### 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 HonorableWilliamE. 

### Hunt, Judge presiding. Counsel of Record: ForAppellant: 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-16197E 

## 'Ilk161976 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 factsare: Plaintiffwas injured in the course of her employment onMarch 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 ofmedical opinions from two Great Fallsorthopedists 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, itdid agree to have plaintiff examined further at the Upper Extremity Clinic inMissoula 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 recommendationsreading: "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 arthrodesiswould 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-

### (hereinafterreferred to as the Division) to obtain a clarification of the last sentenceof the recommendations. The Division on March 19, 1975,wrote for a clarification. The clarificationwas supplied by a letter to the Division dated April 18, 1975, in which itwas stated: "Whatwe meant was that until the cervicalmyelogram was performed and some decision made as to her definite diagnosis that Iwould have to consider her unemployable. 

## * * 

# *" This clarification was received by defendant onApril 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 themeantime, 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. OnApril 30, 1975, the Divisionmailed notice of hearing to be held on May 20, 1975. This notice was received by defendant on May 1, 1975,a day followingdefendant'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 inwhich it was stated that defendant intended to continuepaying "benefitsuntil such time that a 

### cervicalmyelogram isperformed 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 onMay 20, 

### 1975. Thereafter, onAugust 29, 1975, the hearing examiner for the Divisionmade his findings of fact and conclusions of law. -3-In addition to the foregoing facts, the hearing examiner found that defendant failed tocomply with the provisions of section 92-615, R.C.M. 1947, when it terminated benefits toplaintiff asof December 16, 1974, inthat it had not given fifteendays' written notice of the termination 

### to plaintiff and the Division. For thatreason, the examiner concluded that a penalty of 10%of the compensation payable

over the period December 16, 1974 toApril 28, 1975 should be 

## 92 imposed on defendant under the provisions of section93-824.1, R.C.M. 1947. A further finding was, that atthe conclusion of the hearing, 

### it 

### was agreed thatdefendant 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 topay to the plaintiff bi-weekly compensation benefits until the evidence revealed that the payments should be terminated or paid pursuant toa provision of theWorkmen'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 factspresented inthe instant case, does not permit the Division toorder defendant topay plaintiff's costs and attorney fees." The findings of factand conclusions of law of the hearing examiner 

### were adopted by the judge of theWorker's Compensation Court. Plaintiff's counsel contends that plaintiff would never have been placed back on temporary total compensation but for his effortsand the hearing which he demanded; that only onthe compulsion of a pending hearing and the fear thatplaintiff would be awarded attorney fees did defendant resume payment of benefits toplaintiff; and that to allow defendant todefeat plaintiff's right toattorney fees by the voluntary payment under these circumstances would be toemasculate this statute and destroy thepurpose of it and the intentof the legislature. Defendant responds that 

### its resumption of compensation payments

was not the result of the hearing or of any order oradjudication and points out that 

### it made the deficiencypayment of $593.56 immediately upon receiving the clarification from theUpper Extremity Clinic and before receiving notice of the hearing, and that asa part of 

### itsmotion todismiss plaintiff's request for a hearing, 

### it had agreed tocontinue compensation payments until themyelogram could be made. Whatever 

### it was thatmotivated defendant toresume payment of compensation, it isclear that the Division has no authoritytorequire payment of attorney fees by defendant unless that authority 

### is found within the terms of section 92-616, asamended. Since the 1974 amendment, which became effectiveon March 11, 1974, section 92-616 reads: "In the event the insurer denies the claim for compensation or terminates compensation benefits, and theclaim 

### is later adjudged cornpensable, by the division or on appeal, the insurer shallpay reasonable costs and attorneys1fees as established by the division. However, under rules adopted by the division and indiscretion 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 sectionwhich was originally enacted as Section 2, Chapter 477, Laws of 1973, and asthen enacted read: "In the event the insurer denies the claim, or terminates a claim that has already been accepted, and the claim 

### is laterdetermined tobe compensable either through hearing or appeal tothe courts,the insurer shallpay allcosts incurred by the claimant, including reasonable attorneys' fees asestablished by the division." In construing a statute, the Court must determine the plain meaning of the words used. The language 

### is tobe interpreted inaccordance with 

### itsusual, 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; Millsv. StateBoard of Equalization, 97 Mont. 13, 33 P.2d 563; Statev. Midland NatllBank, 132 Mont. 339; 317 P.2d 880. The plain import of section 92-616 

### is that an adjudication of the claim ascompensable either by theDivision oron appeal tothe courts 

### is a prerequisite tothe allowance of attorneys' fees tothe claimant. That thiswas the intention of the legislature isemphasized by the change of wording adopted by the legislaturewhen 

### it rewrote the section in 1974. Plaintiff argues thatunder the rule of liberal construction section 92-616 should be interpreted asrequiring thepayment of attorneys' feeswhen the insurer has attempted tocircumvent the statutoryprovision by agreeing topay 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, inwhich theFlorida Supreme Court interpreted

an assertedly similar Florida statuteaswarranting an allowance of attorneys1fees tothe claimant inthe absence of an award for compensation, even though the statute appeared tomake 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 orcarrier shall file notice of controversy asprovided in § 440.20 

## * 

## * 

## *, or shalldecline topay a claim on or

### before the twenty-firstday 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 compensationbe 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 statutemust first allow some room for construction. It is obvious that section 92-616 iswritten 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 compensabilityby the Division or by the Worker's Compensation Court in this case. We must rule on the law as it is and not what somemay 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 

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