No. 87-15 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ROBERT LEIKAM, 

Claimant and Appellant, 

-vsEDSON EXPRESS, Employer, 

and 

HOME INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Vernon E. Woodward, Billings, Montana 

For Respondent: 

James, Gray & McCafferty; Randall H. Gray, Great 

Falls, Montana 

Submitted on Briefs: April 16, 1987 

Decided: August 12, 1987 

Filed: AD@ 12 198f. 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

Claimant, Robert W. Leikam, appeals from an order of the 

Workers1 Compensation Court denying his motion to enter 

judgment in his favor after the parties stipulated to 

d.efendantls liability and to vacate trial. 

We affirm the order of the Workers1 Compensation Court. 

The issues presented for review by claimant in this case 

are : 

1. Whether the Workers1 Compensation Court erred in 

denying claimant's motion for entry of judgment. 

2. Whether claimant is entitled to an award of attorney 

fees pursuant to 5 39-71-611, MCA. 

The facts in this case are undisputed. 

Appellant, Robert Leikam, was a long distance truck 

driver for Edson Express from 1981 through early 1986. On 

September 20, 1984, Leikam suffered a low back injury while 

unloading washing machines. 

Leikam timely reported his injury to his employer and 

filed a claim for compensation. The insurance carrier, Home 

Insurance Company (hereinafter Home), accepted liability for 

the injury. Leikam continued working after the accident 

until he lost his job on January 16, 1986 for reasons not 

related to his Workers' Compensation claim. 

Between the date of the injury and February of 1986, 

Leikam visited a chiropractor many times for treatment. Home 

compensated Leikam for these treatments. 

In March, 1986, claimant saw Dr. James T. Lovitt, a 

Billings Montana orthopedic surgeon who advised him that he 

could no longer work as a result of his industrial accident. 
He informed Home of this new development and requested that 

Home begin paying temporary total disability benefits to him. 

Home denied the claim, requesting additional medical 

examinations before complete medical benefits and temporary 

total disability benefits would be paid. Claimant filed a 

petition with the Workers1 Compensation Court. As discovery 

developed, Home agreed to place Lleikam on temporary total 

disability benefits, on a non-acceptance basis, pending 

further investigation. 

On July 14, 1986, the parties filed a final pre-trial 

order which listed the following issues to be resolved by the 

Workers I Compensation Court. 

1. Is the Claimant currently temporarily totally 

disabled as a result of the September 22, 1984, 

industrial injury? 

2. If so, what, if any, temporary total disa.bility 

benefits is the Claimant entitled to? 

3. Is the Claimant entitled to any penalty 

pursuant to Section 39-71-2907, MCA? 

4. Is the claimant entitled to reasonable 

attorney's fees and costs? 

5. Is the Defendant estopped from denying 

acceptance of this claim? 

The case was initially scheduled for trial on July 22, 

1986, but was continued until November. On July 29, counsel 

for both parties had a lengthy telephone conversation with a 

neurologist from Billings who had treated Leikam upon 

referral by his primary treating physician. As a result of 

this phone conversation, Home stipulated to liability for the 

September 22, 1984 injury and agreed to retroactively pay all 

temporary total disability benefits arising therefrom. The 

November trial date was vacated. Subsequent to the parties' 
stipulation, Leikam moved the Workers' Compensation Court for 

entry of judgment pursuant to the stipulated agreement. 

On December 26, 1986, the Workers1 Compensation Court 

entered its order denying Leikam's motion for entry of 

judgment and dismissing the petition sua - sponte. The order 

was based on a lack of jurisdiction to enter judgment when 

there was no longer any dispute. 

Claimant appeals from this order alleging: 1) that 

the Workers' Compensation Court does have jurisdiction to 

enter judgment and 2) should award claimant attorney fees, 

costs and a 20% penalty provided for by 5 39-71-2907, MCA. 

The second issue of whether claimant is entitled to an 

award of attorney fees and/or a penalty is dispositive in 

this case. 

Regardless of whether or not we hold that the Workers1 

Compensation Court did have jurisdiction to enter judgment 

pursuant to the parties' stipulation, the outcome would be 

the same as to attorney fees. Entering judgment pursuant to 

a stipulation does not amount to a judgment of 

compensability as required by 5 39-71-611, MCA: 

In the event an insurer denies liability for a 

claim for compensation or terminates compensation 

benefits and the claim is later adjudged 

compensable by the workers' compensation judge or 

on appeal, the insurer shall pay reasonable costs 

and attorneys1 fees as established by the workers1 

compensation judge. 

In Lasar v. Oftedal & Sons (Mont. 1986), 721 P.2d 352, 

353, 43 St.Rep. 1239, 1240, this Court held that where there 

is a situation in which the insurer does not deny liability 

for a claim or terminate benefits the claimant is not 

entitled to attorneys fees and costs under 5 39-71-611, MCA. 

Home accepted liability for Leikamls claim and did not 

terminate his benefits. 
Adjudication of a Workers' Compensation claim as 

compensable is a prerequisite to allowance of attorney fees 

pursuant to this statute. Cosgrove v. Industrial Indemnity 

Co. (1976), 170 Mont. 249, 254, 552 P.2d 622, 624. 

If an insurer denies liability for a claim for 

compensation, the insurer is liable for attorney's 

fees if the claim is later adjudged compensable by 

the Workers' Compensation judge. It is clear from 

the language of the statute that there must be an 

adjudication of compensability before an award of 

attorney's fees is authorized. 

Yearout v. State Compensation Insurance Fund (~ont. 1986), 

719 P.2d 1258, 1259, 43 St.Rep. 1063, 1065. 

In this case, there was no adjudication of 

compensability. The parties settled their compensation 

dispute before the trial date, vacating the trial. As we 

stated in Yearout, 719 P.2d at 1260, the proper forum for 

redress of this sometimes harsh result is the Legislature. 

Other alternative remedies may be available to claimant. 

The decision of the Workers' Compensation Court is 

aff irmed. 

We Concur: A 2/xC/ - 

Chief Justice 
/P&-,/ Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissented in Yearout, 719 P.2d at 1260-1261, and I 

dissent here for the same reasons. 

The practice of insurers in the state (and it is a 

practice) to force employees to obtain attorneys in order to 

get their rightful benefits, and then to confess liability at 

or near the time of trial ought to be condemned by us and 

prohibited by the assessment of penalties and attorney fees. 

This Court reads 39-71-611, MCA too narrowly when it 

requires an actual adjudiciation before it will assess the 

penalties. 

The intent and purpose of the Workers' Compensation Act 

is to make some provision to the worker for his economic loss 

brought about by his injuries. Rarely does he recover the 

whole amount of his loss. When a recalcitrant insurer delays 

and denies his benefits, and forces him to the Workers' 

Compensation Court to obtain his rights, at that point he 

should be entitled to the penalties if his cause is just. 

Our refusal of those penalties is another economic loss to 

the worker because he must then bear the expense of his 

litigation. I cannot believe that result is what the