No. 86-310 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

LAVERNE I. LARSON, 

Claimant and Appellant, 

-vsWILLIAM S. CRISSMORE, 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: 

Trieweiler Law Firm; Judith L. Wang argued, Whitefish, 

Montana 

For Respondent: 

Warden, Christiansen, Johnson & Berg; Stephen C. Berg 

argued, Kalispell, Montana 

Submitted: April 9, 1987 

Decided: August 5, 1987 

Filed: 

AUG 5 - 1987 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Laverne I. Larson appeals from a June 3, 1986, denial of 

benefits requested in addition to those granted to him by the 

Workers' Compensation Court between April 15, 1971, and April 

3, 1980. 

We affirm the lower court's decision and remand to 

determine proper rates for the temporary total and permanent 

disability benefits. We order payment of temporary total 

disability benefits not to exceed 300 weeks in addition to 

the permanent disability benefits to which claimant is 

entitled and as instructed below. 

The issues on appeal are: 

1. Under the 1971 Workers' Compensation laws, was 

claimant entitled to additional temporary total disability 

benefits up to 300 weeks and should this amount have been 

granted in addition to the 500 weeks of permanent disability 

benefits already granted to the claimant? (Emphasis added.) 

2. Did the lower court err when it denied claimant's 

request for a discretionary award by ruling that claimant was 

required to show that he had lost both hands, or both arms, 

or both feet, or both legs, or both eyes? 

3. Was claimant paid incorrectly low disability benefit 

rates and was he entitled to permanent partial or permanent 

total disability benefits? 

In December 1985, the appellant filed a petition for 

hearing with the Workers' Compensation Court. The petition 

generally sought benefits in addition to those paid to the 

appellant from April 15, 1971, through April 3, 1980. A 

hearing was held on March 5, 1986, before the Workers' 

Compensation Court Judge Timothy W. Reardon. Following the 
receipt of post trial briefs and proposed findings and 

conclusions, the court entered its judgment based on its 

findings of fact and conclusions of law, dated June 3, 1986. 

The court's decision denied additional benefits to the 

claimant. This appeal followed. 

At the time of trial, on March 5, 1986, claimant was a 

59 year old married father of 4 children, with one daughter 

still dependent upon him for support. 

Claimant's work history includes railroad work as a 

switch tender, switchman, and road brakeman. He has also 

worked as an oiler, laborer, woods worker, sawmill laborer, 

welder, service station mechanic and attendant and as a heavy 

equipment operator. 

Prior to his accident on April 15, 1971, claimant owned 

his own business, Larson Logging, and he was a healthy and 

active person. His accident occurred when a winch he was 

operating pulled a tree down which landed on his head. His 

injuries required multiple surgeries and treatments. 

Cl.aimantls injuries were primarily to his head and neck as 

well as his back. 

Claimant was diagnosed as having a herniated disk which 

was surgically removed in August 1971. On June 28, 1973, 

cervical fusion was performed and an abnormal disk removed. 

On January 31, 1974, a fusion was performed from his L-4 

vertebrae to his sacrum. 

In 1976, claimant fell off a flat-bed truck after 

loading some equipment onto it. He injured his head and was 

treated at the Veterans1 Administration Hospital in Spokane, 

Washington as an in-patient from September 28 though October 

15, 1976. His main complaint was that he suffered from 

headaches. A brain scan was performed which suggested that 
claimant's headaches were related to the injury to the 

temporal mandibular joint on his right side. 

During the summers of 1983 and 1984, claimant took a job 

as brushcat operator because he needed the income. He could 

take breaks as needed but at the end of the day he would take 

pain pills and soak in a bathtub to ease the pain. In 1985, 

he did not take that position because he was physically 

unable to do so. He has done a few miscellaneous welding and 

other tasks but basically has not worked since 1984. 

Claimant now has a limited ability to move his dorsal 

spine which affects his general mobility. Lower back motion 

and motion in his cervical spine is also less than normal. 

