NO. 89-457 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

MARK C. BALDWIN, Claimant and Appellant,

ORIENT EXPRESS RESTAURANT, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent.

APPEAL FROM: The Workers1Compensation Court The Honorable Timothy Reardon, Judge presiding

COUNSEL OF RECORD: ForAppellant: James C. Bartlett, Hash, O'Brien & Bartlett, Kalispell,Montana For Respondent: Oliver 

### H. Goe,Attorney at Law,Helena,Montana

Submitted on Briefs: March 1, 1990

Filed: Decided: April 26, 1990Justice Diane G. Barz delivered the Opinion of the Court.

Mark Baldwin appeals from the judgment of the Workers' Compensation Court denying him retroactive reinstatement of temporary total disability benefits; denying him an increase in award for unreasonable delay or refusal to pay; and denying his request for attorney's fees and costs. We affirm. Claimant was thirty-fouryearsold at thetime of thehearing. In 1984,while employed as a cook at the Orient Express Restaurant in Flathead county, claimant lifted a bucket of crabs weighing approximately fortypounds. As he twisted to kick the door open, claimant felt his back wrench. Claimant feltpain immediately in his back and by the following morning also experienced numbness in his legs. The Workers1 Compensation Court found the claimant suffered from right-sided sciatica and lowback pain stemming from

a disc protrusionprominent to the right side,at the L5-S1 level. Based on evidence given by claimant's treating physician, neurologistDr. Gary Cooney,and claimant's chiropractor,Dr. John Francis, the Workers' Compensation Court concluded claimant had reached maximum medical healing. The State Fund gave claimant fourteen days notice of termination of his temporary total disability benefits by letter dated October 19, 1988. After investigation, the State Fund terminated claimant'sbenefitsbased on his $100per month earnings

as treasurer/bookkeeper for Kokanee Construction; his employment for a one month period from June 15, 1985, to July 15, 1985, at Touch America, Inc; and newspaper accounts of claimant's self2employment venture growingmarijuana. Claimant filed an appeal of his conviction for criminal possession of dangerous drugs on February 28, 1989. We have since affirmed claimant's conviction. State v. Baldwin (Mont. 1990), P.2d 

### , 47 St.Rep. 614. Claimant'spetitionwasheardbeforetheWorkers1Compensation Court on February 22 and 23, 1989. The court entered its findings of fact, conclusions of law and judgment on June 30, 1989. In its findings,based "[ulpon observation of the claimantat the time of trial and a review of the entire record, the [clourt [found] claimant's credibility [was] questionable." The court further determined claimant was not entitled to reinstatementof temporary total disability benefits, attorney's fees, costs or penalty. Furthermore, the court held the State Fund was not entitled to reimbursement of benefits previously paid. Claimant raises two issues on appeal. 1. Did the lower courterrby denying claimant'spetition for retroactive temporary total disability benefits? 2. Was claimant entitled to attorney's fees, costs and an increase in award for unreasonable delay or refusal to pay? The State Fund urges this Court on appeal to reverse the Workers' Compensation Court's refusal to order claimant to reimburse it for benefits paid prior to termination. We will not reverse the ruling of the Workers1 Compensation Court absent a determination that its judgment lacks substantial credible supporting evidence. OIBrienv. Guaranty Fund Services (Mont. 1990)

## , P.2d I 

## , 47St.Rep. 251, 254. Weneednotconsider whether substantial credible evidence supports contrary findings. OIBrien,47 St.Rep. at 254. Temporary total disability on the date of claimant's injury

was defined as: [A] condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injurieswill permit. Section 39-71-116(19), MCA (1983). Claimant bears the burden of satisfying a two prong test: (1) injury resulting in a total loss of wages; (2) less than maximum medical healing. Claimant failed to meet that burden in the instant case. Both Dr. Cooney and Dr. Francis testified claimant had reached maximum medical healing prior to termination of his benefits on November 3, 1988. Claimant himself testified his condition had been stable for quite some time. Claimant offeredno evidence indicating thehealing processwas incomplete. His arguments otherwise are not persuasive. Although claimant had training, expertise and experience in

a variety of areas, he applied for only one job in the approximately four years between commencement of benefits and termination. Claimant had owned and operated several businesses, had trainingand experience inhotel/motel management and operation and had performed bookkeeping and clerical duties in previous employment. Vocational rehabilitation counselor Randy Kenyon characterized claimant's motivation to return to work as "reasonable. He emphasized claimant's commitment to self-employment despite numerous failures in such ventures prior to claimant's injury. Furthermore, claimantwas convicted of illegal possession ofdangerous drugs forhis operation of a sophisticated marijuana greenhouse requiring significant care and upkeep. The lowercourthad sufficientcredible evidenceupon which tobase its finding that claimant's loss of wages did not result from his injury

# . The Workers1 Compensation Court correctly concluded claimant was not entitled to retroactive or continuing temporary total disability benefits. Claimant on appeal assertshis right to continuing temporary total disability benefits pending a period of retraining. Because claimant raisesthis issue for the first time onappeal,wedecline to address thepropriety of an award of temporary total disability benefits pending a period of retraining. Ahmann v. American Federal Savings & LoanAss'n. (1988), 235Mont. 184, 195,766 P.2d

Section 39-71-611, MCA (1983),provides that: 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 shallpay reasonable costsand attorneys1fees as established by the workers1 compensation judge. Furthermore, 5 39-71-2907, MCA (1983), states: When payment of compensation has been unreasonably delayed or refusedby an insurer, either prior or subsequent to the issuance of an order by the workers' compensation judge granting a claimant compensationbenefits,the full amount of the compensation benefits due a claimant, between the time compensationbenefits 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 determinedby theworkers1compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein. In this case the Workers1 Compensation Court properly held that claimant was not entitled to temporary total disability benefits. Therefore,the StateFund did not unreasonably delay or refuse payment of compensation. The Workers1 Compensation Court did not err by denying claimantrecovery of attorney'sfees,costs and penalty. The State Fund contends the Workers1 Compensation Court erroneously refusedtocompel claimanttoreimburse it forbenefits previously paid. The State Fund did not file a cross-appeal on this issue, however. Although Rule 14, M.R.App.P. permits this Court to consider all possible errors arising in the lower court, the respondent must file a cross-appeal when seeking review of issues not raised by appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 334, 682 P.2d 695, 700. This construction of Rule 14,M.R.App.P. is applicable to appeals from judgmentsof theWorkers1CompensationCourt pursuantto 5 39- 71-2904, MCA (1983). That section provides: [A]n appeal from a final decision of the workers1 compensation judge shall be filed directly with the supreme court of Montana in the manner provided by law for appeals from the district court in civil cases.We therefore find the issue of reimbursementby the claimant is not properly before this Court and do not rule on the same. Affirmed.

We concur: Hi' Justice