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 Workers1 Compensation Court 

The Honorable Timothy Reardon, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

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, 1990 
Justice 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-four years old at the time of the hearing. 

In 1984, while employed as a cook at the Orient Express Restaurant 

in Flathead county, claimant lifted a bucket of crabs weighing 

approximately forty pounds. As he twisted to kick the door open, 

claimant felt his back wrench. Claimant felt pain 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 low back pain stemming from 

a disc protrusion prominent to the right side, at the L5-S1 level. 

Based on evidence given by claimant's treating physician, 

neurologist Dr. 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's benefits based on his $100 per 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 self2 
employment venture growing marijuana. 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's petition was heard before the Workers1 Compensation 

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 claimant at 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 reinstatement of 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 court err by denying claimant's petition 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. OIBrien v. Guaranty Fund Services 

(Mont. 1990) , P.2d I , 47St.Rep. 251, 254. Weneednot 
consider 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 injuries will 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 

offered no evidence indicating the healing process was 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 training and experience in hotel/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, claimant was convicted of illegal 

possession of dangerous drugs for his operation of a sophisticated 

marijuana greenhouse requiring significant care and upkeep. The 

lower court had sufficient credible evidence upon which to base 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 asserts his right to continuing temporary 

total disability benefits pending a period of retraining. Because 

claimant raises this issue for the first time on appeal, we decline 

to address the propriety of an award of temporary total disability 

benefits pending a period of retraining. Ahmann v. American 

Federal Savings & Loan Ass'n. (1988), 235 Mont. 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 

shall pay reasonable costs and attorneys1 fees 

as established by the workers1 compensation 

judge. 

Furthermore, 5 39-71-2907, MCA (1983), states: 

When payment of compensation has been 

unreasonably delayed or refused by an insurer, 

either prior or subsequent to the issuance of 

an order by the workers' compensation judge 

granting a claimant compensation benefits, 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, 

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 State Fund did not unreasonably delay or 

refuse payment of compensation. The Workers1 Compensation Court 

did not err by denying claimant recovery of attorney's fees, costs 

and penalty. 

The State Fund contends the Workers1 Compensation Court 

erroneously refused to compel claimant to reimburse it for benefits 

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 judgments of the Workers1 Compensation Court pursuant to 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 reimbursement by the claimant is not 

properly before this Court and do not rule on the same. 

Affirmed. 

We concur: Hi' 

Justice