Muscles in his right hand have atrophied and he can not 

reach, grasp with or flatten out his dominant right hand. He 

does not have full use of one of his feet and has no hot or 

cold sensation in his feet. He can sit for about fifteen 

minutes before getting lower back pains. He is no longer a 

very coordinated person and cannot work, fish or hunt. 

In his present physical condition, claimant is 

unemployable. According to the lower court's findings, given 

his age, limited education, work history and multiple major 

surgeries, claimant is totally disabled from competitive 

employment. 

Claimant's Workers' Compensation benefits were 

discontinued on April 3, 1980, after he received 26 weeks of 

temporary total disability benefits at $60 a week and 500 

weeks of permanent partial benefits at $55 per week. 

Claimant currently receives $510 a month from Social Security 

as his only source of income. 

Claimant believes he incorrectly received only 26 weeks 

of temporary total disability benefits and is entitled to 
between 222.56 and 274 additional weeks of temporary benefits 

as well as the maximum number of permanent partial and 

permanent total disability benefit weeks. At a minimum, 

claimant argues he is entitled to 222.56 weeks of temporary 

total disability benefits pursuant to 92-701, R.C.M. 

(1947). This minimum number of weeks is based on a statement 

by Dr. Klassen on February 23, 1975, that claimant would not 

reach maximum healing for an estimated six months. 

With a "liberal construction" mandate claimant argues 

that a different calculation entitles him to a maximum of 300 

weeks of benefits. We agree. This computation is based on 

Dr. Blaisdell's opinion and claimant's testimony concerning 

healing time following spinal injuries. Dr. Blaisdell stated 

the maximum healing would occur between six months and two 

years after the last surgery. Claimant's last lumbar surgery 

was January 31, 1974. 

Claimant contends that the court below concluded that 

claimant reached a maximum healing two years after January 

31, 1975 or on January 31, 1977. Computing the benefit weeks 

from 1971 through 1977, he concludes that they add up to 

302.12 weeks thus entitling him to 300 weeks of temporary 

total disability benefits minus the 26 weeks of temporary 

total disability already paid to him. 

Respondent agrees § 92-701, R.C.M. (1947) limits 

temporary total disability benefits to 300 weeks from the 

date of injury. However, S 92-708 of that code states the 

total period for which compensation may be paid cannot exceed 

500 weeks and that compensation shall run consecutively, not 

concurrently. Respondent contends the lower court did not 

err in applying the black letter of the law and, if anything, 
appellant was actually overpaid and is entitled to no further 

benefits. 

Conflicting testimony exists as to when claimant's 

temporary total disability status actually ceased. An 

examination of the record does not answer that question. We 

hold that the claimant is entitled to temporary total 

disability benefits of up to 300 weeks. This should be 

sufficient to help the Workers' Compensation Court in 

determining the proper amounts due on remand. 

The parties agree that claimant was entitled to some 

temporary disability benefits and some type of permanent 

disability benefits. The problem here is whether claimant 

should have been granted benefits in excess of the 526 weeks 

of benefits he already received. Inclusive in this issue is 

whether claimant's temporary total disability was actually 

only 26 weeks in duration or whether it extended to 300 weeks 

duration (274 plus the 26 he has received) as claimant 

contends; whether he is entitled to the full 500 weeks of 

permanent total disability benefits, and whether he is 

entitled to any amount of permanent partial benefits. 

Section 92-701, R.C.M. (1947) (amended 1969) was the 

applicable statute governing payment of temporary total 

disability benefits in 1971. The statute set out a payment 

schedule based upon the injured worker's wage and number of 

dependents. It states: 

Such compensation shall be paid during 

the period of disability, but for the 

period not exceeding three hundred (300) 

weeks from the date of injury . . . provided that after twenty-six (26) weeks 

of disability such compensation shall be 

decreased by the sum of $5.00 per week 

during the period of disability. 
The purpose of the temporary total disability statute 

was to provide temporary total benefits during the claimant's 

healing period. 

