No. 85-479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JOHN D. LASAR, 

Claimant and Appellant, 

-vsE.H. OFTEDAL & SONS, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Herndon, Harper & Munro; James G. Edmiston, Billings, 

Montana. 

For Respondent: 

Crowley Law Firm; Terry G. Spear, Billings, Montana 

Submitted on Briefs: March 21, 1986 

Decided: July 15, 1986 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

John D. Lasar, the claimant, appeals a judgment of the 

Workers' Compensation Court denying him an award of costs and 

attorneys1 fees. He does not appeal the denial of a lump sum 

award or the denial of an imposition of the 20% penalty made 

as part of the same judgment. We affirm. 

The claimant was injured in 1979 while employed by E.H. 

Oftedal & Sons, a Montana employer insured by the State 

Compensation Insurance Fund (defendant). The defendant paid 

temporary total disability wage loss benefits from the time 

of the accident. 

On November 30, 1984 the claimant petitioned for a 

hearing requesting that he be found totally and permanently 

disabled, that his benefits be converted to a lump sum, that 

a penalty be imposed on defendant, and that he receive 

attorneys1 fees and costs. The parties had a pre-trial 

conference with the hearings examiner on January 3, 1985. 

The defendant deposed the claimant the next day and conceded 

permanent total disability around January 17, 1985. The case 

proceeded to a hearing on February 5, 1985, on the remaining 

issues. The Workers' Compensation Court found the claimant 

was not entitled to a lump sum, a penalty, or attorneys' fees 

and costs in a judgment dated July 23, 1985. 

The claimant raises one issue on appeal: 

Whether the Workers' Compensation Court erred in 

denying the claimant an award of attorneys1 fees and costs. 

The claimant sought attorneys' fees and costs at the 

lower court level pursuant to S 39-71-611, MCA, and argues 

entitlement under 5 39-71-612, MCA, on appeal. The judgment 
of the Workers' Compensation Court does not specify which 

statute was the basis for the decision. We find the claimant 

is not entitled under either statute. 

Section 39-71-611, MCA, (1983) states: 

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 workers1 compensation judge or on 

appeal, the insurer shall pay reasonable 

costs and attorneys' fees as established 

by the workers' compensation judge. 

This is not a case where the insurer denied liability for a 

claim or terminated benefits. Thus, the claimant is not 

entitled to attorneys' fees and costs under this statute. 

See, Krause v. Sears Roebuck & Co. (1982), 197 Mont. 102, 641 

Section 39-71-612, MCA, (1983) states: 

(1) If an employer or insurer pays or 

tenders payment of compensation under 

chapter 71 or 72 of this title, but 

controversy relates to the amount of 

compensation due and the settlement or 

award is greater than the amount paid or 

tendered by the employer or insurer, a 

reasonable attorney's fee as established 

by the division or the workers' 

compensation judge if the case has gone 

to a hearing, based solely upon the 

difference between the amount settled for 

or awarded and the amount tendered or 

paid, may be awarded in addition to the 

amount of compensation. 

(2) When an attorney's fee is awarded 

against an employer or insurer under this 

section there may be further assessed 

against the employer or insurer 

reasonable costs, fees, and mileage for 

necessary witnesses attending a hearing 

on the claimant's behalf. Both the 

necessity for the witness and the 

reasonableness of the fees must be 

approved by the division or the workers' 

compensation judge. 

Under this statute, there are two conditions to an award of 

attorneys1 fees and costs where an insurer has paid or 
tendered payment of compensation. First, the amount of 

compensation must be in controversy and second, the amount 

awarded must exceed that paid or tendered. Here, the 

defendant conceded permanent total disability nearly three 

weeks before trial, before discovery or any new written 

documentation other than the claimant's deposition had been 

completed. Since the insurer agreed on the amount of 

compensation due, no controversy existed at trial and the 

amount awarded was the same as that agreed upon as due. 

Contrary to claimant's contention, this case is not "on 

all fours" with Krause, 197 Mont. 102, 641 P.2d 458. In 

Krause, the defendant took the position that the claimant was 

not permanently totally disabled because he refused to submit 

to surgery recommended by an examining physician. During its 

opening statement at the hearing, the defendant conceded 

permanent total disability for the first time. This Court 

held that, under S 39-71-612, MCA, the claimant was entitled 

to attorneys' fees and costs relating to his proof of 

permanent total disability. Here, three weeks before the 

hearing, after receiving only the claimant's deposition and 

no other discovery materials, the defendant agreed the 

claimant was permanently totally disabled. The claimant was 

not required to submit any proof on this issue at the 

hearing. Because of these differing circumstances, Krause is 

not controlling authority for the case at bar. We hold that 

the Workers' Compensation Court correctly denied the 

claimant's request for attorneys' fees and costs. 

The decision of the Court is 

affirmed. 

t 
We Concur: