No. 88-455 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

DAVID SCIUCHETTI, 

Claimant and Appellant, 

HURT CONSTRUCTION & BOLAND CONSTRUCTION, 

and STATE COMPENSATION INSURANCE FUND, 

Defendants and Respondents. 

APPEAL FROM: The Workers' Compensation Court, 

In and for the Area of Great Falls, MT, 

The Honorable Timothy W. Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. V. Bottomly, Bottomly Law Office; Great Falls, MT 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, MT 

Matthew F. Heffron, Assistant Attorney General 

Submitted on Briefs: May 11, 1989 

Decided: July 14, 1989 

. . Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Claimant appeals the decision of the Workers' Compensation Court awarding him disability benefits for a knee injury 

for the statutory maximum of 200 weeks. Claimant contends 

that he should have received 500 weeks of benefits at a 

minimum because his disability is attributable to his back in 

addition to his knee. Claimant also appeals from a subsequent order of the Workers' Compensation Court regarding 

attorney fees. We affirm the lower court's decision as to 

both disability benefits and attorney fees. 

The issues are: 

1. Did the lower court err in concluding that claimant 

has no impairment or disability of his back? 

2. Did the lower court err in its determination of 

attorney fees? 

3. Did the lower court err in denying a lump sum award 

of attorney fees for future benefits? 

Claimant was 35 years old at the time of trial and was 

employed as a heavy duty construction worker when he suffered 

two industrial injuries which culminated in his disability. 

The first injury occurred on November 19, 1983, while claimant was employed by Hurt Construction earning $11.30 an hour. 

While carrying a wall weighing approximately 250-300 pounds, 

claimant tripped and fell, causing the wall to strike his 

right knee. Under the weight of the wall, claimant testified 

that he wrenched both his knee and his back. 

Claimant went to the emergency room where he was treated 

by Dr. Adelman, who diagnosed acute low back syndrome. The 

claimant was next examined on March 21, 1984, by Dr. Avery, 

an orthopedic surgeon. Dr. Avery diagnosed the injury as a 

(1) probable tear medial meniscus right knee and a (2) recurrent thoracolumbar strain. He recommended that the claimant 
undergo knee surgery, although claimant testified that he 

resisted surgery at that time. Dr. Avery also examined 

claimant's back and found not only that the X-rays were 

normal, but also that his back had full range of motion. No 

treatment was prescribed. Claimant testified that he just 

"put up with the pain." In interpreting Dr. Avery's diagnosis, another orthopedic surgeon, Dr. Bloemendaal, described 

"recurrent thoracolumbar strain" as a "weakness that throws 

his back into spasm. It's something in that particular area 

that is very difficult to demonstrate by anything other than 

examination when they're in the acute phase. For example, 

X-rays of that area are normal, and that has been the case 

with Mr. Sciuchetti. He probably has a weak point up there. 

When he overdoes things, he gets muscle spasm." 

Following the 1983 injury, claimant decided to continue 

working in the construction field. The Workers' Compensation 

Court found that he did not see another doctor until he 

suffered his second industrial injury on August 13, 1984, 

while working for Boland Construction. This injury resulted 

in a broken right ankle and aggravation of the right knee. 

While the ankle was healing, claimant's treating physician, 

Dr. Bloemendaal, suggested that claimant undergo surgery on 

his knee. On November 27, 1984, the medial meniscus of 

claimant's right knee was removed. 

At the time he sought treatment for the second injury, 

claimant testified that he did not mention his back problems 

to Dr. Bloemendaal, nor did he state it as an injury on his 

claim for compensation. Regarding the connection between the 

1984 injury and claimant's back condition, the Worker's 

Compensation Court found that " (a) dispute exists as to 

whether or not the second injury also aggravated the claimant's back." 
Following the second injury, claimant received temporary 

total disability benefits of $277.00 per week from August 14, 

1984 to January 7, 1985 for the ankle injury. After January 

7, 1985, claimant received his maximum total disability rate 

of $286.00 per week for his injured knee. Claimant has not 

been regularly employed since the second injury. In July of 

1985, he filed a cause of action with the Workers' Compensation Court to determine the nature and extent of his injuries, whether he was receiving the correct temporary total. 