In 1971, the term temporary total disability was not 

specifically defined in the Workers' Compensation Act. It 

was amended in Chap. 23, Laws 1975. The later enacted 

definition has been interpreted to involve a two-pronged 

test. First, a claimant must not have been as far restored 

as the permanent character of his injuries will permit. 

Secondly, the claimant must experience a total loss of wages. 

Wilson v. Sun River Cattle Co. (Mont. 1983), 670 P.2d 931, 40 

St.Rep. 1509. 

Although testimony was presented on claimant's temporary 

total disability period, no finding of fact was made as to 

the actual duration of the healing period. In light of our 

decision on the rest of this issue, we remand this case for a 

determination of the extent of claimant's temporary total 

disability period and note that, in accordance with the 

applicable statute, claimant is allowed up to 300 weeks of 

temporary total disability benefits if he is found eligible. 

This Court recognizes the legitimacy of granting a 

claimant different categories of benefits consecutively as a 

claimant comes to qualify for them. For instance, in Jones 

v. Claridge (1965), 145 Mont. 326, 331, 400 P.2d 888, 890, we 

stated: 

[Wle may now have, under a given set of 

circumstances, an award for temporary 

total disability payments during the 

period wherein the claimant is entirely 

disabled; . . . and an additional award 

(indemnity benefits) for loss of 

prospective future earnings as the result 

of permanent partial disability under 

S 92-709 . . . 
Similarly, in McDanold v. BN Transport, Inc. (Mont. 

1981), 634 P.2d 175, 179, 38 St.Rep. 1466, 1471, we stated: 

Construing the section liberally in favor 

of the injured worker as required under 

former Section 92-838, R.C.M., 1947, now 

Section 39-71-104, M.C.A., we hold that 

the period during which claimant received 

temporary total disability benefits under 

former Section 92-701, was separate from 

and in addition to the period during 

which he would receive benefits under 

92-709, the specific injury "indemnity" 

statute. Therefore, the claimant here 

may not have exceeded his statutory 

benefits, depending upon the extent of 

his injury and the length of his healing 

period. 

In this case the Court is further faced with 

interpreting and reconciling several inconsistent statutes in 

the 1971 code regarding the total number of weeks for which a 

claimant may collect benefits. We note $ 92-708, R.C.M. 

(1947) (amended 1969) provides the total period for which 

compensation may be paid cannot exceed 500 - weeks and that 

compensation shall run consecutively, not concurrently. 

Section 92-701, R.C.M. (1947) (amended 1969) provides that 

temporary total disabilities are limited to - 300 weeks of 

benefits. 

Appellant contends that limiting his benefits to a total 

of 500 weeks is internally inconsistent with the Workers' 

Compensation Act and with existing caselaw including the 

Jones and McDanold cases quoted above. We disagree and find 

$ 92-708, R.C.M. (1947) (amended 1969) controlling. Other 

statutes in 1971 provided for more than 500 weeks of 

benefits. Section 92-702, R.C.M. (1947) (amended 1969), 

provided for an excess of 500 weeks of permanent total 

disabj-lity benefits in cases of hardship, but such exception 
occurs only under the Board's discretion. Section 92-704, 

R.C.M. (1947) (amended 1969), provided for a maximum of 600 

weeks for death benefits. 

In construing a statute, the whole act must be read 

together and where there are several provisions or 

particulars, a construction is, if possible, to be adopted 

that will give effect to it all. Yurkovich v. Industrial 

Accident Board (1957), 132 Mont. 77, 84, 314 P.2d 866, 870. 

Recognizing that under special circumstances, the above 

cited statutes can give a worker more than 500 weeks, we find. 

none here nor did the Board make an exception under its 

statutory discretionary power. Claimant, as previously 

noted, is entitled to no more than 500 weeks of compensation 

under S 92-708, R.C.M. (1947) (amended 1969), totalling 

temporary total disability benefits and permanent partial or 

permanent total benefits. 

The lower court found the plain meaning of the statutes 

clearly acted to deny benefits at a 526 rate week level 

already received by the claimant between 1971 and 1975. 

However, the court went on to consider the possible effect of 

this Court's ruling in McDanold, supra, upon the case. In 

view of the fact that the claimant relied upon McDanold 

before the lower court and continues to rely upon it before 

this Court, we note that there are serious factual 

distinctions between McDanold and the case at bar: (1) as 

the Workers' Compensation Court noted, McDanold is an 

extremity case of 180 weeks which is significantly less than 

the 500 weeks whole-man partial disability entitlement of the 

claimant in this case; (2) the lower court stated that the 

permanent partial determination in McDanold was for a maximum 

benefit period of 180 weeks; (3) in McDanold, although 
construing basically the same statutes relevant to the 

instant case, it does not construe the most important 

statute, S 92-708 which limits benefits to 500 weeks 

regardless of the class of disability. We find McDanold is 

not controlling in the case at bar. 

Here, the interpretation is that claimant was entitled 

to up to 300 weeks of temporary total disability benefits and 

200 weeks of permanent partial or permanent total disability 

benefits. Allowing a combination of the two the claimant is 

limited to the maximum number of weeks of benefits being 500 

weeks. 

Claimant's second issue is whether the lower court erred 

by denying his request for a discretionary award under S 

92-702, R.C.M. (1947) (amended 1969), when it ruled that he 

did not show he had lost both hands, or both arms, or both 

feet, or both legs, or both eyes. He contends the court 

below used this incorrectly strict standard in its refusal to 

grant a discretionary award. 

Under the Act in effect at the time of claimant's 

injury, additional permanent total disability benefits were 

provided for in hardship cases as follows: 

Such compensation shall be paid during 

the period of disability, but for the 

period not exceeding five hundred (500) 

weeks from the date of the injury. 

Provided, that in case of hardship and 

where the Board, in its discretion, deems 

it necessary, the Board may order 

compensation for such further period as 

it decides proper. Such additional 

compensation, if ordered, shall be 

limited to cases of total disability, 

permanent in character resultinq from the 

loss of ----- or the loss of use of both hands, 

or both arms, or both feet, or both leas, d. 

or both eyes. (Emphasis added. ) 
Section 92-702, R.C.M. (1947) (amended 1969) . The lower court properly denied claimant's request for a 

discretionary award as follows: 

The conditions for implementing the 

discretionary award do not exist. 

Claimant herein has not lost both hands, 

or both arms, or both feet, or both legs, 

or both eyes. 

The statute requires a "loss of" or "loss of use" of 

both hands, arms, feet, legs or eyes when implementing a 

discretionary award. The lower court most certainly may 

refuse a discretionary award as it did here. 

The last issue on appeal is whether claimant was paid an 

incorrectly low rate for his temporary total and permanent 

disability benefits. 

Respondent contends this issue was not raised before the 

lower court and should not be addressed on appeal. We find 

the rate question was generally raised before the Workers' 

Compensation Court and is properly before this Court on 

appeal. 

Claimant received 26 weeks of temporary total disability 

benefits at $60 per week and 500 weeks of permanent benefits 

at $55 per week. Claimant contends he is entitled to 

temporary total disability benefits of $65 per week for the 

duration of his temporary total disability of between 222 and 

300 weeks. The parties stipulated that the appropriate 

temporary total disability rate is $65 per week and that 

appears to be the proper rate under S 92-701, R.C.M. (1947) 

(amended 1969). Additionally, claimant contends he was 

entitled to the maximum rate for permanent total disability 

benefits of $60 per week pursuant to S 92-702, R.C.M. (1947) 

(amended 1969), rather than the $55 per week he received. 
Claimant's proper rate of compensation under 55 92-701 

and -2, R.C.M. (1947) (amended 1969) is based in part on the 

number of dependents of claimant and is subject to change 

when the number of dependents changes. We do not have 

sufficient evidence in the record to determine claimant's 

proper rate. Therefore, on remand we direct the Workers' 

Compensation Court to examine claimant's proper rate of 

compensation pursuant to 55 92-701 and -2, R.C.M. (1947) 

(amended 1969). 

