NO. 87-324 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

KENNETH K. KOMEOTIS, 

Claimant and Appellant, 

-vsWILLIAMSON FENCING, 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: 

Bottomly Law Offices; Joe Bottomly, Great Falls, 

Montana 

For Respondent : 

Marra, Wenz, Johnson & Hopkins; Thomas A. Marra, 

Great Falls, Montana 

Submitted on Briefs: March 18, 1988 

Decided: June 16, 1988 

Filed: Uurr 1 6 1988 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This case appears before us for the second time. The 

first appeal involved the Workers' Compensation Court's 

improper application of 5 39-71-741, MCA, as amended in 1985. 

This Court reversed the lower court in the former appeal 

holding that the statute could not be applied retroactively. 

Komeotis v. Williamson Fencing (Mont. 1987), 736 P.2d 93, 44 

St.Rep. 298. The case was remanded for a determination of 

the lump sum issue applying the law as it existed at the time 

of the injury. Komeotis, 736 P.2d at 93. 

On remand the Workers' Compensation Court applied the 

correct law and denied the lump sum request as well as the 

claimant's request for attorney fees on the issue of 

disability. The claimant appeals this decision. We affirm. 

The issues may be stated as follows: 

(1) Did the Workers' Compensation Court err in denying 

the claimant's request for a partial conversion of his 

benefits to a lump sum? 

(2) Did the Workers' Compensation Court err in denying 

the claimant's request for attorney fees for prevailing on 

the issue of disability? 

The claimant, Mr. Komeotis, worked for Williamson 

Fencing for thirteen years before degenerative arthritis in 

his elbows rendered him incapable of performj-ng his former 

job duties. The State Compensation Insurance Fund (Fund) 

provided temporary total disability benefits to Mr. Komeotis, 

but contested conversion of the entitlement to permanent 
disability benefits. Mr. Komeotis petitioned for 

determination of the disability issue by the Workers' 

Compensation Court. Prior to adjudication of the disability 

issue the Fund conceded liability. 

Mr. Komeotis also petitioned for partial conversion of 

weekly disability benefits to a lump sum of $120,000. Mr. 

Komeotis planned to spend $110,000 of that amount for the 

purchase and operation of rental property, and the remaining 

$10,000 to cover medical expenses for needed surgery, and for 

the purchase of a reliable vehicle. The petition also 

requested attorney fees. These issues were heard before the 

hearings examiner. 

Expert testimony taken at the hearing revealed that Mr. 

Komeotis's plan to buy rental property was financially 

feasible. Experts also testified that having responsibility 

for the rental property would lessen the severe depression 

Mr. Komeotis had begun to experience since the onset of his 

disability. However, expert testimony also revealed that Mr. 

Komeotis's physical and educational deficits would hamper his 

ability to care for the rentals, and that other vocational 

options might ease his depression. The impact of Mr. 

Komeotis's vocational problems was lessened by testimony 

showing that friends and family would help him manage the 

rental enterprise. 

After the hearing the Workers' Compensation Court 

reviewed the transcript, exhibits, and depositions. The 

lower court also considered the parties' proposed Findings of 

Fact and Conclusions of Law and supporting briefs. The lower 

court then ruled that Mr. Komeotis was entitled to a lump sum 

of at least $10,000 to have surgery and to purchase a 

vehicle, but denied Mr. Komeotis's lump sum request of 

$110,000 for the purchase and operation of the rental 

property. The lower court also granted attorney fees for the 
resolution of the $10,000 lump sum, but refused attorney fees 

for resolution of the disability issue. 

ISSUE I. 

Mr. Komeotis contends that the Workers' Compensation 

Court erred in its findings on the severity of his 

depression. Mr. Komeotis also contends that the lower court 

misapplied the best interest test to the financial facts of 

the case. 

First, in regard to Mr. Komeotis's depression, the 

Workers' Compensation Court found that: 

Both Dr. Wagner and Jeff Baker testified as to 

claimant's depression and need for some sort of 

constructive outlet, reasoning that this need stems 

from claimant's strong work ethic and deep-rooted 

sense that in order to "feel good about himself as 

a man" he needs to be the primary bread winner in 

his family. 

From this finding the lower court concluded: 

The claimant here has not presented any 

probative evidence of age or health reasons 

sufficient to override the preference for periodic 

payments. Testimony was presented as to claimant's 

depression and need to maintain his "manhood" by 

again becoming the primary breadwinner in his 

family. Despite Mr. Baker's attempt to 

characterize this depression as "suicidal," the 

Court found no evidence that this depression 

reached proportions beyond what any normal 

hard-working person would feel when they are no 

longer able to provide for themselves by their own 

efforts. . . . [C] ounseling and rehabilitation would 

seem more appropriate [to alleviate the depression] 

than simply setting claimant up as an apartment 

house owner. 

Mr. Komeotis contends that we should reverse because the 

lower court's characterization of his depression is not 

supported by the record. 
The essential conclusion here is that the evidence 

presented was insufficient to override the preference for 

periodic payments. See Polich v. Whalen's O.K. Tire (Mont. 

1981), 634 P.2d 1162, 1165, 38 St.Rep. 1572, 1575. A review 

of the record reveals that the lower court may have 

understated the severity of the depression. However, 

substantial evidence supports the lower court's finding that 

rehabilitation and counseling could provide Mr. Komeotis with 

the type of activity which would help to alleviate his 

depression. Given this finding, and the evidence of Mr. 

Komeotis's vocational deficits, we hold that the Workers' 

Compensation Court acted within its discretion by concluding 

that Mr. Komeotis failed to overcome the presumption for 

periodic payments. 

We also hold that the lower court acted within its 

discretion by refusing to follow the results reached in 

Polich and Legowik v. Montgomery Ward (1971) , 157 Mont. 436, 

486 P.2d 867, cases where this Court affirmed the decision to 

grant lump sum benefits for health reasons. Unlike Legowik 

and Polich, we are asked here to reverse the finder of fact 

on a lump sum issue even though the lower court is more 

favorably situated than this Court to familiarize itself with 

the circumstances surrounding the applicant, to consider his 

or her needs, and the results which probably will follow 

action granting or denying the application. See Polich, 634 

P.2d at 1164. Furthermore, in addition to the immediate 

health needs of the claimant, the lower court must consider 

the best interests of the claimant generally, as well as the 

best interests of his family, and the public. Utick v. Utick 

(1979), 181 Mont. 351, 355, 593 P.2d 739, 741. In weighing 

these interests, the presumption favors periodic benefits. 

Utick, 593 P.2d at 741. 
In this case, other factors weighed against granting the 

lump sum request. Thus, we hold that the lower court acted 

within its discretion by refusing to follow Legowik, and 

Polich. We also hold Utick inapplicable as that case is 

limited to the particular cirmustances which appear therein, 

and we affirm as to this contention in issue 1. 

Mr. Komeotis also argues that the lower court 

misinterpreted the dictates of the financial best interest 

test. Specifically, Mr. Komeotis argues that the evid.ence he 

presented disclosing that inflation will lower the value of 

his benefits in the future should have been accorded more 

weight. 

The lower court's decision to not grant the lump sum 

because inflation would cause a future "pressing need" is 

consistent with this Court's previous dispositions where 

similar arguments were made. See Relton v. Carlson Transport 

(Mont. 1986), 714 P.2d 148, 43 St.Rep. 286; LaVe v. School 

District No. 2 (Mont. 1986), 713 P.2d 546, 43 St.Rep. 165. 

Mr. Komeotis asserts that where a sound business 

praposal is coupled with evidence demonstrating health 

benefits from a lump sum conversion, the rule against 

inflation as justification for granting a lump sum does not 

apply However, in addition to finding the lack of a 

pressing financial need, the lower court considered the 

claimant's physical and mental disabilities before concluding 

that the rationale from Belton and Lave provided authority 

for rejecting the lump sum request. Thus, we are convinced 

the lower court acted within its discretion by refusing to 

distinguish Belton and LaVe, and the balance of issue 1 is 

affirmed. 
ISSUE 11. 

Mr. Komeotis contends that the lower court erred by not 

granting his request for attorney fees for resolution of the 

disability issue. The lower court found that this Court's 

previous decisions in Lasar and Yearout controlled this issue 

because liability for permanent disability was conceded here 

prior to trial. See Yearout v. Rainbow Painting (Mont. 

1986), 719 P.2d 1258, 43 St.Rep. 1063; Lasar v. Oftedal & 

Sons (Mont. 1986), 721 P.2d 352, 43 St.Rep. 1239. We agree 

with the lower court that there must be an issue on 

disability benefits later judged compensable for an award on 

such benefits pursuant to S 39-71-612, MCA. Lasar, 721 P.2d 

at 354. 

However, Mr. Komeotis contends that the rationale from 

Krause v. Sears Roebuck (1982), 197 Mont. 102, 641 p.2d 458, 

applies and distinguishes the instant case from Lasar and 

Yearout. The Fund responds that Krause should be 

distinguished from the instant case because it was only 

shortly before the hearing that discovery revealed the facts 

which compelled the Fund to concede the disability issue, and 

Mr. Komeotis was not required to submit proof on the 

disability issue. We agree and affirm the lower court's 

application of Lasar. Thus, both issues are affirmed. 

We concur: H 

ief Justice 
Justice 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent from the majority's conclusion that the 

District Court did not abuse its discretion when refusing to 

award partial lump sum payments to Mr. Komeotis. While 

periodic payments are favored over lump sum payments when 

granting Workers' Compensation benefits, this Court expressly 

recognizes that lump sum benefits should be awarded without 

hesitancy when it is in the claimant's best interest. See, 

e.g., Polich v. Whalen's O.K. Tire Warehouse (~ont. 1981), 

634 P.2d 1162, 1164, 38 St.Rep. 1572, 1574; Willoughby v. 

Arthur G. McKee & Co. (1980), 187 Mont. 253, 257, 609 P.2d 

700, 702; Utick v. Utick (1979), 181 Mont. 351, 355, 593 P.2d 

739, 741. 

The record clearly indicates, through the testimony of 

experts, that a lump sum payment is in Mr. Komeotis's best 

interest. Specifically, these expert witnesses testified 

that Mr. Komeotis was severely depressed as a result of his 

inability to work and to provide a living for his family. 

When considering Mr. Komeotis's background and his previous 

rehabilitative experiences, these experts testified that the 

plan for Mr. Komeotis to purchase rental property would 

greatly help to relieve his severe depression. 

The majority recognizes that the lower court may have 

understated the severity of Mr. I<omeotisls depression, but 

claims the record contains substantial evidence supporting 

the lower court's finding that "counseling and rehabilitation 

would seem more appropriate than simply setting claimant up 

as an apartment house owner." Komeotis v. William Fencing 

and State Compensation Insurance Fund, WCC Docket No. 

8502-2934, at 26 (July 30, 1987). I disagree. 
The record contains little or no evidence that 

rehabilitation and counseling alone will alleviate Mr. 

Komeotis's severe depression. When asked about the benefits 

of counseling for Mr. Komeotis, Dr. Wagner, who holds a Ph.D. 

in clinical psychology, testified that "counseling usually 

occurs once a week, an hour once a week or so, and it would 

be difficult for him to overcome the depression. You know, 

once a week he'd come in and then the rest of the week he'd 

sort of slip . . . . " In addition, Dr. Baker, who holds a 

Ph.D. in counseling psychology, testified "that we had to get 

some kind of vocational direction for this person, or we 

could possibly have suicide on our hands, at the 

worse . . . . " Dr. Baker further testified that in light of 

Mr. Komeotis's condition and background, a self-employment 

venture was the only possible vocational plan available to 

him. 

On the other hand, no solid evidence can be found in the 

record to support the majority's conclusion that substantial 

evidence exists to support the lower court's findings that 

counseling treatments alone will alleviate Mr. Komeotis's 

severe depression. The record does contain, however, 

substantial credible evidence that the claimant's family and 

the public, will be better served if claimant is granted a 

lump sum payment that will let him take part in a program 

recommended by experts who examined him and offered the only 

real evidence of what can be done to help him fight his 

depression. 

In the present situation, the lower court found that the 

apartment building was financially feasible and that Mr. 

Komeotis could "manage and supervise the building and that 

the result would mean more total income to the claimant [Mr. 

Komeotis] than if he merely collected his biweekly 

compensation." Komeotis, WCC Docket No. 8502-2934, at 24. 
The overwhelming evidence found in the record indicates thatMr. Komeotis's severe depression could be alleviated upon 

managing and supervising the apartment building. 

I would reverse and order the lump sum paid so that the 

claimant can get on with rehabilita 

I concur with the foregoing dissent of Mr. Justice William E. 

Hunt, Sr. 

~AL~Justice