No. 90-518 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

DOLORES JAENISH, Claimant and Appellant,

SUPER 8 MOTEL, Employer, and EBI/ORION GROUP, 

### MAYY

### kS 

### 1991

Defendant, Respondent and Cross-Appellant.

APPEAL FROM: The Workers1 Compensation Court, The Honorable Timothy Reardon, Judge presiding.

COUNSEL OF RECORD: For Appellant: Dolores Jaenish, Pro Se, Bozeman,Montana For Respondent: Steven S. Carey; Garlington, Lohn & Robinson, Missoula, Montana

Filed: Submitted on Briefs: April 4, 1991 

### ..,,?Betided: May 30

### , 1991

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.. "ClerkJustice John Conway Harrison delivered the Opinion of the Court.

Dolores Jaenish and EBI/Orion Group appeal from a July 20, 1990, judgment of theMontana Workers1Compensation Court ordering EBI/Orion Group to be pay Jaenish 300 weeks of permanent partial disability benefits. We affirm. The parties present the following issues: 1. Was the court's determination of Jaenishlspermanent partial disability entitlement supported by substantial credible evidence? 2. Did the Workers1 Compensation Court err in denying Jaenishlsrequest to impose a twenty per centpenalty on EBI/Orion Group pursuant to 39-71-2907,MCA? 3. Did the Workers1Compensation Court abuse its discretion in reversing its assessment of costs and attorney's fees related to the continuation of the first trial after stipulation by the parties? Dolores Jaenish strained her back on January 24, 1985,while working as a maid and housekeeper for Super 8 Motel in Bozeman, Montana. She experienced severe back pain between her shoulder blades. Jaenish had received a back injury in an automobile accident in 1976which aggravateda childhoodarthriticcondition. Jaenish testified that since her injury in 1985 she had not worked and continued to experience chronic back pain and headaches related toher back condition. She took medications forpain, for stomach discomfort, and to help her sleep. Jaenish said that she

### had difficulty sleeping because the back pain would cause her to wake up during the night. Jaenish also testified that because of back pain shehad trouble doing certainhousehold chores, such as laundry and vacuuming,and could not sit for longperiods of time. Testimony was received from several physicians. A panel of doctors concluded that Jaenish had upper back pain of a muscular ligamentous nature. The physicians reported minimum findings of degenerative changes in Jaenishlsthoracic spine and determined that Jaenish had reached maximum medical healing from the episode of January 24, 

### 1985. The panel also concluded that Jaenish had a



### zero impairment rating based on the guidelines of the American Medical Association. EBI/Orion Group accepted liability for Jaenish s injury and paid medical benefits and permanent partial disability benefits. Prior to thehearings,Jaenishhad also received lump sum advances totalling $6,500. Jaenish claimed that EBI/Orion should be penalized forunreasonable delay inacting onher requests for lump sum advances. A hearing was held September 19, 1988, with Jaenish representing herself. At Jaenishls request, the trial was continued in order for Jaenish to obtain counsel. The court advised Jaenish that if a continuancewere granted, IttheCourt is going to consider imposition [on Jaenish] of the costs of the defendant and his witness being here today 

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### A second hearing was held on September 5, 

### 1989, with Jaenish represented

### by counsel. Thehearing examiner heard testimony from

### Jaenish and froma vocational consultantand evaluatorwho had been retained by EBI/Orion. Based on the evidence, the Workers' Compensation Court concluded that Jaenish was 60 

### per cent permanently partially disabled, and had reached maximum healing. The court ordered the insurer to pay 300 

### weeks of permanent partial benefits at the stipulated rate of $101.14

### per week. The court awarded attorney's fees to Jaenish for the amount recovered above the insurer's settlementoffer of $25,285. The courtalso concluded thatJaenish

was not entitled to a penalty since EBI/Orionlsdelay in paying advances to Jaenish was reasonable. From the judgment of the Workers1 Compensation Court, both parties appeal. I Was the court's determination of Jaenish'spermanent partial disability entitlement supportedby substantial credibleevidence? Jaenish contends that the evidence supports a determination that she is permanently totally disabled, rather than permanently partially disabled. Jaenishalsodisputesthecourt's findingthat shehad reached maximumhealing. E~I/~rion agrees with thecourt's conclusion that Jaenish is permanently partially disabled, but argues that the evidence was insufficient to support the court's finding of 60

### per cent disability. The standard of review in workers1 compensation cases is whether the court's findings and conclusions are supported by substantial, credible evidence. 

