No. 13265 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 6 

RUTH COSGROVE, 

Plaintiff and Appellant, 

-vs - 

INDUSTRIAL INDEMNITY COMPANY, 

Defendant and Respondent. 

Appeal from: workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hoyt and Bottomly, Great Falls, Montana 

John C. Hoyt argued, Great Falls, Montana 

For Respondent: 

Marra, Wenz and Iwen, Great Falls, Montana 

Joseph Re Marra argued, and Charles Johnson argued, 

Great Falls, Montana 

-- 

Submitted: May 26, 1976 

Decided : JUf- 1 6 197E 

'Ilk 16 1976 Filed: - 
Honorable Bernard W. Thomas, District Judge, sitting in place 

of Mr. Chief Justice James T. Harrison, delivered the Opinion 

of the Court. 

Plaintiff appeals from an adverse judgment of the 

Worker's Compensation Court. The sole issue to be considered 

is whether plaintiff is entitled to attorney fees under the 

provisions of section 92-616, R.C.M. 1947, as amended by Chapter 173, Laws of 1974. 

The facts are: Plaintiff was injured in the course of 

her employment on March 25, 1974. Defendant, as the employer's 

insurance carrier under Plan Two of the Workmen's Compensation 

Act accepted plaintiff's claim and commenced paying her compensation for temporary total disability which was continued 

through December 16, 1974. On December 17, 1974, defendant 

notified plaintiff that effective December 16, 1974, compensation payments were being terminated on the basis of medical 

opinions from two Great Falls orthopedists that plaintiff was 

then able to return to work. Thereafter, plaintiff retained . 

cornsel who, on or about January 10, 1975, made demand on defendant that plaintiff be reinstated on compensation, since she 

still complained of pain and felt unable to work. Although 

defendant at that time refused to resume the compensation 

payments, it did agree to have plaintiff examined further at 

the Upper Extremity Clinic in Missoula and to pay the expenses 

incurred by plaintiff for that examination. On February 27, 

1975, plaintiff was examined at the Missoula dlinic and the 

examining doctors made their report containing their diagnosis 

and their recommendations reading: 

"This lady needs cervical myelogram to determine 

definitely whether or not there is a C-6 nerve 

root impingement. If the myelogram is compatible 

with clinical evaluation then anterior cervical 

decompression, excision of osteophytes, and 

intravertebral arthrodesis would be indicated. 

It is felt that this patient is to be considered 

unemployable during this period of time of evaluation. " 

This report was received by defendant on March 17, 1975, 

Defendant thereupon requested the Workmen's Compensation Division 

-2- 
(hereinafter referred to as the Division) to obtain a clarification of the last sentence of the recommendations. The 

Division on March 19, 1975, wrote for a clarification. The 

clarification was supplied by a letter to the Division dated 

April 18, 1975, in which it was stated: 

"What we meant was that until the cervical myelogram was performed and some decision made as to 

her definite diagnosis that I would have to consider her unemployable. * * *" 

This clarification was received by defendant on April 

29, 1975. By letter to plaintiff's counsel dated April 30, 

1975, defendant delivered a compensation check for plaintiff 

in the amount of $593.56 covering the period from December 17, 

1974 through April 28, 1975, and stated that defendant would 

be unable to continue compensation payments beyond that date 

unless plaintiff made arrangements for the myelogram. 

In the meantime, on March 17, 1975, plaintiff's counsel wrote to the Division demanding an emergency hearing and 

asking that plaintiff be placed on temporary compensation and 

that defendant be assessed with attorney fees and a ten percent 

penalty. On April 30, 1975, the Division mailed notice of 

hearing to be held on May 20, 1975. This notice was received 

by defendant on May 1, 1975, a day following defendant's payment 

of the $593.56 covering plaintiff's compensation from December 

17, 1974 through April 28, 1975. On May 15, 1975 the Division 

received defendant's answer and motion to dismiss plaintiff's 

request for hearing in which it was stated that defendant intended to continue paying "benefits until such time that a 

cervical myelogram is performed at which time a definite diagnosis can be made." Plaintiff's counsel opposed the motion to 

dismiss and the Division went ahead with the hearing on May 

20, 1975. Thereafter, on August 29, 1975, the hearing examiner 

for the Division made his findings of fact and conclusions of 

law. 

-3- 
In addition to the foregoing facts, the hearing 

examiner found that defendant failed to comply with the provisions of section 92-615, R.C.M. 1947, when it terminated 

benefits to plaintiff as of December 16, 1974, in that it had 

not given fifteen days' written notice of the termination 

to plaintiff and the Division. For that reason, the examiner 

concluded that a penalty of 10% of the compensation payable 

over the period December 16, 1974 to April 28, 1975 should be 

92 imposed on defendant under the provisions of section 93-824.1, 

R.C.M. 1947. A further finding was, that at the conclusion 

of the hearing, it was agreed that defendant would continue to 

pay temporary total disability benefits for a reasonable period 

of time so that plaintiff could select a doctor and a place to 

have a cervical myelogram performed. This was followed by a 

conclusion of law that the defendant should continue to pay to 

the plaintiff bi-weekly compensation benefits until the evidence 

revealed that the payments should be terminated or paid pursuant 

to a provision of the Workmen's Compensation Act other than 

section 92-701.1, R.C.M. 1947, which section covers compensation 

for temporary total disability. 

Another conclusion of law on the part of the hearing 

examiner was that "the language contained in section 92-616, 

coupled with the facts presented in the instant case, does not 

permit the Division to order defendant to pay plaintiff's costs 

and attorney fees." 

The findings of fact and conclusions of law of the 

hearing examiner were adopted by the judge of the Worker's 

Compensation Court. 

Plaintiff's counsel contends that plaintiff would never 

have been placed back on temporary total compensation but for 

his efforts and the hearing which he demanded; that only on 
the compulsion of a pending hearing and the fear that plaintiff 

would be awarded attorney fees did defendant resume payment of 

benefits to plaintiff; and that to allow defendant to defeat 

plaintiff's right to attorney fees by the voluntary payment 

under these circumstances would be to emasculate this statute 

and destroy the purpose of it and the intent of the legislature. 

Defendant responds that its resumption of compensation payments 

was not the result of the hearing or of any order or adjudication 

and points out that it made the deficiency payment of $593.56 

immediately upon receiving the clarification from the Upper 

Extremity Clinic and before receiving notice of the hearing, 

and that as a part of its motion to dismiss plaintiff's request 

for a hearing, it had agreed to continue compensation payments 

until the myelogram could be made. 

Whatever it was that motivated defendant to resume payment of compensation, it is clear that the Division has no authority to require payment of attorney fees by defendant unless that 

authority is found within the terms of section 92-616, as amended. 

Since the 1974 amendment, which became effective on March 11, 

1974, section 92-616 reads: 

"In the event the insurer denies the claim for 

compensation or terminates compensation benefits, 

and the claim is later adjudged cornpensable, by 

the division or on appeal, the insurer shall pay 

reasonable costs and attorneys1 fees as established 

by the division. However, under rules adopted by 

the division and in discretion of the division, 

an insurer may suspend compensation payments for 

not more than thirty (30) days pending the receipt 

of medical information." 

The 1974 amendment rewrote this section which was originally 

enacted as Section 2, Chapter 477, Laws of 1973, and as then 

enacted read: 

"In the event the insurer denies the claim, or 

terminates a claim that has already been accepted, 

and the claim is later determined to be compensable either through hearing or appeal to the courts, 
the insurer shall pay all costs incurred by the 

claimant, including reasonable attorneys' fees 

as established by the division." 

In construing a statute, the Court must determine 

the plain meaning of the words used. The language is to be 

interpreted in accordance with its usual, ordinary and accepted 

meaning, and the intention of the legislature in enacting it 

must be gathered from the language employed therein. Section 

93-401-15, R.C.M. 1947. County of Hill v. County of Liberty, 

62 Mont. 15; 203 P. 500; Mills v. State Board of Equalization, 

97 Mont. 13, 33 P.2d 563; State v. Midland Natll Bank, 132 Mont. 

339; 317 P.2d 880. 

The plain import of section 92-616 is that an adjudication of the claim as compensable either by the Division or on 

appeal to the courts is a prerequisite to the allowance of attorneys' fees to the claimant. That this was the intention of the 

legislature is emphasized by the change of wording adopted by 

the legislature when it rewrote the section in 1974. 

Plaintiff argues that under the rule of liberal construction section 92-616 should be interpreted as requiring the payment of attorneys' fees when the insurer has attempted to circumvent the statutory provision by agreeing to pay compensation before there has been an adjudication of compensability, and cites 

as authority the case of City of Miami Beach v. Schiffman, 144 

So.2d 799, 802, in which the Florida Supreme Court interpreted 

an assertedly similar Florida statute as warranting an allowance 

of attorneys1 fees to the claimant in the absence of an award 

for compensation, even though the statute appeared to make such 

an allowance dependent upon an award for compensation. Section 

440.34(1) of the Florida statute, as set out in Schiffman 

''I (1) If the employer or carrier shall file 

notice of controversy as provided in § 440.20 * * *, or shall decline to pay a claim on or 
before the twenty-first day after they have notice 

of the same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured 

person shall have employed an attorney at law in the 

successful prosecution of his claim, there shall, in 

addition to the award for compensation be awarded 

reasonable attorneys fee, to be approved by the commission * * *.'" 

In reaching its decision in the Schiffman case, the 

Florida court found some doubt in the language of this section 

and held that, if doubt exists, it should be resolved in favor 

of the working man. 

While we must and do agree that the Workmen's Compensation Act should be construed liberally and in favor of the working man, the language of the statute must first allow some room 

for construction. It is obvious that section 92-616 is written 

in language entirely different from that of the Florida statute 

and without doubt requires that the claim be "adjudged compensable by the division or on appeal" before the insurer can be 

required to pay attorney fees. There has been no finding or 

adjudication of compensability by the Division or by the Worker's 

Compensation Court in this case. 

We must rule on the law as it is and not what some may 

desire it to be. In the Matter of West Gt. Falls F1. Cont. Dist., 

159 Mont. 277, 496 P.2d 1143. 

The judgment of the Worker's Compensation Court is 

affirmed. 

Hon. Bernard W. Thomas, District 

Judge, sitting in place of Mr. Justice 

James T. Harrison. 

We Concur a