No. 93-286

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

TIMOTHY LUND,

Petitioner and Respondent,

-vsSTATE COMPENSATION MUTUAL INSURANCE

FUND/GARDEN CITY PLUMBING AND HEATING, INC.,

Defendant, Employer and Appellant.

APPEAL FROM: Workers' Compensation Court of the State of Montana

The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Oliver Goe; Browning, Kaleczyc, Berry & Hoven,

Helena, Montana

For Respondent:

Rex Palmer, Attorney at Law, Missoula, Montana

Submitted on Briefs: January 13, 1994

Filed: FEB I.1 RM

&l

CLERK OF

STATE

Decided: February 11, 1294

Cl&k
justice Karla M. Gray delivered the Opinion of the Court.

The issue before us is whether the Workers' Compensation Court

erred in concluding that, pursuant to § 39-71-709, MCA (1985),

claimant could withdraw his election to proceed under 5 39-71-703,

MCA (1985), and seek benefits under §§ 39-71-705 through 39-71-708,

MCA (1985). We hold that the court did not err and, therefore,

affirm its grant of claimant's motion for summary judgment.

The relevant facts are uncontested. Claimant Timothy Lund

(Lund) was employed by Garden City Plumbing and Heating, Inc.

(Garden City) on July 8, 1986, when he was injured in the course

and scope of his employment. Garden City's workers' compensation

carrier, the State Compensation Mutual Insurance Fund (State Fund),

accepted liability for the injury. The parties engaged in

litigation concerning the injury; that litigation ended in 1990

with a determination by the Workers' Compensation Court that Lund

was entitled to receive 500 weeks of permanent partial disability

benefits pursuant to 5 39-71-703, MCA (1985), at a weekly rate of

$13.34. The State Fund paid benefits pursuant to the court's

order. The parties did not enter into a settlement or release of

the claim.

On September 9, 1992, Lund notified the State Fund that he was

withdrawing his election to proceed under 5 39-71-703, MCA (1985),

and electing to receive benefits under §§ 39-71-705 through 39-71-

708, MCA (1985). He relied on 5 39-71-709, MCA (1985), as

authority for withdrawing his earlier election.

Lund filed a petition for hearing regarding the change of

2
election on December 4, 1992, and the State Fund responded. Both

parties subsequently moved for summary judgment. The Workers'

Compensation Court granted Lund's motion for summary judgment and

denied the State Fund's motion. The State Fund appeals.

Our standard in reviewing a grant of summary judgment is the

same as that used initially by the trial court under Rule 56,

M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431,

849 P.2d 212, 214: We determine whether there is an absence of

genuine issues of material fact and whether the moving party is

entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

As noted above, the facts are not disputed here: each party

asserted entitlement to judgment as a matter of law. The Workers'

Compensation Court concluded that § 39-71-709, MCA (1985),

authorized Lund to withdraw his election at any time and, on that

basis, granted his motion for summary judgment. We review a

court's legal conclusion to determine whether it is correct.

Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803

P.2d 601, 603.

We begin by summarizing the 1985 version of Montana's Workers'

Compensation Act, insofar as it is relevant here. Briefly stated,

5 39-71-709(l), MCA (1985), permits a claimant to "receive

compensation under 39-71-703 or indemnity benefits under 39-71-705

through 39-71-708." The tlcompensation*' available under § 39-71-

703, MCA (1985), is the weekly permanent partial disability benefit

based on an "actual diminution in the worker's earning capacity

measured in dollars[:ll' the disability benefit is available for a

3
maximum of 500 weeks. The benefit available pursuant to §§ 39-71-

705 through 39-71-708, MCA (1985), purports to indemnify a claimant

for possible loss of future earning capacity resulting from

injuries to specified body members. Hartman v. Staley Continental

(1989) r 236 Mont. 141, 145, 768 P.2d 1380, 1383. In the usual

case, a claimant elects to seek one or the other type of benefit

and proceeds only under that election.