Remanded for proceedings consistent with this opinion. 

We concur 
Mr. Justice William E. Hunt, Sr., dissenting: 

I dissent with the majority decision to limit claimant's 

total benefits to 500 weeks. 

I do agree with the majority decision to remand this 

case for a more specific determination of claimant's 

temporary total disability period but would hold that the 

claimant is entitled to temporary total disability in 

addition to the 500 weeks of permanent disability benefits he 

has already received. 

The court is charged here with reconciling several 

inconsistent statutes in the 1971 Montana Workers' 

Compensation Code on temporary and permanent disability 

benefits and duration of total combined benefits. 

Some 1971 statutes in the Act provided for more than 500 

weeks of benefits in spite of the limitation in S 92-708, 

R.C.M. (1947). For example, S 92-702, R.C.M. (1947), 

provided for an excess of 500 weeks of permanent total 

disability benefits in cases of hardship under the Board's 

discretion. Section 92-704, R.C.M. (1947), provided for a 

maximum of 600 weeks for death benefits. This indicates to 

me that the 500 week limitation is not an absolute maximum 

but a general guideline for benefit limits. 

The majority's decision could deprive a permanently 

totally disabled claimant from receiving any temporary total 

disability benefits. A permanently totally disabled claimant 

would be absolutely limited to 500 weeks under 92-708, 

R.C.M. (1947) which is the same as the maximum total 

disability entitlement minus hardship factors under 5 92-702, 

R.C.M. (1947). With this reasoning, it would appear that 

only permanently partially disabled claimants or ones who 
suffer no permanent disability would be entitled to claim 

temporary total disability benefits. 

I do not believe this was the intent of the Workers1 

Compensation Act in effect at that time. 

In Yurkovich v. Industrial Accident Board (1957), 132 

Mont. 77, 314 P.2d 866, this Court stated: 

In construing a statute, the whole act must be read 

together and where there are several provisions or 

particulars, a construction is, if possible, to be 

adopted that will give effect to it all. 

- Id. at 84, 

The majority opinion would not "give effect to the whole 

act" as required by this Court in Yurkovich. These 

statutes can be harmonized by considering S; 92-708, R.C.M. 

(1947) to be a general guideline for benefit limits rather 

than an absolute maximum. We have further held that: 

When two interpretations are a possibility, one 

favorable to the claimant and the other asainst 

him, the Act must -- be interpreted - in - a fashion 

favorable - to - the claimant. Geary v. Anaconda 

Copper Mining Co. (1947), 110 Mont. 485, 489, 188 

The majority's interpretation is not consistent with 

this mandate. 

I would hold that appellant is entitled to up to 300 

weeks of temporary total disability benefits and the 500 

weeks of permanent partial or permanent total disability 

benefits he has already received. Such a holding would 

resolve the inconsistencies in the 1971 statutes and also be 

keeping with the Yurkovich and Geary cases. 

Appellant, for his second issue, contends the trial 

court used an incorrectly strict standard to determine that a 

discretionary award under S 92-702, R.C.M. (1947) would not 

be granted. 
It is apparent from the trial court's finding that it 

did not consider the full standard. Section 92-702, R.C.M. 

(1947) requires a "loss -- of" - or "loss --- of use" of both hands, 

arms, feet, legs or eyes when implementing a discretionary 

award. 

While the trial court may refuse a discretionary award, 

I would hold the lower court erred by not considering the 

"loss of use" standard in determining the existence of 

hardship. This issue should be remanded to the trial court 

for a determination of eligibility of hardship benefits 

utilizing the statutory standard of "loss of" or "loss of 

use" of both hands, or both arms or both feet or both legs, 

or both eyes pursuant to § 92-702, R.C.M. (1947). 

I would reverse and remand the case. 1 

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

Hunt, Sr. 

./---, 

Justice