disability rate, whether he was entitled to a lump sum or an 

increased award as a penalty, and attorney fees. The Workers' Compensation Court concluded that claimant had reached 

maximum healing of his ankle with no impairment or disabili-- 

ty, and that his back had reached maximum healing in November 

of 1985 with no impairment or disability. The court also 

concluded that claimant's right knee had reached maximum 

healing on December 1, 1985, with a maximum seven percent 

impairment based on the testimony of Dr. Bloemendaal, and 

that as a result of the knee injury claimant could not return 

to his former employment as a heavy construction worker. The 

court determined that claimant was totally disabled pending 

completion of retraining, and ruled that if claimant failed 

to enter retraining, he would be determined permanently 

partially disabled. These determinations were based solely 

upon the injury to claimant's knee, with none of the disability premised upon the claimant's back problems. 

Pursuant to § 39-71-703, MCA (1983), the court calculated claimant's permanent partial disability benefit rate to be 

$143.00 per week for the maximum 200 weeks for a knee injury, 

thereby totalling $28,600. The court disallowed any lump sum 

payment or a 20 percent penalty, but did allow reasonable 

costs and attorney fees. 
On appeal, claimant challenges the sufficiency of the 

benefits awarded, alleging that it was error for the court to 

limit a finding of disability to his knee. Claimant also 

challenges the court's subsequent award of attorney fees. 

Did the lower court err in concluding that claimant 

suffered no impairment or disability to his back? 

After reviewing the deposition testimony of four medical 

experts, the Workers' Compensation Court made findings thereon and concluded that claimant's disability was limited to 

his right knee as a result of the two industrial injuries. 

Claimant argues that, in reaching this conclusion, the lower 

court considered only the medical testimony relating to 

"impairment," and completely ignored the medical testimony 

relating to back "disability." He contends that without 

findings relating to back disability, the lower court erred 

in attributing disability solely to claimant's right knee, 

and he should be entitled to 500 weeks of benefits. 

We note that impairment is but one factor of disability, 

and both terms are defined under the 1983 Workers' Compensation Act as follows: 

39-71-121. Disability defined. A worker is disabled when his ability to engage in gainful employment is diminished as a result of impairment, which 

in turn may be combined with such factors as the 

worker's physical condition, age, education, work 

history, and other factors affecting the worker's 

ability to engage in gainful employment. Disability is not a purely medical condition. Disability 

may be temporary total, permanent total, or permanent partial as defined in 39-71-116. 

39-71-122. Impairment defined. Impairment means 

any anatomic or functional abnormality or loss of 

bodily function. Impairment refers to functional 

use of the body and is a purely medical condition. 

Permanent impairment is any anatomic or functional 
abnormality or loss of bodily function after the 

maximum medical rehabilitation has been achieved. 

The anatomic or functional abnormality or loss must 

be considered stable by the physician at the time 

the impairment rating evaluation is made. An 

impairment rating is purely a medical determination. Impairment may or may not result in 

disability. 

In reviewing the lower court's determination of disability, this Court must determine whether sufficient evidence 

exists to support that conclusion. Linton v. City of Great 

Falls (Mont. 1988), 749 P.2d 55, 61, 45 St-Rep. 68, 74. 

Claimant points out that because all of the medical testimony 

in this case was by deposition, this Court is in as good a 

position as the Workers' Compensation Court to judge the 

weight to be given that testimony, citing Snyder v. San 

Francisco Feed & Grain (Mont. 1987), 748 ~.2d 924, 929, 44 

St.Rep. 2216, 2224. While that standard of review is correct, this Court will nevertheless uphold the lower court if 

there is substantial credible evidence to support its conclusion. We note that in Snyder, the conclusion of the Workers' 

Compensation Court was found to be "in stark contrast with 

the evidence presented at trial," and the case was reversed. 

In this case, the relevant findings made by the lower 

court regarding the medical evidence presented on claimant's 

back disability and impairment are as follows: 

9. The claimant was working for Hurt Construction 

when he injured his right knee and low back on 

November 29, 1983. He went to the emergency 

room and was treated by Dr. Adelman, who 

diagnosed the claimant as having acute low 

back syndrome. 

10. The claimant was next examined by Dr. Avery on 

March 21, 1984. He found that his back x-rays 

were normal and that the claimant's back had 

full range of motion. He did not prescribe 
any treatment for the claimant's back at that 

time. 

The claimant did not see another doctor until 

he suffered his second industrial injury when 

he fractured his right ankle while working for 

Boland Construction on August 13, 1984. The 

claimant did not mention a back problem to his 

treating physician Dr. Bloemendaal, nor did he 

state it as an injury on his claim for compensation. It was not mentioned in his claim for 

compensation. (Exhibit 3 at 2) or the Employer's First Report. 

14. It is agreed by all medical experts that the 

claimant's back reached maximum medical healing in November of 1985. 

15. Claimant's treating physician, Dr. 

Bloemendaal, testified that he did not treat 

the claimant's back and found no back impairment. Dr. Schutte testified that the claimant's back last "went out" in 1984, but there 

was no back impairment in January, 1986. Dr. 

Hinde reported that there had been no progression in the back pain and that it was stable, 

so he did not address the issue. 

25. The claimant has no impairment of the back. 

Having reviewed the record, we conclude that these 

findings accurately reflect the medical testimony presented 

and are not clearly erroneous. Tenderholt v. Travel Lodge 

Intern. (Mont. 1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 

1794. However, claimant contends that these findings are 

inadequate based upon additional medical evidence which he 

claims clearly establishes that his back bars him from laboring activities. In essence, claimant requests that this 

Court make additional findings regarding disability which are 

not confined to "impairment." Claimant refers us to several 

statements made by the medical experts which he contends the 

lower court overlooked in reaching its conclusion. 
First, claimant contends that although his treating 

physician, Dr. Bloemendaal, rendered a conclusory opinion of 

no back impairment, the fact that he prescribed drugs for 

back pain over a considerable period of time is evidence of 

back disability. The record indicates that it was the claimant who stated that he was given muscle relaxants by Dr. 

Bloemendaal. The doctor himself, however, testified that he 

did not recall ever prescribing anything to the claimant for 

his back. He further testified that he did not recall ever 

treating claimant's back in any manner. Claimant's assertion 

on this point is therefore not supported by the record. 

Claimant also contends that Dr. Bloemendaal's testimony 

establishes that claimant is unable to work in heavy construction because of his back condition. The record indicates that Dr. Rloemendaal did not attribute the upper back 

problems to either of the accidents involved in this action, 

nor did he testify that claimant could not perform heavy 

construction work because of his back. Given this lack of 

conclusive evidence, we hold that the Workers' Compensation 

Court did not err in its refusal to find that claimant cannot 

work in construction because of his back. 

Next, our attention is directed to the testimony of Dr. 

Hinde, a physiatrist who examined the claimant at the request 

of claimant's counsel in November, 1985. Claimant argues 

that Dr. Hinde's testimony establishes objective manifestations of pain and loss of motion in his back, thereby justifying a finding and conclusion of back disability. The 

doctor's notes state that: 

I did document some mild limitation of internal and 

external rotation of the shoulders, and that these 

maneuvers did produce mild discomfort in the area 

of the mid-thoracic spine at the level of T6, T7. 

He also reported some tenderness to my palpation of 

the paraspinal structures in this location. 
Claimant told Dr. Hinde that his back problems stemmed 

from an injury which occurred in 1976 while lifting some 

heavy pipes. Dr. Hinde did not attribute the back condition 

to either of the accidents involved in this action. He 

testified that the scope of his examination was limited to 

"any disability which still related to injuries to his right 

knee and right ankle," and he did not attempt to tie the 

claimant's back problems to any specific injury. When considered with the whole of Dr. Hinde's testimony, we conclude 

that his notes indicating mild discomfort and mild limitation 

of rotation do not mandate a finding of pain and loss of 

motion to claimant's back, and that the lower court did not 

err in failing to make such a finding. Instead, the court's 

finding there was no loss of motion reflects the testimony of 

Dr. Bloemendaal. When the Workers' Compensation Court's 

findings are based on conflicting evidence, this Court's 

review is confined to determining whether there is substantial evidence on the whole record to support those findings. 

Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 

1189, 1192, 38 St.Rep. 1632, 1635. Having reviewed the 

record, we hold that a finding there was no loss of motion is 

supported by the evidence. 

Next, claimant asks that we reassess the testimony of 

Dr. Schutte, a specialist in sports trauma, who reviewed the 

medical records of Dr. Adelman, Dr. Avery, and Dr. 

Bloemendaal and rendered an opinion that claimant had no back 

impairment in January of 1986. Dr. Schutte testified that, 

"According to my records, the patient told me that his upper 

back continues to go out and that his back has been on and 

off in the interim." Claimant contends that it was error for 

the Workers' Compensation Court not to make a finding reflecting this testimony which would form a basis for a conclusion of back disability. Given the whole of Dr. Schutte's 
testimony and the other medical evidence, we conclude that 

the lower court did not err in its findings. Dr. Schutte 

examined claimant's back and found that it was within the 

normal range of flexion, extension, and lateral bending. He 

also took X-rays of his thoracic spine and found them to be 

normal. As with the three other medical experts, Dr. Schutte 

did not attribute claimant's upper back problems to either of 

the industrial accidents involved in this action. We hold 

that the lower court did not err in its findings. 

Finally, the claimant directs our attention to the 

deposition testimony of Dr. Pardis, a chiropractor who examined him in December of 1985 at the request of claimant's 

counsel. Dr. Pardis was asked to evaluate the current condition of the upper back based upon his 1985 examination of 

claimant and additional medical records compiled in 1978 when 

he treated claimant's back for a separate incident of injury. 

The claimant argues that, based on Dr. Pardis' testimony, the 

lower court should have found that he was required to leave 

the construction field because of his back. While Dr. 

Pardis' testimony establishes that heavy construction is not 

advisable given claimant's back condition, the back condition 

was not connected to any specific injury, let alone the two 

industrial accidents involved here. When asked to make the 

connection between the back complaints and the injuries, Dr. 

Pardis responded that "there's no way of tying it to a specific accident," and stated that different conditions such as 

spinal cord lesions, tumors, fractures, or dislocations could 

also mimic the symptoms of which claimant complained. We 

conclude that the lower court did not err in refusing to find 

that claimant was forced to leave construction due to his 

1983 or 1984 industrial accidents. 

Having reviewed the overall record, we conclude that 

claimant is attempting to have this Court substitute its 
judgment for that of the lower court based on isolated passages of testimony when, in fact, the lower court's findings 

are supported by the record and do not indicate that any 

testimony was overlooked or ignored. We conclude that the 

lower court's conclusion is not in stark contrast to the 

evidence presented at trial, as was the case in Snyder. We 

hold that the lower court adequately considered both "impairment" and "disability" in reaching its conclusion, and that 

there are no grounds for modifying the findings or conclusions reached in this case. 

11. 

Did the lower court err in its determination of attorney 

fees? 

In a subsequent hearing to determine reasonable attorney 

fees, the parties disputed whether fees should be paid on 

benefits received after claimant reached maximum medical 

healing, until the date he entered retraining pursuant to the 

court's order finding him permanently and totally disabled. 

The period in question runs from November 26, 1985 to November of 1987, during which time claimant received temporary 

total disability benefits. 

The Workers' Compensation Court disallowed attorney fees 

for that period based on McKinley v. American Dental Mfg. Co. 

(Mont. 1988), 754 P.2d 831, 45 St.Rep. 892. In that case, 

this Court stated that there are two conditions to an award 

of attorney fees under § 39-71-612, MCA (1983), which is the 

applicable statute in the present case: (1) the amount of 

compensation must be in controversy, and (2) the amount 

awarded must exceed the amount paid or tendered, citing LaSar 

v. Oftedal & Sons (Mont. 1986), 721 P.2d 352, 43 St.Rep. 

1938. Because claimant in this case was awarded the same 

amount of temporary total disability benefits as the State 
Fund was already paying, the Workers' Compensation Court 

determined that he was not entitled to attorney fees from 

November 26, 1985 to November of 1987. 

On appeal, claimant argues that this determination was 

in error because payment of benefits during that time (1) was 

a fact in controversy and were secured by the efforts of 

counsel, and (2) was not voluntary or unconditional because 

the State Fund fully expected to recoup any excess total 

disability payments had claimant been declared permanently 

partially disabled at the hearing. Claimant argues that 

these contentions form a basis for attorney fees not only 

under fj 39-71-612, MCA (1983), but under S 39-71-611, MCA 

(1983), as well because of defendant's denial of liability 

for payment of any benefits after November of 1985. 

Section 39-71-611, MCA (1983), only applies "[iln the 

event an insurer denies liability for a claim for compensation or terminates compensation benefits." Here, the Workers' Compensation Court found as an uncontested fact that 

"defendant accepted liability for claimant's injury and has 

paid weekly temporary total disability benefits to date." 

Therefore, S 39-71-611, MCA (1983), is inapplicable. 

Secondly, claimant's contention that payments were not 

voluntary or unconditional based on how the State Fund might 

have proceeded is pure conjecture and is not supported by the 

record. We hold that the Workers' Compensation Court did not 

err in determining that claimant was not entitled to attorney 

fees for the period from November, 1985 to November, 1987. 

111. 

Did the lower court err in denying a lump sum award of 

attorney fees for future benefits? 

The Workers' Compensation Court determined that lump sum 

attorney fees would be awarded on the permanent partial 
disability payments which were to be granted after claimant 

had completed his retraining period. However, the court held 

that lump sum attorney fees would not be awarded based on the 

total disability benefits paid out to claimant during his 

retraining program. The court based its determination on a 

finding that: 

[Ilt is questionable as to whether claimant will 

successfully complete the entire four years of his 

program. The Court draws this conclusion from the 

fact that claimant expressed little enthusiasm at 

the time of trial for the four-year computer science course. Therefore, claimant's counsel is 

entitled to 33 percent of all past paid total 

disability benefits in a lump sum but, thereafter, 

claimant's counsel is to receive his fee payment 

biweekly. 

This Court has held that a denial of lump sum attorney 

fees for future benefits which may never accrue is not an 

abuse of the lower court's discretion. Swan v. Sletten 

Construction Co. (Mont. 1986), 726 P.2d 1170, 1172, 43 

St-Rep. 1926, 1929. Despite this authority, claimant argues 

that a lump sum award is not precluded if it is warranted by 

the facts. He argues that the following facts distinguish 

this case from Swan and render the lower court's denial of 

lump sum attorney fees an abuse of discretion: 

(1) Claimant is in perfect health and is likely to 

live out his life expectancy; 

... 

(3) The fee agreement (drafted prior to Swan) 

reflects the traditional expectations that lawyers 

will receive their contingent fees in a single lump 

sum; 

(4) Denying lump sum fees in a case like the 

present case will discourage attorneys from representing needy claimants and will thereby frustrate 

the public policy of compensating injured workers. 

Despite these contentions, we hold that the Workers' 

Compensation Court's denial of lump sum fees was not an abuse 
of discretion. The reason for the court's denial was specifically stated in its order, and was based upon the court's 

observance of the character and demeanor of the claimant. 

The court reasoned that if claimant discontinued his training 

course, the remainder of the temporary total benefits for 

which claimant now requests a lump sum of attorney fees might 

never accrue. Such a determination is not an abuse of 

discretion. 

Affirmed. 

/ Cl-fief Justice 

Justices 
Mr. ~ustice William E. Hunt, Sr., dissenting: 

I dissent. I would reverse the Workers' Compensation 

Court and award the claimant disability for the injury to his 

back. /