Here, Lund successfully sought permanent partial disability

benefits pursuant to § 39-71-703, MCA (1985), in the first

proceeding. He was awarded, and received, disability benefits

based on his actual loss of earning capacity for the maximum 500

weeks allowed by statute. See 5 39-71-703, MCA (1985). His actual

wage loss was 5OC an hour, for a weekly rate under § 39-71-703(l),

MCA (1985), of $13.34. He subsequently withdrew his election to

proceed under § 39-71-703, MCA (1985), and filed a petition to seek

indemnity benefits under 5s 39-71-705 through 39-71-708, MCA

(1985). Pursuant to those statutes, indemnity benefits to which

Lund might establish entitlement would be paid at the weekly rate

provided in § 39-71-703, MCA (1985), for a maximum of 500 weeks.

See 55 39-71-705 through 39-71-708, MCA (1985). That rate

apparently may be $149.50 per week. The Workers' Compensation

Court concluded that § 39-71-709, MCA (1985), authorizes the

withdrawal of Lund's initial election. The State Fund asserts

error.

The State Fund's argument is that a claimant who elects to

seek permanent partial disability benefits under § 39-71-703, MCA

4
(1985), and who receives the statutory maximum of 500 weeks of such

benefits, cannot thereafter withdraw the initial election and seek

entitlement to benefits under §§ 39-71-705 through 39-71-708, MCA

(1985). We disagree.

Section 39-71-709(3), MCA (1985), provides in pertinent part

that "[a] worker who has elected to proceed under 39-71-703 may

withdraw his election at any time and is entitled to receive

indemnity benefits under 39-71-705 through 39-71-708 . a . ." The

role of the courts in interpreting statutes is to "declare what is

in terms or in substance contained therein, not to insert what has

been omitted or to omit what has been inserted." Section l-Z-101,

MCA. Moreover,

[t]he rules of statutory construction require the

language of a statute to be construed according to its

plain meaning. If the language is clear and unambiguous,

no further interpretation is required.

GBN, Inc. v. Dep't of Revenue (1991), 249 Mont. 261, 265, 815 P.2d.

595, 597.

Lund's right to withdraw his original election and proceed

under SF\ 39-71-705 through 39-71-708, MCA (1985), is controlled by

the language contained in $j 39-71-709(3), MCA (1985). That statute

specifically authorizes a claimant to withdraw a § 39-71-703, MCA

(1985) r election at any time and seek entitlement to indemnity

benefits. Section 39-71-709, MCA (1985), contains no time

limitation within which a withdrawal of election must be made: nor

do any other applicable statutes contain such time limitations.

The statute clearly contemplates and authorizes circumstances such

as those before us here. No interpretation is needed.

5
In the face of such clarity, the State Fund's efforts to rely

on time limitations for withdrawing an election--based on either

the procedural status of the original proceeding or the extent to

which benefits have been paid pursuant to order of the court in

that proceeding--are unwarranted. The State Fund's arguments in

this regard amount to a request that this Court insert into 5 39-

71-709, MCA (1985), words not contained therein so as to limit the

clear statutory rights provided to claimants by the Montana

legislature. Such an insertion would be inconsistent with the

language of the statute; indeed, it would render that language a

nullity.

The State Fund contends, however, that allowing Lund to

withdraw his election and seek indemnity benefits, may result in

Lund receiving 1000 weeks of benefits, rather than the statutory

maximum of 500 weeks contained in 5 39-71-703(2), MCA. We agree

that Lund already has been awarded the maximum 500 weeks of

permanent partial disability benefits authorized by § 39-71-703,

MCA (1985). However, Lund is not seeking additional weeks of

disability benefits based on the "actual loss of earning capacity"

criterion in 5 39-71-703, MCA (1985). He seeks, instead, indemnity

benefits under $j§ 39-71-705 through 39-71-708, MCA (1985). An

award of such indemnity benefits would not extend the number of

weeks of § 39-71-703, MCA (1985), benefits received by Lund past

the statutory maximum; it merely would result in a separate number

of weeks of indemnity benefits under §§ 39-71-705 through 39-71-

708, MCA (1985), at a higher weekly rate than Lund received in the

6
previous litigation.

The State Fund also argues that allowing Lund to withdraw the

earlier election and seek indemnity benefits contravenes the

prohibition contained in § 39-71-709(3), MCA (1985), against a

"greater benefit" in the event of such a withdrawal. The statute

does not support the State Fund's position.

