkland contends that the sum awarded him by the court, 

$39,450 ($131.50 x 300 weeks), exceeds the compromise 

settlement offer of $19,200 made by the State Fund prior to 

trial. Therefore, "the award granted by t.he judge is greater 

than the amount . . . tendered by the . . . insurer" and he 

is entitled to attorney's fees. 

The State Fund contends, on the other hand, that the 

$19,200 was an offer for a lump-sum settlement made in 

response to Burkland's initial request for a lump-sum payment 

of $45,000. Because Burkland's request for a lump-sum 

settlement was dropped, the award granted by the judge h3.d 

nothing to do with the original lump-sum settlement offer. 

Claimant walked out of court with nothing more than with what 

he had walked in, $131.50 a week for a maximum of 300 weeks. 

Because Rurkland's award was not greater than what the State 

Fund had previously paid, there is no ground for an award of 
attorney's fees. The Workers' Compensation Judge agreed with 

the State Fund, as do we. 

We find Burkland's argument that the pre-trial 

settlement offer by the State Fund was not one for a lump-sum 

payment to be without merit. Burkland himself started the 

pre-trial settlement negotiations because he wished to 

purchase his own truck and/or trailer and become an 

independent truck driver. The reasons proferred by Burkland 

for the lump-sum payment are identical to the statutory 

purpose of lump-sum payments, to make more probable 

claimant's ability to sustain himself. See $ 39-71-741(2), 

MCA. In addition, Burkland's first letter to the State Fund 

refers to the settlement as a lump-sum payment. The State 

Fund termed its offer a "compromise settlement," because it 

was offered in lieu of going to trial. It was still a lumpsum settlement, however, as opposed to a structured 

settlement. 

Section 39-71-612, MCA, governs the award of attorney's 

fees when the claimant prevails in a hearing where the issue 

centers around a lump-sum settlement. Polich v. Whalen's 

O.K. Tire Warehouse (Mont. 1981), 634 P.2d 1162, 38 St.Rep. 

1572. However, there is no controversy with respect to a 

lump-sum payment as Burkland withdrew his request for one. 

The award granted Burkland by the Workers' Compensation Judge 

is no greater than the weekly benefits paid to Eurkland prior 

to the hearing. There is no basis for an award of attorney's 

fees to Burkland. 

The decision of the lower court is affirmed. 
We concur: