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, 

MAY Y 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 3 0 , 19 9 1 

." . . 

" Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

Dolores Jaenish and EBI/Orion Group appeal from a July 20, 

1990, judgment of the Montana Workers1 Compensation 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 Jaenishls permanent 

partial disability entitlement supported by substantial credible 

evidence? 

2. Did the Workers1 Compensation Court err in denying 

Jaenishls request to impose a twenty per cent penalty on EBI/Orion 

Group pursuant to 39-71-2907, MCA? 

3. Did the Workers1 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? 

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 1976 which aggravated a childhood arthritic condition. 

Jaenish testified that since her injury in 1985 she had not 

worked and continued to experience chronic back pain and headaches 

related to her back condition. She took medications for pain, 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 she had trouble doing certain household chores, such as 

laundry and vacuuming, and could not sit for long periods 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 Jaenishls thoracic 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 the hearings, Jaenish had also received lump sum advances 

totalling $6,500. Jaenish claimed that EBI/Orion should be 

penalized for unreasonable delay in acting on her 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 continuance were granted, Itthe Court is 

going to consider imposition [on Jaenish] of the costs of the 

defendant and his witness being here today . . . . 11 

A second hearing was held on September 5, 1989, with Jaenish 

represented by counsel. The hearing examiner heard testimony from 
Jaenish and from a vocational consultant and evaluator who 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 

settlement offer of $25,285. The court also concluded that Jaenish 

was not entitled to a penalty since EBI/Orionls delay 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's permanent partial 

disability entitlement supported by substantial credible evidence? 

Jaenish contends that the evidence supports a determination 

that she is permanently totally disabled, rather than permanently 

partially disabled. Jaenish also disputes the court's finding that 

she had reached maximum healing. E~I/~rion agrees with the court'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 of 
Highways (1990), 243 Mont. 414, 418, 795 P.2d 77, 79. We cannot 

substitute our judgment for that of the Workers1 Compensation 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 preliminary matter, we note that no dispute exists about 

the sufficiency of the evidence supporting the 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 to maximum healing having 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 labor market. 

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 labor market, 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 labor market 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 labor market. 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 Jaenish was capable of performing several jobs in 

the Bozeman area. Substantial credible evidence supported the 

conclusion of the court that Jaenish was capable of performing work 

in her labor market and had not demonstrated a complete inability 

to return to gainful employment as a result of her work-related 

injury. 

EBI/~rion agrees with the court's finding that Jaenish was 

permanently partially disabled, but claims that the evidence was 

insufficient to support Jaenishls disability 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 in 
determining disability are the claimant's age, education, work 

experience, pain, and disability. Flake v. 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 

support Jaenish's claims of the extent of her pain. 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 she experiences, and her limited activity, education, and work 

experience to support its 60 per cent permanent 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 partial 
disability payments at the stipulated rate. 

Did the Workers1 Compensation Court err in denying Jaenishls 

request to impose a twenty per cent penalty on EBI/Orion pursuant 

to 3 39-71-2907, MCA? 

The Workers1 Compensation 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 . . . 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 increased by the workers1 compensation 

judge by 20%. The question of unreasonable delay or 

refusal shall be determined by the workers1 compensation 

judge . . . . 

Section 39-71-2907, MCA (1983). Jaenish claimed that EBI/Orion 

unreasonably delayed in paying her needed lump sum advances. 

The Workers1 Compensation Court refused to assess a twenty per 

cent penalty Itsince a bona fide dispute existed and the defendant'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 Workers1 Compensation 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 reviewing the record, we hold that substantial, credible 
evidence supported the decision of the Workers1 compensation 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 first hearing, when the Workers' 

Compensation Court considered Jaenish's request for a continuance 

in order for her to obtain counsel, the court reminded Jaenish of 

the costs to EBI/Orion of appearing at the first hearing and warned 

her that the court might impose those costs on Jaenish. This 

exchange followed: 

JAENISH: I spoke with my lawyer on Friday and told him 

of the situation and 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/~rion protests the award of attorney's fees to Jaenish on 

the ground that Jaenish, during the first hearing, agreed to pay 

EBI/Orionls costs, including attorney's fees, incurred at the first 

hearing. EBI/Orion requested that those costs of the first hearing 

be deducted from Jaenishls entitlement and later moved for 

reclarification of this issue. The Workers1 compensation Court 

9 
denied 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/Orionls costs 

was not agreed upon or settled at the first hearing. As we read 

the record, Jaenish's agreement to pay EBI/Orionls costs was only 

valid if so ordered by the Workers1 Compensation Court. 

The Workers1 Compensation Court concluded that Jaenish's offer 

to pay costs of the first hearing was unenforceable because an 

insurer is not entitled to attorney's fees and costs under the 

Workers1 Compensation Act. 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 the policy of providing the injured worker with the 
full 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: I/ 

.- C- 

~Hef Justice 

Justice