95-542

 No. 95-542

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 1997

JACK MURER, JAY HARBRIGE, KEITH MORDJA, SUSAN VERNON, 

BRUCE NELSON, STEVE PRICKETT, and JAMES BROWN,

 Claimants & Appellants,

 v.

STATE COMPENSATION MUTUAL INSURANCE FUND,

 Defendant, Respondent & Cross-Appellant,

 and

BEVERLY HARDY, et.al.,

 Intervenors & Respondents.

APPEAL FROM: Workers' Compensation Court, State of Montana,

 The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

 For Appellants:

 James H. Goetz (argued); Goetz, Madden & Dunn; Bozeman, 

 Montana; and Allan M. McGarvey; McGarvey, Heberling, 

 Sullivan & McGarvey; Kalispell, Montana

 For Respondent:

 Bradley J. Luck (argued) and Lucy T. France; Garlington,

 Lohn & Robinson; Missoula, Montana

 For Intervenors:

 Ira D. Eakin (argued); Lynaugh, Fitzgerald, Eiselein & Eakin;

 Billings, Montana

 Submitted: February 18, 1997

 Decided: June 23, 1997

Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (1 of 16)4/13/2007 4:10:33 PM
95-542

 __________________________________________

 Clerk Justice Terry N. Trieweiler delivered the 

opinion of the Court.

 The claimants, Jack Murer, Jay Harbrige, Keith Mordja, Susan Vernon, Bruce

Nelson, Steve Prickett, and James Brown, filed a petition for benefits in the 

Workers'

Compensation Court for the State of Montana. On November 20, 1995, the Workers'

Compensation Court entered its final judgment granting in part and denying in part 

the

benefits and fees which were sought. Claimants appeal and the respondent, State

Compensation Mutual Insurance Fund, cross-appeals. We affirm in part and reverse in

part the judgment of the Workers' Compensation Court, and remand to that court for

further proceedings consistent with this opinion. 

 On appeal, claimants raise the following issues:

 1. Did the Workers' Compensation Court err when it concluded that the

temporary cap on maximum benefits enacted in 1987 did not expire until June 30, 1991?

 2. Did the Workers' Compensation Court err when it concluded that the

settlement agreements entered into between claimants and the State Fund foreclose

claimants' rights to further benefits?

 3. Did the Workers' Compensation Court err when it denied claimants' motion

for attorney fees pursuant to the common fund doctrine?

 On cross-appeal, the State Fund raises the following issues:

 1. Did the Workers' Compensation Court err when it concluded that an

impairment award, paid in the form of a lump sum before June 30, 1991, at the request

of claimant Keith Mordja, must be increased pursuant to Murer II ?

 2. Did the Workers' Compensation Court err when it determined that the State

Fund's failure to increase Mordja's impairment award was unreasonable and, on that

basis, assessed a penalty pursuant to 39-71-2907, MCA?

 FACTUAL BACKGROUND

 In 1987, the Montana Legislature enacted the following cap on temporary total

disability benefits for injured workers:

 [B]eginning July 1, 1987, through June 30, 1989, weekly compensation

 benefits for temporary total disability may not exceed the state's average

 weekly wage of $299 established July 1, 1986.

Section 39-71-701(5), MCA (1987). See also 39-71-702(6), MCA (1987) (permanent

total disability), and 39-71-703(3), MCA (1987) (permanent partial disability). 

The

1989 Legislature enacted similar caps for injuries which occurred between July 17, 

1989,

and June 30, 1991. Those caps extended "through June 30, 1991." See 39-71-701

(5),

-702(6), and -703(3), MCA (1989). The State Fund deemed the caps ($299 per week for

total benefits; $149.50 per week for partial benefits) to be permanent and, on that 

basis,

continued to apply them after June 30, 1991. 

 Claimants are seven workers who were injured between July 1, 1987, and June 30,

1991, and who are entitled to disability benefits at the maximum statutory rate. 

They

filed a petition in the Workers' Compensation Court in which they contended that the

1987 and 1989 legislative caps were temporary and, therefore, cannot be applied after

1991. Furthermore, they asserted that: (1) the temporary cap enacted in 1987 expired

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (2 of 16)4/13/2007 4:10:33 PM
95-542

June 30, 1989, and did not apply thereafter to workers injured before that date; and 

(2)

the temporary cap enacted in 1989 can only be applied to injuries which occurred

between July 17, 1989, and June 30, 1991.

 Claimants initiated this litigation as representatives of a class of injured 

claimants

similarly situated. However, the Workers' Compensation Court concluded that

 a final judgment will have the same effect as a class action without the

 unnecessary complications. The Court is convinced that the regulatory

 agency (D.O.L.I.) and the supervision of the courts sufficiently protects all

 claimants . . . .

On that basis, the Workers' Compensation Court denied class certification and, on 

appeal,

we affirmed. Murer v. State Fund (1993), 257 Mont. 434, 849 P.2d 1036 (Murer I). 

 On remand, the Workers' Compensation Court concluded that the 1987 and 1989

caps were permanent and that, therefore, the State Fund could continue to apply the 

caps

after June 30, 1991. On appeal from that decision, we reversed the Workers'

Compensation Court, held that the caps on disability benefits were only temporary, 

and

remanded the case to the lower court for further proceedings. Murer v. State Fund

(1994), 267 Mont. 516, 885 P.2d 428 (Murer II). 

 Pursuant to Murer II, the State Fund was obligated to increase benefit payments

to a substantial number of claimants who were neither parties to, nor directly 

involved

in the Murer litigation. For that reason, claimants again moved for class 

certification. 

The State Fund, however, agreed to contact and pay all absent claimants, without

requiring further action on their behalf. 

 Under supervision of the Workers' Compensation Court, the State Fund identified

and notified absent claimants, and disbursed to them the required increase in 

benefits. 

Claimants and their attorneys asserted a lien for fees against those increased 

payments. 

In recognition of that lien, the State Fund withheld 20 percent from the amounts 

paid to

absent claimants. Claimants also moved the Workers' Compensation Court to award

them attorney fees pursuant to the common fund doctrine.

 On February 16, 1995, thirteen absent claimants, Beverly Hardy, et.al., filed a

motion to intervene, which the Workers' Compensation Court granted. On August 7,

1995, the court denied claimants' motion and refused to award them attorney fees

pursuant to the common fund doctrine. 

 Claimants continued to assert that workers' compensation claimants injured

between 1987 and 1989 should be subject only to the 1987 cap, and that the 1989 cap

applies only to claimants injured between 1989 and 1991. The Workers' Compensation

Court, however, refused to differentiate between the two classes of injured workers 

and

concluded that both the 1987 and the 1989 temporary caps expired June 30, 1991.

 During the pendency of this litigation, four of the Claimants--Jay Harbrige, 

Susan

Vernon, Steve Prickett, and James Brown--made settlement agreements with the State

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (3 of 16)4/13/2007 4:10:33 PM
95-542

Fund. Each of the settlement agreements was executed on Form LF820, a standardized

form which is published by the Department of Labor and Industry for purposes of lump

sum conversions pursuant to 39-71-741(2), MCA. Form LF820 contains the following

caption: PETITION FOR COMPROMISE 

AND RELEASE SETTLEMENT 

(Permanent Partial Wage Supplement 

and/or Rehabilitation Benefits).

 

 Notwithstanding the parenthetical language to the caption, the operative 

provisions

of each agreement contain the following language:

 The parties to this matter have agreed to fully and finally conclude

 all compensation and/or rehabilitation payments due the claimant under the

 Workers' Compensation Act . . . .

 

 . . . .

 

 The claimant hereby petitions the Division of Workers'

 Compensation . . . for approval of this petition and that the claim be fully

 and finally closed on the basis set forth above.

 The Department of Labor and Industry approved each settlement petition, and its

orders provide that the State Fund is "fully released and discharged from all further

obligations for compensation benefits for this injury under the Workers' Compensation

Act." Those orders also indicate that any dissatisfied party can appeal the order 

to the

Workers' Compensation Court; however, no appeals were filed. 

 Claimants' counsel selected and prepared these standardized settlement petitions

(Form LF820), and then forwarded them to the State Fund for execution. Claimants'

counsel, however, did not use the additional spaces provided to insert any special

provisions or to indicate the retention of any specific rights.

 Claimants maintained that there are ambiguities in the settlement petitions, 

and that

the contemporaneous correspondence between the parties reveal that they intended to

settle only their wage supplement and rehabilitation entitlements. The Workers'

Compensation Court, however, concluded that the settlement petitions foreclose

Claimants' rights to all further workers' compensation benefits, including their 

rights to

increased temporary total and impairment rating benefits. 

 Claimant Keith Mordja was injured on January 17, 1988. On June 14, 1990, it

was determined that he had reached maximum healing and his physician evaluated his

physical impairment at 30 percent. On June 27, 1990, the State Fund notified him 

that

his impairment rating entitled him to 150 weeks of benefits, commencing June 14, 

1990. 

Thus, 54.57 weeks of benefits would accrue before July 1, 1991, and 95.43 weeks would

accrue after July 1, 1991. He elected to receive his impairment award in a lump sum 

and

received the balance of his award on July 10, 1990. Pursuant to 39-71-703(1)(a)

(iii),

MCA (1987), his lump sum award was reduced to present value. 

 Pursuant to Murer II, the Workers' Compensation Court concluded that, with

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (4 of 16)4/13/2007 4:10:33 PM
95-542

regard to those benefits paid for the 95.43 weeks after July 1, 1991, Mordja was 

entitled

to an increase in his impairment award:

 The State Fund's refusal to pay the additional benefits was

 unreasonable. More than 95 weeks of the benefits were attributable to the

 time period after the temporary cap had expired. In paying the benefits in

 a lump sum the State Fund discounted the future benefits to present value

 (See 39-71-703(1)(a)(iii), MCA (1987)), thus acknowledging that the

 benefits were attributable to the later time. The matter was not reasonably

 debatable.