The portion of § 39-71-709(3), MCA (1985), relied on by the

State Fund provides that in the event of a withdrawal of election,

a worker "shall not be entitled to a greater benefit, including

compensation paid under 39-71-703, than he would have received if

he had proceeded exclusively under 39-71-705 through 39-71-708."

The clear meaning of this language is that a claimant's total

benefits cannot exceed the benefits available had the claimant

proceeded under §§ 39-71-705 through 39-71-708, MCA (1985),

originally. In other words, the claimant cannot stack subsequent

indemnity benefits onto earlier disability benefits in order to

receive a double recovery. The maximum amount to which a claimant

is entitled is that available under the indemnity statutes. Once

the Workers' Compensation Court determines the amount of indemnity

benefits to which a claimantis entitled under §§ 39-71-705 through

39-71-708, MCA (1985), any amount previously received as disability

compensation or benefits under 5 39-71-703, MCA (1985), must be

offset from that total. When the subtraction is performed, a

claimant does not receive a "greater benefit" by receiving the

indemnity benefits he would have received had he proceeded

originally and exclusively under §§ 39-71-705 through 39-71-708,

7
MCA (1985).

The State Fund's final argument is that principles of res

iudicata or collateral estoppel apply because Lund's entitlement to

permanent partial disability benefits was finally decided in the

prior litigation. We agree that Lund's entitlement to permanent

partial disability benefits under § 39-71-703, MCA (1985), was

finally decided. However, as discussed above, his entitlement to

indemnity benefits is a different issue based on different

statutory criteria. Lund's entitlement to indemnity benefits was

neither raised nor decided in the previous litigation.

In reality, the State Fund concedes the collateral estoppel

argument by recognizing that the identical issue raised here--that

is, Lund's entitlement to indemnity benefits--was not litigated in

the earlier case. One of the elements required for application of

collateral estoppel, of course, is that the issue has been decided

in a prior adjudication and is identical to the one presented.

Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197.

That element not being met here, collateral estoppel is not

applicable.

With regard to res judicata, the State Fund asserts that Lund

could have pursued his entitlement to indemnity benefits in the

prior litigation, but chose not to do so. On that basis, it

contends that res iudicata applies to prevent another trial on the

issue, relying on Martelli v. Anaconda-Deer Lodge County (1993),

258 Mont. 166, 852 P.2d 579; and Beck v. Flathead County (1989),

240 Mont. 128, 783 P.2d 383.

8
With regard to Martelli, we note that it involved collateral

estoppel, not res judicata. In addition, both the workers'

compensation statutes and the facts at issue in that case are

distinguishable from those before us here. Beck also is

inapposite. In Beck -, the defendants failed to litigate an issue

during the first appeal, and we concluded that= iudicata applied

to bar them from arguing it during the second appeal. Beck, 783

P.2d at 386.

On the merits of this argument, we do not disagree with the

State Fund about the importance of the basic proposition underlying

D% judicata--that a party should not be able to relitigate a

matter the party has already an onportunity to litigate. &

Brault v. Smith (1984), 209 Mont. 21, 25, 679 P.2d 236, 238. Nor

do we disagree that Lund had the opportunity to assert entitlement

to indemnity benefits in the prior litigation: indeed, the record

reflects that he affirmatively chose not to do so. Res iudicata is

a court-made rule of law, however, the purpose of which is to

provide a final resolution of legal controversies. Brault, 679

P.2d at 238. Given the clarity and specificity of the legislative

authorization contained in § 39-71-709, MCA (1985), for withdrawal

of an election at anv time, we conclude that it would be

inappropriate to apply the judicial res judicata rule to bar Lund

from seeking indemnity benefits as specifically allowed by statute.

We conclude that the Workers' Compensation Court correctly

determined that Lund may withdraw his earlier election to proceed

under 5 39-71-703, MCA (1985), and proceed pursuant to 55 39-71-705

9
through 39-71-708, MCA (1985). Therefore, we hold that the court

did not err in granting Lund's motion for summary judgment.

Affirmed.

10