### Gaumer v. 

### Montana Department ofHighways (1990), 243 Mont. 414, 418, 795 P.2d 77, 79. We cannot substituteour judgment for thatof theWorkers1Compensation Court concerning the weight of the evidence on questions of fact. When substantial evidence supports the findings of the Workers1 Compensation Court, the decision cannot be overturned. Wood v. Consolidated Freightways,Inc. (Mont.1991), 808 P.2d 502, 504, 48

As a preliminarymatter,we note that no dispute exists about the sufficiency of the evidence supportingthe court's finding that Jaenish is "as far restored as the permanent character of her injuries will permit,I1 since at the second hearing her counsel stipulated tomaximum healinghaving been reached. Maximum healing triggers a reevaluation of the claimant's disability status as either permanently totally disabled or permanently partially disabled. Wood, 808 P.2d at 504, 48 St.Rep. at 307. Jaenish contends the evidence supported a determination that she is permanently totally disabled, rather than permanently partially disabled. Permanent total disability is defined as: [A] condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labormarket. Section 39-71-116(13), MCA (1983). To establish "no reasonable prospect of finding regular employment of any kind in the normal labor market1'the claimant must "'introduce substantial credible evidence of (1)what jobs constitute his normal labormarket, and(2) 

### a complete inability to perform the employment and duties associated with those jobs because of his work-related injury. If' 

### Metzger v. Chemetron Corporation (1984), 212 

### Mont. 351, 355, 687 P.2d 1033, 1035 (quoting Spooner v. ~ction Sales, Inc. (1983) I11 Workers1 Compensation Court Decisions No. 85). Once a claimant presents evidence demonstrating that no reasonable prospect of employment in his normal labormarket exists, the burden of proof shifts to the insurer to show that suitable work is available. Wood, 808 P.2d at 504, 48 St.Rep. at 307. Jaenish failed to introduce evidence of her normal labor market and evidence of a complete inability to perform the duties of employment constituting her labormarket. Although the burden did not shift to the insurer to show the availability of suitable work, EBI/Orion presented testimony of a vocational expert who established that Jaenishwas capable of performing several jobs in the Bozeman area. Substantial credible evidence supported the conclusionof the court that Jaenishwas capableofperforming work in her labormarket and had not demonstrated a complete inability to return to gainful employment as a result of her work-related injury. EBI/~rionagrees with the court's finding that Jaenish was permanently partially disabled, but claims that the evidence was insufficient to supportJaenishlsdisability rating of 60

### per cent. Jaenish elected to proceed under BS 

### 39-71-705 to -708, MCA (1983),which provided that the indemnity benefits granted I1shall be proportionate to loss or loss of use.I1 Factors to consider indetermining disability are the claimant's age, education, work experience, pain, and disability. Flakev. Aetna Life and Casualty Co. (1977), 175 Mont. 127, 129, 572 P.2d 907, 909. EBI/Orion contends that the evidence does not support the extent of disability determined by the court because Jaenish, at 38,had a substantial number of years left for gainful employment. Testimony of the vocational expert established that Jaenish's condition allowed her to return to work in positions paying approximately the same as she was receiving at the time of her injury. According to EBI/Orion, the medical evidence did not supportJaenish's claimsof the extent ofherpain. EBI/Orion also points to Jaenish's zero impairment rating. Our examination of the record reveals that the court specifically considered each of the required factors in reaching its determination that Jaenish was 60 per cent permanently partially disabled. The court cited Jaenish's testimony about the pain sheexperiences,andher limited activity, education,andwork experience to support its 60per centpermanent partial disability determination. We will not disturb the findings and conclusions of the Workers1 Compensation Court if the conclusions are supported by substantial evidence, even though conflicting evidence was presented. Gaumer, 243 Mont. at 418, 795 P.2d at 79. We hold that the Workers' Compensation Court relied on substantial, credible evidence in determining that Jaenish was 60 per cent permanently partially disabled and entitled to 300 weeks of permanent partialdisability payments at the stipulated rate.

Did the Workers1Compensation Court err in denying Jaenishls request to impose a twenty per cent penalty on EBI/Orion pursuant to 3 39-71-2907,MCA? The Workers1Compensation Court may impose a twenty per cent penalty for the insurer's refusal or delay in providing benefits: When payment of compensation has been unreasonably delayed or refused by an insurer 

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# . . the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits,may be increasedby the workers1compensation judge by 20%. The question of unreasonable delay or refusal shallbe determinedby theworkers1compensation judge 

# . . . . Section 39-71-2907, MCA (1983). Jaenish claimed that EBI/Orion unreasonably delayed in paying her needed lump sum advances. The Workers1Compensation Court refused toassessa twentyper centpenalty Itsince abona fidedispute existed and thedefendant's payment of a $7,000.00 advance was not unreasonable under Section 39-71-2907, MCA." As mandated by the statute, the issue of llunreasonable delay or refusal1' is a question of fact to be determined by the Workers1Compensation Court. Handlos v. Cyprus Industrial Minerals (1990),243 Mont. 314, 317, 794 P.2d 702, 704. The decision whether or not to exact a penalty pursuant to 3 39- 71-2907, MCA, will not be overturned if based upon substantial, credible evidence. Sharkey v. Atlantic Richfield Co. (1989),238 Mont. 159, 168, 777 P.2d 870, 876. After reviewingthe record, wehold that substantial,credible

### evidence supported the decision of theWorkers1compensation Court refusing to impose a twenty per cent penalty on EBI/Orion. I11 Did the Workers' Compensation Court abuse its discretion in reversing its assessment of costs and attorney's fees related to the continuation of the first trial after stipulation by 

### the parties? In the early stages of this case, Jaenish was repeatedly advised to retain counsel. At the firsthearing, when theWorkers' Compensation Court considered Jaenish's request for a continuance in order for her to obtain counsel, the court reminded Jaenish of the costs toEBI/Orion of appearingat the first hearing andwarned her that the court might impose those costs on Jaenish. This exchange followed: JAENISH: I spokewith my lawyer on Friday and told him of the situationand he suggested the continuance. He's willing and said he will pick up the case. HEARING EXAMINER: And the costs? JAENISH: Yes, he will pick up the costs. HEARING EXAMINER: The $1500 

### to Mr. Carey [EBI/Orionls counsel]? 

### JAENISH: I think so. EBI/~rionprotests the award of attorney's fees toJaenish on the ground that Jaenish, during the first hearing, agreed to pay EBI/Orionlscosts,includingattorney's fees, incurredat the first hearing. EBI/Orion requested that those costsof the firsthearing be 

### deducted from Jaenishls entitlement and later moved for reclarification of this issue. The Workers1 compensation Court 9denied both motions. We do not agree that Jaenish stipulated to paying attorney's fees and costs as EBI/Orion asserts. At the first hearing the hearing examiner, after the exchange quoted above, cautioned Jaenish that ''the Court is going to consider imposition [on Jaenish] of the costs of the defendant and his witness being here today and proceeding this far in the trial 

# . . . .I1 The hearing examiner stated in his ruling at the conclusion of the hearing: The question of costs of Mr. Carey and his witness and attorney fees will be presented to the Court for a separate consideration. Thus, the question of whether Jaenish would pay EBI/Orionlscosts

was not agreed upon or settled at the first hearing. As we read the record,Jaenish's agreement to pay EBI/Orionlscosts was only valid if so ordered by the Workers1Compensation Court. The Workers1CompensationCourt concludedthatJaenish'soffer to pay costs of the first hearing was unenforceable because an insurer is not entitled to attorney's fees and costs under the Workers1 CompensationAct. See North American Van Lines v. Evans Transfer & Storage (1988), 234 Mont. 209, 766 P.2d 220. In North American Van Lines we stated that the purpose of awarding attorney's fees to the claimant is to ensure that the injured worker receives the fullest recovery possible. North American Van Lines, 234 Mont. at 213, 766 P.2d at 223. The decision of the Workers1 Compensation Court refusing to award costs and fees of the first hearing to EBI/Orion is consistent with thepolicy ofproviding the injuredworkerwith thefull amount of compensation benefits available. We hold that the Workers1 Compensation Court did not abuse its discretion in refusing to award EBI/Orion the costs and attorney's fees incurred at the first hearing. Affirmed.

We concur: 

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~Hef Justice Justice