No. 79-112 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

CONTINENTAL INSURANCE COMPANY and 

RAYMOND CORCORAN TRUCKING, Employer, 

Defendant and Appellant, 

RICHARD B. HORTON, 

Claimant and Respondent. 

Appeal from: Workers' Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Pedersen, Herndon, Harper & Munro, Billings, Montana 

For Respondent: 

William T. Kelly, Billings, Montana 

Submitted on briefs: April 24, 1980 

Decided : JUL 22 1~ 

Filed: JUL 2 2 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 evidentiary hearing 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 in the 

course of his employment. Initially, the Insurance Company paid 

claimant his proper disability rate and certain medical expenses. 

During approximately the next 18 months the claimant sought additional medical assistance for his injury and underwent two 

operations. By June, 1977, the Insurance Company was refusing to 

pay certain medical expenses incurred by claimant. They also 

refused to pay 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 section 92-616, 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 in the 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 granting Horton's motion for leave 

to verify his previously filed statement for attorney fees 

and costs, and denied the Insurance Company's motion for an evidentiary hearing prior to an award of attorney fees and costs. 
This appeal followed. 

The sole issue, as framed by appellant Insurance Company, 

is whether the 1979 amendment to section 39-71-611, MCA, providing that attorney fees shall be established by the Workers' 

Compensation judge instead of the Division of Workers' 

Compensation requires the opportunity for an evidentiary hearing, 

including sworn testimony and cross-examination prior to the 

judicial determination and award of attorney fees. 

In 1979, section 39-71-611, 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 compensation benefits and the claim is later 

adjudged compensable by the workers' compensation judge 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 distinction between this statute as it existed prior to the amendment 

and after the amendment is the substitution of "workers' compensation judge" 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. In Smith, as in the present 

case, the appellant cited Crncevich v. Georgetown Recreation 

Corp. (1975), 168 Mont. 113, 541 P.2d 56, for the proposition 
that 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 in Smith was as follows: 

"Further, claimant argues that no evidence per 

se of 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. 

In other words, the rules pertaining to attorney fees as 

enunciated in Crncevich do not apply in workers' compensation 

cases. In the present case, the appellant contends that the 

amendment to section 39-71-611, MCA, requires us to overrule 

Smith and apply the Crncevich rule to workers' compensation 

cases. We decline to so hold. 

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 statute both before 

and after the amendment does not require an evidentiary hearing 

to determine attorney fees in workers' compensation cases. The 

method used to fix attorney fees is discretionary with the 

Workers' Compensation judge, and the matter of allowing a hearing 

concerning attorney fees is also discretionary. 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 to provide a hearing on attorney fees. 

Since we hold that such a hearing is not required for workers' 

compensation cases, the Workers' Compensation Court is affirmed. 

Affirmed. 

Chief Justice