On that basis, the court assessed a 20 percent penalty in the amount of $191.32 

pursuant

to 39-71-2907, MCA. 

 STANDARD OF REVIEW

 When we review the Workers' Compensation Court's conclusions of law, our

standard of review is plenary and we must determine whether its conclusions are 

correct

as a matter of law. Lund v. State Fund (1994), 263 Mont. 346, 348, 868 P.2d 611, 

612. 

 ISSUE 1

 Did the Workers' Compensation Court err when it concluded that the temporary

cap on maximum benefits enacted in 1987 did not expire until June 30, 1991?

 The Workers' Compensation Court concluded that the 1987 temporary cap on

maximum benefits did not expire until June 30, 1991. The court based its conclusion 

on

the following language contained within Murer II:

 We hold that the "cap" on benefits, of $299.00, set by the 1987 and 1989

 legislatures in 39-71-701(5), MCA, was a temporary cap on benefits

 which terminated on June 30, 1991, and that on that date the appellants

 should have begun receiving benefits under 39-71-701(3), MCA, at the

 statutory rate determined as of the date of injury . . . .

Murer II, 267 Mont. at 522, 885 P.2d at 432. While this isolated quote, by itself,

arguably supports the Workers' Compensation Court's conclusion, a more thorough

analysis of the entire Murer II opinion, and its rationale, reveals that Murer II 

does not

support the Workers' Compensation Court's conclusion. 

 In Murer II, we held that, pursuant to the plain, objective language of the 

relevant

statutes, the 1987 and 1989 caps on maximum benefits were only temporary and,

therefore, that the State Fund could not continue to apply those caps after the 

dates on

which they expired. We reasoned as follows:

 Appellants argue, and we agree, that subsection (5) of 39-71-701, MCA,

 for the years 1987 and 1989, was a temporary, time-specific limitation and

 that when the limitation expired, the claimants should then have been paid

 maximum benefit rates not to exceed the state's average weekly wage rate

 at the time of the injury under 39-71-701(3), MCA.

Murer II, 267 Mont. at 522, 885 P.2d at 432. Accordingly, to the extent that any

language in Murer II supports the Workers' Compensation Court's conclusion, we 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (5 of 16)4/13/2007 4:10:33 PM
95-542

clarify

that opinion today. 

 The 1987 law unequivocally provides that the temporary caps on maximum

benefits expired June 30, 1989. "[B]eginning July 1, 1987, through June 30, 1989,

weekly compensation benefits for temporary total disability may not exceed the 

state's

average weekly wage of $299 established July 1, 1986." Section 39-71-701(5), MCA

(1987) (emphasis added). See also 39-71-702(6), MCA (1987) (permanent total

disability), and 39-71-703(3), MCA (1987) (permanent partial disability).

 It is well established that the workers' compensation law in effect at the time 

of

an injury governs the claim. Chagnon v. Travelers Ins. Co. (1993), 259 Mont. 21, 25,

855 P.2d 1002, 1004; Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328,

331. Furthermore, it is undisputed that any attempt by the Legislature to 

retroactively

change the law in effect at the time of an injury would be an unconstitutional 

impairment

of contract. Buckman v. State Comp. Ins. Fund (1986), 224 Mont. 318, 328, 730 P.2d

380, 386.

 Based on these well-established principles of law, we make the following

conclusions: (1) the 1987 temporary cap applies to injuries which occurred between 

July

1, 1987, and June 30, 1989; (2) the 1987 temporary cap expired June 30, 1989; (3) the

1989 temporary cap applies to injuries which occurred between July 17, 1989, and June

30, 1991; (4) the 1989 temporary cap expired June 30, 1991; and (5) the 1989 

temporary

cap cannot be applied retroactively to injuries which occurred prior to July 17, 

1989, the

date on which it became effective. 

 Accordingly, we hold that the Workers' Compensation Court erred when it

concluded that the temporary cap on maximum benefits enacted in 1987 did not expire

until June 30, 1991. That part of the Workers' Compensation Court's judgment to the

contrary is reversed.

 ISSUE 2

 Did the Workers' Compensation Court err when it concluded that the settlement

agreements entered into between claimants and the State Fund foreclose claimants' 

rights

to additional benefits?

 During the pendency of this litigation, four of the claimants--Jay Harbrige, 

Susan

Vernon, Steve Prickett, and James Brown--reached settlement agreements with the State

Fund. The Workers' Compensation Court concluded that those agreements foreclose

claimants' rights to all further workers' compensation benefits, including increased

temporary total and impairment rating benefits.

 On appeal, claimants contend that the settlement agreements foreclose only their

entitlements to wage supplement and rehabilitation benefits and, therefore, that the

Workers' Compensation Court erred when it concluded that those agreements foreclose

their rights to all further benefits. In support of this contention, they assert 

the following

two arguments: (1) pursuant to Ingraham v. Champion International (1990), 243 Mont.

42, 793 P.2d 769, the settlement petitions used by the parties (DOLI Form LF820) 

cannot

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (6 of 16)4/13/2007 4:10:33 PM
95-542

be applied to impairment awards; and (2) because the settlement petitions are 

ambiguous,

the court can and should analyze extrinsic evidence in order to determine the 

parties'

intent.

 Claimants' first argument asserts that: (1) pursuant to Ingraham, impairment

awards are not subject to the lump sum conversion requirements of 39-71-741, MCA;

(2) the settlement petitions used in this case (DOLI Form LF820) are specifically

designed to implement the provisions of 39-71-741(2), MCA; and (3) therefore, the

settlement petitions cannot be applied to impairment awards. 

 Although 39-71-741(2), MCA (1987-89), permits permanent total disability and

permanent partial wage supplement benefits to be converted to a lump sum, it does not

preclude claimants who are entitled to either type of those benefits from fully and 

finally

settling their potential rights to other types of benefits. Furthermore, Ingraham 

merely

provides that lump sum awards of impairment benefits are not subject to the 

requirements

set forth in 39-71-741(2), MCA (1987-89). Ingraham, 243 Mont. at 47, 793 P.2d at

772. We therefore conclude that claimants' reliance upon Ingraham is misplaced.

 Second, claimants contend that the settlement petitions are ambiguous and,

therefore, that the court can and should analyze extrinsic evidence---the 

contemporaneous

correspondence between the parties--in order to determine the parties' intent. In 

their

brief, they concede that there is language in the body of the petitions which "could 

be

construed as closing all claims for all types of benefits." The exact language of 

the

settlement petitions to which they refer provides, in part, that the parties "agreed 

to fully

and finally conclude all compensation and/or rehabilitation payments due the 

claimant"

and that the claimant "petitions the Division of Workers' Compensation . . . for 

approval

of this petition and that the claim be fully and finally closed."

 Despite that operative language in the petitions, claimants allege that, based 

on the

following factors, the settlement petitions are ambiguous: (1) the petitions are

standardized forms, produced by the DOLI; (2) the petitions are designed to 

implement,

and correspond directly to 39-71-741(2), MCA; and (3) the petition is captioned:

"(Permanent Partial Wage Supplement and/or Rehabilitation Benefits)." 

 Although the settlement petitions are, in fact, standardized forms produced by 

the

DOLI pursuant to 39-71-741(2), MCA, claimants' counsel selected and prepared the

petitions, and then forwarded them to the State Fund for execution. Claimants' 

counsel,

however, did not attempt to modify the unambiguous language in the petitions; nor did

they use the additional spaces provided to insert any special provisions or to 

indicate the

retention of any specific rights. Had they intended to enter into only a partial 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (7 of 16)4/13/2007 4:10:33 PM
95-542

settlement,

they could easily have inserted an express provision which retained their rights to 

further

benefits. 

 Therefore, even if we assume, without deciding, that the settlement petitions 

in this

case are, in fact, ambiguous, we conclude that any such ambiguities must be strictly

construed against the party who created them. Mueske v. Piper, Jaffray & Hopwood,

Inc. (1993), 260 Mont. 207, 216, 859 P.2d 444, 449-50; Lauterjung v. Johnson (1977),

175 Mont. 74, 78, 572 P.2d 511, 513. Accordingly, we hold that the Workers'

Compensation Court did not err when it concluded that the settlement agreements 

entered

into between claimants and the State Fund foreclose claimants' rights to all further

benefits, including increased temporary total and impairment rating benefits. That 

part

of the judgment of the Workers' Compensation Court is affirmed.

 ISSUE 3 

 Did the Workers' Compensation Court err when it denied claimants' motion for

attorney fees pursuant to the common fund doctrine?

 As a result of our decision in Murer II, the State Fund became obligated to

increase the rate of benefits payments to a substantial number of workers' 

compensation

claimants who were neither parties to, nor directly involved in the Murer 

litigation. 

Accordingly, the State Fund agreed to contact and pay those absent claimants. Under

supervision of the Workers' Compensation Court, the State Fund identified and 

notified

the absent claimants, and disbursed to them the required increase in benefits.

 Claimants and their attorneys asserted a lien against those increased 

payments. In

recognition of that lien, the State Fund withheld 20 percent from the amounts paid to

absent claimants. Claimants also moved the Workers' Compensation Court to award

them attorney fees pursuant to the common fund doctrine. The Workers' Compensation

Court, however, denied that motion.

 On appeal, claimants contend that the Workers' Compensation Court erred when

it denied their motion. Claimants concede that they do not have attorney fee 

agreements

with the absent claimants and that they are not statutorily entitled to the 

requested fees. 

