No. 88-250 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

LAVERN GARMANN , 

Claimant and Appellant, 

-vsE.R. FEGERT CO., 

Employer, 

and 

EMPTJOYERS INSURANCE COMPANY OF WAUSAU, 

Oefendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lloyd E. Hartford, Billings, Montana 

For Respondent: 

L. Randall Bishop; Bishop & Jarussi, Billings, Montana 

Submitted on Briefs: Sept. 1, 1988 

Decided: November 3, 1988 

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Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Claimant and appellant, Lavern Garmann, appeals the 

denial to reopen the case for reconsideration of attorney 

fees by the Workers' Compensation Court, Honorable Timothy 

Reardon presiding. 

We decide that the issue to be determined is whether 

appellant's failure to appeal in a timely fashion prohibits 

the Supreme Court from hearing the case for lack of 

jurisdiction. 

Lavern Garmann suffered multiple injuries while working 

for E. R. Fegert Co., in Zortman, Montana. The injuries 

sustained by Garmann included fractures of the pelvis, ribs, 

lumbar spine and nerve damage to the upper right extremities. 

Fegert's insurer, Employer's Insurance Company of Wausau, 

paid temporary total disability benefits to the claimant from 

the date of the injury, March 21, 1981, through December 6, 

1982. Permanent partial disability benefits were paid from 

December 7, 1982, through April 20, 1983. When Wausau 

learned that Garmann has returned to work as a front-end 

alignment mechanic, it suspended benefits. Benefit payments 

were reinstated on January 27, 1984, when the insurer received notice that claimant was not physically able to continue work. 

From the trial of February 4, 1985, Judge Reardon's 

findings of fact, conclusions of law and judgment were filed 

on April 22, 1986. Judge Reardon stated that claimant was 

entitled to reasonable attorney fees and costs pursuant to 

S 39-71-612, MCA. The attorney fees award was to be calculated as set forth in 39-71-614, MCA (1985). The judgment 

also stated that the parties had twenty days in which to 

request a hearing from the findings of fact, conclusions of 

law and judgment. On May 12, 1986, the claimant filed 
objections to the Workers' Compensation Court's findings of 

fact, conclusions of law, and judgment and requested a new 

hearing. The request was denied on July 1, 1986. 

On July 22, 1986, a hearing to consider reasonable 

attorney fees was held. At the hearing, the claimant's 

attorney alleged that $225 was his normal billing rate and 

that he had spent 160 hours on the case, totaling $36,000. 

Defendant contended that a more reasonable billing rate was 

$85 per hour. In an order filed on July 30, 1986, the court 

settled on $85 per hour multiplied by 160 hours and awarded 

$13,600 to the claimant's attorney. Claimant also received 

costs equaling $1,628.25. 

A Satisfaction of Order Awarding Attorney Fees was 

filed on August 20, 1986, signed by Garmann's attorney. 

The case was appealed to the Supreme Court on August 

20, 1986, and decided on April 21, 1987. The issues were: 

(1) whether the claimant was entitled to a lump sum in benefits, and (2) whether a 20 percent penalty should be imposed 

against the insurer for terminating the claimant's benefits. 

However, no issue of attorney fees was raised. 

Nearly two years after the original judgment by the 

Workers' Compensation Court and twenty months after the 

hearing to consider reasonable attorney fees, claimant petitioned to reopen the case for reconsideration of awarded 

attorney fees to which defendant objected, and on April 13, 

1988, was denied by the Workers' Compensation Court. The 

grounds for denying reopening the case was that the claimant 

was barred from petitioning by res judicata. After the July 

30, 1986, order awarding attorney fees, claimant failed t.o 

file for a new trial or hearing to discuss attorney fees 

within the twenty days required by Rule 2.52.344 of the 

Workers' Compensation Court Rules. Moreover, claimant failed 
to appeal the July 30, 1986, order to the Supreme Court 

within the thirty days required by Rule 5, M.R.App.P. 

Notice of appeal was filed on May 10, 1988. 

The sole issue is whether the claimant is barred from 

appealing because he failed to file a timely notice of appeal 

with this Court. 

Claimant's attorney had two opportunities to attack the 

Workers' Compensation Court's decision concerning attorney 

fees. First, once the findings of fact, conclusions of law, 

and judgment were issued, according to Rule 2.52.344(1) of 

the Workers' Compensation Court Rules (1983): 

A party to the dispute may request a new 

trial or a hearing to determine the 

reasonableness of attorney fees before 

the Court within twenty (20) days after 

the order or judgment is filed and, if 

any party submits a request, the order 

or judgment issued by the Court shall 

not be considered a final decision of 

the Court for appeal purposes. 

The judgment of the Workers' Compensation Court was filed 

April 22, 1986. Claimant petitioned the court for rehearing 

on May 12, 1986, within the required twenty days. This 

motion tolled the running of the statute until the court 

decided whether to grant a rehearing. On July 1, 1986, Judge 

Reardon denied the request for a new hearing. On July 22, 

1986, a hearing was held to decide reasonable attorney fees 

and the order awarding attorney fees was filed on July 30, 

1986. 

Second, Rule 5(a) (11, M.R.App.P. I states: 

In civil cases the notice of appeal 

required . . . shall be filed with the 

clerk of the district court within 30 

days from the date of the entry of the 

judgment or order appealed from, except 

that in cases where service of notice of 

entry of judgment is required by Rule 
77 (d) of the Montana Rules of Civil 

Procedure the time shall be 30 days from 

the service of notice of entry of 

judgment; . . . 

Claimant's attorney did not file for appeal concerning 

attorney fees within the requisite thirty days. We hold that 

we do not have jurisdiction to determine the issues brought 

on appeal by the appellant. Once the judgment was submitted 

by the court, claimant had thirty days in which t.o protest 

the final decision regarding attorney fees. 

There are a series of exceptions which are recognized 

in Rule 5, M.R.App.P., which suspend the time limitation for 

an appeal. As discussed in Rule 5 (a) (4) they are as folloclrs: 

(i) judgment notwithstanding the verdict under Rule 50(b), 

M.R.Civ.P.; (ii) Rule 52 (b) , M.R.Civ.P., motion to amend the 

decision or make additional findings; (iii) Rule 59, 

M.R.Civ.P., motion to alter or amend the judgment; or (iv) 

Rule 59, M.R.Civ.P., motion for new trial. Where these exceptions apply, the time for appeal for all parties runs from 

the entry of the order denying a new trial or granting or 

denying any other such motion. Rule 5 (a) (5) also allows the 

suspension of the running of the time for appeal in cases 

where excusable neglect or good cause is shown. 

The appellant in this case did not move for reconsideration of attorney fees in the Workers' Compensation Court or 

the Supreme Court until nearly two years after the court's 

decision. Neither did he move for any amendments of findings 

or new trial. Nor was there any showing of excusable neglect 

or good cause. 

It is clear that the Workers' Compensation Court is 

governed by the Montana Administrative Procedure Act by 

direct mandate of 5 2-4-623 (5), MCA, which states: "Parties 

shall be notified either personally or by mail of any 
decision or order." In Dumont v. Wickens Bros. Construction 

Co. (1979), 183 Mont. 190, 200, 598 P.2d 1099, 1105, we hel-d 

that a party appealing from a decision of the Workers' Compensation Court is entitled to the benefit of the provision 

of Rule 5, M.R.App.P., which states: 

. . . except that in cases where service 

of notice of entry of judgment is required by Rule 77(d) of the Montana 

Rules of Civil Procedure the time shall 

be 30 days from the service of notice of 

entry of judgment. 

In McMahon v. Anaconda Co. (Mont. 1981), 38 St.Rep. 1233 

(consolidated for purpose of appeal with a second appeal 

involving the same parties and reported in the Pacific Reporter as (Mont. 1984), 678 P.2d 661), we stated that there 

is no specific filing date of workers1 compensation decisions 

in the Workers' Compensation Court since the court has no 

judgment book. All decisions are sent to the Workers' Compensation Division. Rule 2.52.344, Workers' Compensation 

Court Rules. 

In the case on appeal, the claimant had twenty days 

after service of the order of July 30, 1986, granting attorney fees, within which to appeal to the Workers1 Compensation 

Court for a rehearing. In addition, claimant had thirty days 

within which to appeal to the Supreme Court from the same 

order. Claimant's attorney failed to appeal to the Workers' 

Compensation Court until February 17, 1988, and the Supreme 

Court until May 10, 1988. 

Failure to file timely notice of appeal from a Workers1 

Compensation Court proceeding prevents the Supreme Court from 

obtaining jurisdiction over the appeal. Rule 4 (a), 

M.R.App.P.; Dumont v. Wickens, 183 Mont. at 198-199, 598 P.2d 

at. L1.03-1104; McDonald v. McDonald (1979), 183 Mont. 312, 
313, 599 P.2d 356, 357; Price v. Zunchich (1980), 188 Mont. 

230, 234, 612 P.2d 1296, 1298. 

Affirmed. 

We concur: