No. 13498 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

197 7 

WILLARD BRURUD, 

Claimant and Respondent, 

JUDGE MOVING & STORAGE CO., INC., 

Employer and TRANSPORTATION INSURANCE 

COMPANY, 

Insurer and Appellant. 

Appeal from: Worker's Comp Court, 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

H. Dale Schwanke argued, Great Falls, Montana 

For Respondent : 

Hoyt and Bottomly, Great Falls, Montana 

John C. Hoyt argued, Great Falls, Montana 

- - 

Submitted: March 15, 1977 

Filed : TbPLnL >- . 

c&d 

Clerk 
Honorable Peter G. Meloy, District Judge, sitting in place of 

Mr. Chief Justice Paul G. Hatfield, delivered the Opinion of 

the Court. 

Respondent was injured in an industrial accident and 

filed a claim for compensation with the Montana Workers' 

Compensation Division. Thereafter, a dispute arose between 

respondent and appellants concerning the nature and extent of 

respondent's resulting disability. A hearing was held before 

a division hearing examiner on July 25, 1974. On November 26, 

1974, an order awarding compensation was entered by the administrator of the division, which order awarded respondent permanent total disability benefits and a lump sum advance of $7,500. 

The order was duly appealed and the award affirmed by the Workers' 

Compensation Court, by order dated May 25, 1976. This appeal is 

taken therefrom. 

The Workers' Compensation Court's review of the Workers' 

Compensation Division is limited by section 82-4216, R.C.M. 1947. 

That section admonishes the review court that it: 

" * * * shall not substitute its judgment for 

that of the agency as to the weight of the 

evidence on questions of fact. * * * The Court 

may reverse or modify the decision if substantial rights of the appellant have been prejudiced 

because the administrative findings, inferences, 

conclusions or decisions are: 

"(a) in violation of constitutional or statutory 

provisions; 

"(b) in excess of the statutory authority of the 

agency; 

"(c) made upon unlawful procedure; 

"(d) affected by other error of law; 

"(e) clearly erroneous in view of the reliable, 

probative and substantial evidence on the whole 

record; 

"(f) arbitrary or capricious or characterized by 

abuse of discretion or clearly unwarranted exercise of discretion; or 

"(g) because findings of fact, upon issues essential to the decision, were not made although 

requested." 
Montana has adopted the "clearly erroneous" test and 

while no Montana cases have defined the term it appears that 

the citation of petitioner in the case of United States v. 

United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L ed 

746, 766, is a proper definition. Therein it stated: 

"A finding is 'clearly erroneous' when although 

there is evidence to support it, the reviewing 

court on the entire evidence is left with the 

definite and firm conviction that a mistake has 

been committed." 

The appellants contend the Workers1 Compensation Court erred 

in affirming the Workers' Compensation Division in the following particulars: 

(1) The evidence before the Division was insufficient 

to support a finding of permanent total disability. 

(2) The Division could not consider the medical reports 

in the Workers1 Compensation file. 

(3) The Workers1 Compensation Court erred in not allowing appellant insurance company to present additional evidence. 

(4) The Division had no authority to order an advance 

to the workman. 

We will discuss these issues within the limitations of 

section 82-4216. 

(1) It is true that the only evidence brought out at 

the hearing as to the nature and extent of respondent's disability was the testimony of the respondent himself. This testimony 

brought out that respondent, who was age 58 at the time of the 

injury and reached age 62 on January 13, 1977, had an entire 

adult work history of heavy labor. He has a high school education and has since worked about 25 years as a meat cutter and 

about 15 years as a laborer in the moving and storage business. 

There was no medical testimony presented at the hearing. 

According to the memorandum accompanying the Division's findings 
of fact and conclusions of law, both sides seemed satisfied 

to rely on the medical reports, one submitted by Dr. Popnoe, 

the treating physician, the other by Dr. Forbeck, who examined 

the claimant, apparently at the request of defendant insurance 

carrier. 

Dr. Popnoe wrote on April 10, 1974 in a report addressed 

to the agent of appellant: 

"I feel that he is too old for fusion. He is 

not trained in any type of work other than 

heavy work. He conceivably might do very light 

work not requiring any heavy lifting, pushing or 

pulling, possibly as a watchman or something 

similar. It is my feeling that his permanent 

partial disability considering all things should 

be approximately 60-70%." 

Dr. Forbeck wrote on June 5, 1974 in a report addressed 

to the appellant with a copy to an agent of appellant: 

" * * * It is hoped that with the passage of 

time and perhaps a continuation of conservative 

measures of therapy, his present difficulty will 

gradually improve, but probably his prognosis in 

this regard is rather poor. Under present circumstances, I feel that a disability rating of sixty 

to seventy-five percent would be fair." 

Appellants could have presented any medical evidence of 

their own at the hearing and did not. Based upon what the 

hearing examiner had at his disposal, the contents of the Division file, the record of the hearing, the medical reports, the 

age, education and experience of respondent, he had sufficient 

evidence to support his finding of fact No. 11 that respondent 

was permanently totally disabled as defined in section 92-441, 

R.C.M. 1947. 

Appellants next contend that before the Division could 

conclude that respondent was entitled to permanent total disability benefits, a finding must be made that he made a reasonable effort to find regular employment but that no reasonable 

prospect existed. Appellants therefore contend that the Divisions findings of fact do not support its conclusions of law 
and its order awarding compensation. 

Nowhere in section 92-441,which defines permanent 

total disability, does it require such a finding. The statute 

does require that he have no reasonable prospect of finding 

regular employment of any kind in the normal labor market; but 

it does not set out that he must have made a reasonable effort 

to secure such employment. In some cases, this Court can foresee the futility of such an effort. In this case, the Division 

in its finding of fact No. 11, clearly saw such a situation. 

In view of the medical reports, the record of the hearings, 

and the age, education and work experience of respondent, the 

Division found no reasonable prospect of respondent finding 

regular employment in the labor market and because of that 

found him to be permanently totally disabled. This finding 

clearly supports the Division's conclusion of law and order 

awarding compensation. 

(2) The medical reports were unsworn and were not 

offered in evidence. Appellants contend that for the Division 

to have considered these reports denied appellants their right 

to cross-examine the preparers and to rebut the evidence contained therein. 

The contents of the reports in question, one by Dr. 

Popnoe, the treating physician, and one by Dr. Forbeck, who 

apparently examined claimant at the request of the insurance 

carrier, were known by both parties and were a part of the 

Division's file in this case. At the hearing the reports and 

their contents were discussed in part but apparently were not 

entered into evidence. No other medical evidence was produced 

at the hearing. The hearing examiner had been given to understand that "both sides seemed satisfied to rely on the two 

medical reports". This was stated in the memorandum accompanying the order awarding compensation. 
It was not a reversible abuse of discretion for the 

Division to consider the contents of reports which were a part 

of its file in the case, the contents of both which were known 

to the parties at the time of the hearing, and which reports 

were discussed at the hearing and not challenged, objected to 

or rebutted in any manner at the hearing. 

(3) Appellants contend that the Division erred by denying them leave to present additional evidence pertinent to the 

award of permanent total disability benefits. The additional 

evidence concerned respondent's disability as well as evidence 

concerning the retroactive Social Security disability benefits 

received by respondent. The statute applicable to such an 

attempt to present additional evidence is section 82-4216 (5), 

R.C.M. 1947. That section requires a showing sufficient to 

satisfy the Court that the additional evidence is material and 

that there were good reasons for failure to present it in the 

proceeding before the agency. The court of review was not 

satisfied with either the materiality or the additional evidence 

of the reason for failure to present it earlier. This Court 

will not substitute its discretion for that of the court of review. 

(4) Appellant contends that the Workers' Compensation 

Court erred in affirming the order awarding compensation to the 

extent it awarded respondent a $7,500 lump sum advance. They 

contend, first, that the Division lacked jurisdiction to order 

payment of any advance and, second, that the evidence did not 

support the amount of the advance in any event. Section 92- 

715, R.C.M. 1947, which authorizes the conversion of biweekly 

payments to a lump sum settlement in certain instances, provides 

in part: 

"Such conversion can only be made upon the 

written application of the injured worker * * *." 
Since respondent did not apply in writing, appellants contend 

the Division lacked jurisdiction to grant the lump sum advance. 

It should be understood however, that the award was an "advance" 

as distinguished from a "lump sum settlement" wherein there is 

a calculation of the present worth of the deferred payments. 

Section 92-715 is not applicable to a "lump sum advance." 

Under the circumstances here the Division did not abuse 

its discretion in ordering the advance. Compare Sullivan v. 

Anselmo Mining Corp., 82 Mont. 543, 268 P. 495. 

Appellants further contend that even if the Division 

did have jurisdiction to grant the lump sum advance, that the 

evidence did not support an advance in the amount of $7,500 

which the Division granted. The burden, they claim, is clearly 

on respondent to justify the conversion and the amount thereof. 

This burden, according to appellants, was not met. At the hearing, respondent testified to debts of "around $6,000.00" but 

he was not certain to whom they were owed or in what amounts. 

At a later date, a list of amounts owed and to whom owed was 

provided. This list was unsworn and totalled $7,211. Appellants 

claim this unsworn list certainly does not justify the lump sum 

award of $7,500. 

The Division, in finding of fact No. 16, found that the 

contents of the file and record reveal that by a preponderance 

of the evidence, a lump sum advance to be applied against his 

final award would be in the best interest of respondent and 

4 

the public. See ~aukait&s v. Sisters of Charity, 135 Mont. 469, 

342 P.2d 752. In finding of fact No. 12 the Division found 

respondent testified at the hearing that his accumulated obligations had become an impossible burden upon him and that he 

could not meet his financial obligations, pasf: a.nd current, 

with the amount he received in Workers' Compensation benefits. 
In finding of fact No. 17, it found that the outstanding indebtedness of respondent was in the amount of $7,214, which 

amount does not include fees owed to his attorney. The Division 

therefore concluded in conclusion of law No. 3 to award claimant 

a lump sum advance in the amount of $7,500. 

This Court does find the evidence sufficient to justify 

the award of $7,500. 

The findings of the Division are not clearly erroneous 

under section 82-4216, R.C.M. 1947. 

The order of the Workers' mpensati Court is affirmed. 

--- ---------------- 

on. Peter G. Me oy, strict Judge, 

sitting in plac r. Chief Justice Paul G. Ha .' 

/J 

We concrir: 

,"