However, they maintain that, as a result of their attorneys' efforts throughout the 

Murer

litigation, they have created a common fund which has directly benefitted a 

substantial

number of the absent claimants and, therefore, that those absent claimants should be

required to share in the costs, including reasonable attorney fees, of this unique 

litigation. 

On that basis, claimants assert that they are entitled, pursuant to the equitable 

common

fund doctrine, to reimbursement of their reasonable attorney fees. 

 The common fund doctrine is deeply rooted in American jurisprudence and

provides a well-recognized exception to the traditional American rule regarding 

attorney

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (8 of 16)4/13/2007 4:10:33 PM
95-542

fees. The United States Supreme Court created the common fund doctrine in Trustees

v. Greenough (1881), 105 U.S. 527, 15 Otto 527, 26 L. Ed. 1157, and has subsequently

applied that doctrine in numerous other cases. See e.g. Boeing Co. v. VanGemert

(1980), 444 U.S. 472, 100 S. Ct. 745, 62 L. Ed. 2d 676; Alyeska Pipeline Serv. Co. v.

Wilderness Society (1975), 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141; 

Fleischmann

Distilling Corp. v. Maier Brewing Co. (1967), 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed.

2d 475; Hobbs v. McLean (1886), 117 U.S. 567, 6 S. Ct. 870, 29 L. Ed. 940; Central

Railroad & Banking Co. v. Pettus (1885), 113 U.S. 116, 5 S. Ct. 387, 28 L. Ed. 915. 

These common fund doctrine cases provide that when a party has an interest in a fund

in common with others and incurs legal fees in order to establish, preserve, 

increase, or

collect that fund, then that party is entitled to reimbursement of his or her 

reasonable

attorney fees from the proceeds of the fund itself.

 In Means v. Montana Power Co. (1981), 191 Mont. 395, 625 P.2d 32, we

recognized that the common fund doctrine is "rooted in the equitable concepts of 

quasicontract, restitution and recapture of unjust enrichment. " Means, 191 Mont. at 403, 

625

P.2d at 37. Furthermore, we expressly adopted the common fund doctrine and concluded

that:

 The "common fund" concept provides that when a party through

 active litigation creates, reserves or increases a fund, others sharing in the

 fund must bear a portion of the litigation costs including reasonable attorney

 fees. The doctrine is employed to spread the cost of litigation among all

 beneficiaries so that the active beneficiary is not forced to bear the burden

 alone and the "stranger" (i.e., passive) beneficiaries do not receive their

 benefits at no cost to themselves.

Means, 191 Mont. at 403, 625 P.2d at 37.

 Application of the common fund doctrine is especially appropriate in a case like

this where the individual damage from an institutional wrong may not be sufficient 

from

an economic viewpoint to justify the legal expense necessary to challenge that 

wrong. 

The alternative to the doctrine's application is simply for the wrong to go 

uncorrected.

 Based on these legal principles and authorities, we conclude that when a party,

through active litigation, creates a common fund which directly benefits an 

ascertainable

class of non-participating beneficiaries, those non-participating beneficiaries can 

be

required to bear a portion of the litigation costs, including reasonable attorney 

fees. 

Accordingly, the party who creates the common fund is entitled, pursuant to the 

common

fund doctrine, to reimbursement of his or her reasonable attorney fees from that 

fund. 

 Claimants have engaged in complex, lengthy, and expensive litigation. As a

result, they were able to establish, in Murer II, a legal precedent which directly 

benefits

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (9 of 16)4/13/2007 4:10:33 PM
95-542

a substantial number of workers' compensation claimants who were neither parties to, 

nor

directly involved in the Murer litigation. However, claimants have also accomplished

significantly more than just the establishment of a favorable legal precedent. 

Additionally, claimants established a vested right on behalf of the absent claimants 

to

directly receive immediate monetary payments of past due benefits underpayments; and

based on the establishment of those vested rights, the State Fund became legally 

obligated

to make the increased benefits payments. 

 In order to implement the mandate of Murer II, the State Fund, under supervision

of the Workers' Compensation Court: (1) identified a substantial number of absent

claimants; (2) notified those claimants of their rights pursuant to Murer II; (3) 

calculated,

with mathematical certainty, the increases to which each individual absent claimant 

is

entitled; and (4) made actual payments to those claimants. The State Fund, 

therefore, has

been able to determine, with certainty, the number of absent claimants involved and 

the

amount of money to which each individual claimant is entitled. Accordingly, as a 

direct

result of claimants' litigation efforts, a substantial number of absent claimants 

have

received direct monetary benefits payments, even though they were not required to

intervene, file suit, risk expense, or hire an attorney.

 Moreover, claimants filed a lien on the increased benefits payments made by the

State Fund to absent claimants. In recognition of that lien, the State Fund 

withheld 20

percent from the payments which have actually been disbursed to the individual absent

claimants. In essence, therefore, claimants request that they be awarded a 

reasonable

percentage of the amounts which have actually been paid to an identifiable class of 

absent

claimants. 

 Based on the facts in this case, we conclude that claimants, through active

litigation, created a common fund which has directly benefitted an ascertainable 

class of

absent workers' compensation claimants and, therefore, that those absent claimants 

should

be required to contribute, in proportion to the benefits they actually received, to 

the costs

of the litigation, including reasonable attorney fees. Accordingly, we hold that the

Workers' Compensation Court erred when it denied claimants' motion and refused to

award them reasonable attorney fees pursuant to the common fund doctrine. The

judgment of the Workers' Compensation Court to the contrary is reversed.

 CROSS-APPEAL ISSUE 1

 Did the Workers' Compensation Court err when it concluded that an impairment

award, paid in the form of a lump sum before June 30, 1991, at the request of 

Claimant

Keith Mordja, must be increased pursuant to Murer II ?

 Claimant Keith Mordja was injured on January 17, 1988. On June 14, 1990, he

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (10 of 16)4/13/2007 4:10:33 PM
95-542

was found to have achieved maximum healing and his physician evaluated his physical

impairment at 30 percent. That rating entitled him, pursuant to 39-71-703, MCA

(1987), to an impairment award of 150 weeks at the maximum statutory rate. He 

elected

to receive his impairment award in a lump sum and received the balance on July 10,

1990. Pursuant to 39-71-703(1)(a)(iii), MCA (1987), his lump sum award was reduced

to present value. The calculation by which the State Fund reduced his award to 

present

value utilized a period of 150 weeks, commencing June 14, 1990. Thus, 54.57 of the

weeks occurred before July 1, 1991, and 95.43 of the weeks occurred after July 1, 

1991. 

 Pursuant to our holding in Murer II that the 1987 and 1989 caps on maximum

disability benefits were only temporary, Mordja sought an adjustment of his lump sum

impairment award to reflect the increased rate. The State Fund, however, determined

that the 1987 temporary cap did not expire until 1991 and, on that basis, refused to 

pay

the increase for those weeks prior to July 1, 1991. The State Fund also refused to 

pay the

increase for those weeks after July 1, 1991, based on the fact that Mordja received 

his

lump sum award on July 10, 1990, which was prior to the 1991 expiration of the

temporary caps.

 Based on its determination that the 1987 temporary cap on benefits did not 

expire

until 1991, the Workers' Compensation Court concluded that Mordja is not entitled to 

an

increased impairment award for the 54.57 weeks prior to July 1, 1991. The court,

however, found that "[e]ven though all benefits were paid in a lump sum, 95.43 weeks

of those benefits were attributable to July 1, 1991 and thereafter." On that basis, 

the

court concluded that Mordja is entitled to an increased impairment award for the 

95.43

weeks after July 1, 1991. 

 On appeal, the State Fund contends that the Workers' Compensation Court erred

when it determined that Mordja is entitled to an increased award for the 95.43 weeks

after July 1, 1991. However, we conclude that the State Fund's contention is now 

moot. 

In Issue 1 of this opinion, we concluded that the 1987 temporary cap on benefits 

expired,

by its express terms, on June 30, 1989, and that the 1989 temporary cap applies only 

to

injuries which occurred between July 17, 1989, and June 30, 1991. 

 Mordja's injury occurred on January 17, 1988, and therefore, the 1987 temporary

cap governs his claim. See Chagnon, 259 Mont. at 25, 855 P.2d at 1004. The actual

payment of his lump sum award, however, did not occur until July 10, 1990, more than

one year after the 1987 cap expired. Moreover, the 1989 cap cannot be applied

retroactively to an injury which occurred before July 17, 1989, the date on which it

became effective. See Buckman, 224 Mont. at 328, 730 P.2d at 386.

 Therefore, we conclude that the temporary cap on Mordja's disability benefits

expired June 30, 1989, and that, concomitantly, his entire 150-week benefit package,

which was paid after the applicable 1987 temporary cap expired, must be calculated at

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (11 of 16)4/13/2007 4:10:33 PM
95-542

the maximum statutory rate and is not subject to the temporary cap on benefits. On 

that

basis, we hold that the Workers' Compensation Court: (1) did not err when it 

concluded

that Mordja is entitled to an increase in his impairment award for the 95.43 weeks 

after

July 1, 1991; and (2) erred when it concluded that Mordja is not entitled to an 

increase

for the 54.57 weeks prior to July 1, 1991. Accordingly, that part of the judgment 

of the

Workers' Compensation Court is affirmed in part and reversed in part.

 CROSS-APPEAL ISSUE 2

 Did the Workers' Compensation Court err when it determined that the State Fund's

refusal to increase Mordja's impairment award was unreasonable and, on that basis,

assessed a penalty pursuant to 39-71-2907, MCA?

 Whether an action is "unreasonable" pursuant to 39-71-2907, MCA, is a

"question of fact which is subject on appeal to the limited review of the substantial

evidence test. If there is substantial evidence to support a finding of 

'unreasonableness',

this Court cannot overturn the finding." Wight v. Hughes Livestock Co., Inc. 

(1981), 194

Mont. 109, 115, 634 P.2d 1189, 1192; see also Marcott v. Louisiana Pacific Corp.

(1996), 275 Mont. 197, 203, 911 P.2d 1129, 1133 ("reasonableness"). 

 The Workers' Compensation Court determined that:

 The State Fund's refusal to pay the additional benefits was

 unreasonable. More than 95 weeks of the benefits were attributable to the

 time period after the temporary cap had expired. In paying the benefits in

 a lump sum the State Fund discounted the future benefits to present value

 (See 39-71-703(1)(a)(iii), MCA (1987)), thus acknowledging that the

 benefits were attributable to the later time. The matter was not reasonably

 debatable.

On that basis, the court assessed a 20 percent penalty in the amount of $191.32 

pursuant

to 39-71-2907, MCA.

 We conclude that the Workers' Compensation Court's findings are supported by

substantial evidence. Accordingly, we hold that the court did not err when it 

concluded

that the State Fund's failure to increase Mordja's impairment award was unreasonable

and, on that basis, assessed a 20 percent penalty pursuant to 39-71-2907, MCA. 

That

part of the judgment of the Workers' Compensation Court is affirmed.

 For these reasons, and based on these conclusions, this case is remanded to the

Workers' Compensation Court for further proceedings consistent with this opinion.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (12 of 16)4/13/2007 4:10:33 PM
95-542

/S/ JAMES C. NELSON

Justice Karla M. Gray, concurring in part and dissenting in part.

 I concur in the Court's opinion on all issues except that involving the award of

attorney fees pursuant to the common fund doctrine. I respectfully dissent from the 

opinion on that issue.

 There is no question but that we have recognized and applied the common fund

doctrine, which is based on equitable concepts. Means, 625 P.2d at 37. I agree 

with the

doctrine and support its application under appropriate circumstances. I cannot 

agree with

its application in this case for two reasons: first, it is my view that neither the 

Workers'

Compensation Court or this Court is authorized to award such fees in the context of 

the

purely statutory workers' compensation system which exists in Montana; and, second, 

the

common fund doctrine is not applicable here in any event.

 The Workers' Compensation Act (Act) is a purely statutory scheme, duly enacted

by the Legislature, which governs all aspects of workers' compensation claims and

awards. The extent of compensation which may be awarded for various types of

disabilities is controlled by statute. See, e.g., 39-71-701 through 39-71-703, 

MCA. 

In a similar fashion, the Act expressly regulates attorney fees and goes so far as to

require an attorney representing a workers' compensation claimant to submit his or 

her

employment contract, setting forth the terms of the fee arrangement, to the 

Department

of Labor and Industry (Department). See, e.g., 39-71-611 through 39-71-614, MCA. 

 In light of these circumstances, the Workers' Compensation Court correctly concluded

that it was without authority to create a separate equitable remedy under the Act

regarding attorney fees. 

 Indeed, one of the United States Supreme Court's decisions on which this Court

relies in concluding that the common fund doctrine is applicable here reaches a 

contrary

result under circumstances much like those presently before us. Fleischmann involved

a claim for trademark violation under the federal Lanham Act and the Supreme Court

considered the issue of whether federal courts could award attorney fees as a 

separate

element of recovery in light of the Act's enumeration of available remedies. The

Supreme Court discussed the common fund doctrine as an exception to the "American

rule" which allows an award of attorney fees only where expressly permitted by 

statute

or contract, but observed that the doctrine had not been developed in the context of

statutory causes of action which prescribe statutory remedies. The Supreme Court 

stated

that, "[w]hen a cause of action has been created by a statute which expressly 

provides the

remedies for vindication of the cause, other remedies should not readily be 

implied." 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (13 of 16)4/13/2007 4:10:33 PM
95-542

Fleischmann, 386 U.S. at 720 (citations omitted). Consequently, the Supreme Court 

was

compelled to conclude "that Congress intended 35 of the Lanham Act to mark the

boundaries of the power to award monetary relief in cases arising under the Act. A

judicially created compensatory remedy in addition to the express statutory remedies 

is

inappropriate in this context." Fleischmann, 386 U.S. at 721.

 In my opinion, we must reach the same result here. The Workers' Compensation

Act is a statutory system providing for a statutory cause of action and statutorilyprescribed remedies, including attorney fees. No portion of the Act authorizes the

attorney fees sought here pursuant to the common fund doctrine and we are not free to

judicially engraft equitable remedies such as this onto the Act. We have stated on 

prior

occasions, in rejecting "equity and fairness" arguments by both claimants and 

insurers in

the context of the Act, that it is the province of the courts to construe and apply 

the law

as we find it and to maintain its integrity as it was written by a coordinate branch 

of state

government. See Wildin v. CNA Ins. Co. (1993), 256 Mont. 354, 358, 846 P.2d 1022,

1025; Raffety v. Kanta Products, Inc. (1991), 250 Mont. 268, 272, 819 P.2d 1272, 

1275. 

