No. 13498 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

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, GreatFalls,

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:

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c&dClerkHonorable Peter G. Meloy,District Judge, sitting in place of Mr. Chief Justice Paul G. Hatfield,delivered the Opinion of the Court. Respondentwas injured in an industrial accident and filed a claim for compensation with the Montana Workers' CompensationDivision. Thereafter,a dispute arose between respondent and appellants concerning the nature and extent of respondent's resulting disability. A hearing was held before

a divisionhearing examiner on July 25, 1974. On November 26, 1974,an order awarding compensationwas entered by the administrator of the division,which order awarded respondentpermanent 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' CompensationCourt's review of the Workers' Compensation Division is limited by section 82-4216,R.C.M. 1947. That sectionadmonishes the review court that it: 

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## * 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 ormodify 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 Statesv. United StatesGypsum Co., 333U.S. 364, 68 S.Ct. 525, 92 L ed 746, 766, is a proper definition. Therein it stated: "A finding is 'clearlyerroneous'when although there is evidence to support it, the reviewing court on the entire evidence is leftwith the definite and firm conviction that a mistake has been committed." The appellantscontend the Workers1CompensationCourt 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 themedical reports in the Workers1Compensation file. (3)The Workers1CompensationCourt 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 issueswithin 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 disabilitywas the testimony of the respondenthimself. 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 sinceworked about 25 years as a meat cutter and about 15 years as a laborer in themoving and storage business. There was no medical testimony presented at the hearing. According to the memorandum accompanying the Division's findingsof fact and conclusionsof law,both sides seemed satisfied to rely on themedical 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. Popnoewrote onApril 10, 1974 in a report addressed to the agent of appellant: "Ifeel that he is too old for fusion. He is not trained in any type of work other than heavy work. He conceivablymight do very light work not requiring any heavy lifting,pushing or pulling,possibly as a watchman or something similar. It ismy feeling that his permanent partial disability considering all things should be approximately 60-70%." Dr. Forbeckwrote on June 5, 1974 in a report addressed to the appellant with a copy to an agent of appellant: 

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## * * * It is hoped thatwith the passage of time and perhaps a continuationof conservative measures of therapy,his present difficultywill 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-fivepercent 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, themedical reports, the age, education and experience of respondent,he had sufficient evidence to support his finding of factNo. 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 respondentwas 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 findingsof factdo not support its conclusions of lawand its order awarding compensation. Nowhere in section 92-441,whichdefines 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 labormarket; but it does not set out that he must havemade 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 factNo. 11,clearly saw such a situation. Inview of themedical 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 labormarket 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) Themedical reports were unsworn and were not offered in evidence. Appellants contend that for the Division to have considered these reportsdenied appellants their right to cross-examine the preparers and to rebut the evidence contained therein. The contents of the reports in question, oneby Dr. Popnoe, the treating physician, and oneby 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 contentswere discussed in part but apparentlywere not entered into evidence. No other medical evidencewas produced at the hearing. The hearing examiner had been given to understand that "both sides seemed satisfied to rely on the two medical reports". Thiswas stated in thememorandum accompanying the order awarding compensation.Itwas not a reversible abuse of discretion for the Division to consider the contents of reportswhich were a part of its file in the case, the contents of both whichwere known to theparties 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 aswell 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 reviewwas not satisfied with either themateriality 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 theWorkers' Compensation Court erred in affirming the order awarding compensation to the extent it awarded respondenta $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:"Suchconversion can only be made upon the written application of the injured worker

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## *."Since respondentdid not apply inwriting, 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 calculationof the present worth of the deferred payments. Section 92-715 is not applicable to a "lump sum advance." Under the circumstances here the Divisiondid not abuse its discretion in ordering the advance. Compare Sullivanv. Anselmo Mining Corp., 82Mont. 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 Divisiongranted. The burden, they claim, is clearly

on respondent to justify the conversion and the amount thereof. Thisburden, according to appellants,was notmet. At the hearing, respondent testified to debts of "around $6,000.00" but he was not certain to whom they were owed or inwhat amounts. At a later date, a list of amounts owed and towhom 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 factNo. 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, 135Mont. 469, 342 P.2d 752. In finding of factNo. 12 the Division found respondent testified at the hearing that his accumulated obligations had become an impossible burden upon him and that he could notmeet his financial obligations,pasf: a.ndcurrent, with the amount he received inWorkers' Compensationbenefits.In finding of factNo. 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 lawNo. 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.



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on. Peter G. Me oy, strict Judge, sitting in plac r. Chief Justice PaulG. Ha 

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