### No. 79-112 INTHE SUPREME COURTOF THE STATEOF MONTANA 1980

CONTINENTAL INSURANCE COMPANY and RAYMOND CORCORANTRUCKING,Employer, DefendantandAppellant,

RICHARD B. HORTON, Claimantand Respondent.

Appeal from: Workers' CompensationCourt Honorable William E. Hunt,Judgepresiding. Counsel ofRecord: ForAppellant: Pedersen, Herndon, Harper & 

### Munro, Billings,Montana For Respondent: William T. Kelly, Billings,Montana

Submittedonbriefs: April 24, 

### 1980 Decided: 

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# 221~ Filed: 

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# IYB~Mr. 

### Chief Justice Frank I. 

### Haswell delivered the Opinion of the Court. Continental Insurance Company appeals from an order of the Workers' Compensation Court denying the Insurance Company's motion for an evidentiaryhearing prior to a judicial determination of an award of attorney fees and costs. Richard B. 

### Horton (claimant) was injured in an industrial accident on May 28, 1975. 

### His injury arose out of and inthe

course of his employment. Initially, the Insurance Company paid claimant his proper disability rate and certainmedical expenses. During approximately the next 18months the claimant sought additionalmedical assistance forhis injury and underwent two operations. By June, 1977, the Insurance Company was refusing to pay certainmedical expenses incurred by claimant. They also refused topay claimant's full disability rate. As a result, claimant filed a petition for an emergency hearing before the Workers' Compensation Court. That Court entered findings of fact, conclusions of law and judgment in claimant's favor. The judgment awarded attorney fees and costs to claimant pursuant to section92-616, R.C.M. 

### 1947 [now section 39-71-611, MCA]. Claimant's attorney submitted a statement to the Workers' Compensation Court claiming attorney fees and costs incurred inthe case totaling $3,355.19. Subsequently, the Insurance Company filed a petition requesting a hearing on the question of attorney fees. A 

### hearing was held before the Workers' Compensation Court for the limited purpose of hearing arguments on whether a hearing

on attorney fees should be granted. The Workers' Compensation Court entered an order grantingHorton's motion for leave toverifyhis previously filed statement for attorney fees and costs, and denied the Insurance Company's motion for an evidentiaryhearing prior to an award of attorney fees and costs.This appeal followed. The sole issue, as framed by appellant Insurance Company, iswhether the 1979 amendment to section 39-71-611, MCA, providing that attorney fees shallbe established by the Workers' Compensation judge instead of the Division of Workers' Compensation requires the opportunity for an evidentiaryhearing, including sworn testimony and cross-examination prior to the judicial determination and award of attorney fees. In 1979, section39-71-611, MCA, was amended. Prior to the amendment this statute read: "In the event the insurer denies the claim for compensation or terminates compensation benefits, and the claim 

### is later adjudged compensable, by the division or on appeal,

# the insurer shall reasonable 

## & attorneys' 

## -- fees as established

### by

# - the division..." (Emphasis added.) After the amendment this statute read: "In the event an insurer denies liability for a claim for compensation or terminates compensationbenefits and the claim is later adjudged compensable by the workers' compensationjudge or on appeal,

# the insurer shall 

### pay reasonable costs

## & attorneys' 

## -- fees as established

### by

# the workers' compensation judge." (Emphasis added.)

For the purposes of this case, the only pertinent distinctionbetween this statute as it existed prior to the amendment and after the amendment 

### is the substitution of "workers' compensationjudge" for "division." In 1978, prior to the amendment, this Court decided the

case of Smith v. Pierce Packing Co. (19781, Mont.-9 58

### 1 P.2d 834, 35 St.Rep. 979. In Smith, as in the present case, the appellant contended that an award of attorney fees was improper for the reason that no evidence of such fees was adduced before the Workers' Compensation Court. InSmith, as in the present case, the appellant cited Crncevich v. Georgetown Recreation Corp. (1975), 168Mont. 113, 541 P.2d 56, for the propositionthat evidence must be introduced in the District Court to demonstrate the proper amount of attorney fees. This Court's response to the appellant's contention inSmith was as follows: "Further, claimant argues that no evidence per seof attorney fees need be presented in a workers' compensation case, as the procedure entails submission of a verified petition to the division, setting forth the number of hours spent and services performed. The division administrator then reviews the petition and sets a 'reasonable fee'. We concur." Mont.-9 581 P.2d at 838, 35 St.Rep. at 984. Inotherwords, the rules pertaining to attorney fees as enunciated inCrncevich do not apply inworkers' compensation

cases. Inthe present case, the appellant contends that the amendment to section 39-71-611, MCA, requires us to overrule Smith and apply the Crncevich rule toworkers' compensation

cases. We decline to sohold. The amendment, noted above, merely changes the party who sets the reasonable fee. The amendment to section 39-71-611, MCA, does not change the Smith decision. The statuteboth before and after the amendment does not require an evidentiaryhearing todetermine attorney fees inworkers' compensation cases. The method used to fixattorney fees 

### is discretionary with the Workers' Compensation judge, and the matter of allowing a hearing concerning attorney fees 

### is alsodiscretionary. The failure to allow such a hearing is not per se an abuse of discretion. In the present case, the appellant's only allegation of abuse of discretion

### is the failure toprovide a hearing on attorney fees. Sincewe hold that such a hearing 

### is not required for workers' compensation cases, the Workers' Compensation Court 

### is affirmed. Affirmed.
Chief Justice