Doing so here requires us to affirm the Workers' Compensation Court's conclusion that

the common fund doctrine for awarding attorney fees is not available in the context 

of the

Act.

 It is also my view that, even if the equitable remedy were not precluded by the

Act, it is unavailable here. As set forth by the Court, the common fund doctrine

recognized by the United States Supreme Court provides that "when a party has an

interest in a fund in common with others and incurs legal fees in order to 

establish . . .

that fund, then that party is entitled to reimbursement of his or her reasonable 

attorney

fees from the proceeds of the fund itself." Similarly, as recognized by this Court 

in

Means, the doctrine is employed to spread the cost of litigation among all 

beneficiaries

so that "the active beneficiary is not forced the bear the burden alone. . . ." 

Means, 625

P.2d at 37. I submit that these requirements are not met in this case.

 In the first place, it is my view that there is no common fund here. While 

Murer

II undoubtedly created an entitlement in numerous individual nonparty claimants to

additional benefits, no "fund" was set aside for the payment of such benefits, 

either in

the course of this litigation or otherwise. The common fund cases, while not 

defining

precisely what is required to constitute a "common fund," each involve a settlement 

fund,

a judgment fund, or a trust fund of some sort. This case does not.

 Moreover, the common fund cases commonly involve other beneficiaries who also

are parties in the litigation at issue or, at the least, in related litigation. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (14 of 16)4/13/2007 4:10:33 PM
95-542

Here, efforts to

certify this litigation as a class action were unsuccessful and the individuals who 

are

receiving additional benefits as a result of Murer II have never been parties to 

this case. 

 Yet the Court cites to no case under which nonparty beneficiaries have been 

required to

pay a portion of attorney fees under the common fund doctrine.

 Finally, while the common fund doctrine is properly applied in certain

circumstances to avoid forcing the active party to bear the burden of the attorney 

fees

incurred, those circumstances are not present in this case. The party claimants 

here are

not required by their fee arrangements with counsel to bear the burden of fees in 

excess

of those relating to their own claims; the fee contracts generally provide that the 

client

claimants are responsible only for the standard 20%/25%. Thus, the fees for which

"reimbursement" is being sought here are not fees incurred by these claimants such as

would support application of the common fund doctrine under the federal cases cited 

by

the Court. They are additional and extraordinary fees sought by the attorneys who

represented the named claimants in this case. Similarly, the party claimants are not 

being

forced to bear the burden of attorney fees for the nonparty beneficiaries. That 

burden

ultimately will fall on counsel and, in my view, that is as it should be.

 Counsel here submitted their fee agreements with the party claimants to the

Department as required by 39-71-613, MCA. These are the fees they sought in their

pleadings, pursuant to applicable statutes, through the first two appeals to this 

Court in

this litigation. In the framework of the Act, those are the only fees to which 

counsel are

entitled. Subsequent to Murer II, and on remand to the Workers' Compensation

Court, counsel first asserted a claim to fees under the common fund doctrine. At 

that

point, it became clear that counsel had had an early understanding with their 

claimant

clients to seek fees in addition to those obtainable pursuant to the submitted fee

agreements. They had planned to be able to do so through the class action mechanism;

as noted above, however, efforts to obtain class certification were not successful. 

An

affidavit of record from one counsel repeatedly states that "but for" the 

"expectation" that

the fees would be compensated under the common fund doctrine, counsel would not have

been able to afford to pursue the litigation to its successful conclusion, since the 

amounts

to which the party claimants ultimately would be entitled would be small. 

 While I sympathize with counsel's substantial investment of time in this 

litigation,

and applaud their success on behalf of their clients and the benefits their work is

providing to numerous nonparties, I am unpersuaded that we should "bend" the common

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (15 of 16)4/13/2007 4:10:33 PM
95-542

fund doctrine to award them fees under a doctrine intended to protect the parties to 

a suit

where, as here, the parties require no protection. Many legal actions involve risk 

to

counsel of fee awards which are not commensurate with the amount of work performed. 

Indeed, it is fair to say that many counsel "give it their all" to the same extent 

these

counsel have done and are altogether unsuccessful, both as to their clients' 

recovery and

their own. We do not have a system, however, under which counsel are then

remunerated based on their "expectations." We should not create one here.

 I would affirm the Workers' Compensation Court's denial of attorney fees under

the common fund doctrine.

 /S/ KARLA M. GRAY

Chief Justice J. A. Turnage: 

 I concur in the dissent of Justice Gray. 

 /S/ J. A. TURNAGE

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/95-542%20Opinion.htm (16 of 16)4/13/2007 4:10:33 PM