No. 13359 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

JOHN KENNETH SKRUKRUD, 

Claimant and Appellant, 

GALLATIN LAUNDRY CO., INC., Employer, 

and 

EMPLOYERS COMMERCIAL UNION INSURANCE 

COMPANY, INSURER, 

Defendants and Respondents. 

Appeal from: District Eighteen, Workers'Compensation Court 

William E. Hunt, Judge presiding 

Counsel of Record: 

For Appellant : 

Morrow, Nash and Sedivy, Bozeman, Montana 

James H. Morrow argued, Bozernan, Montana 

For Respondents : 

Keefer and Roybal, Billings, Montana 

Neil S. Keefer argued, Billings, Montana 

Submitted: October 19, 1976 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by an injured employee from the findings 

of fact and conclusions of law of the workers' compensation court 

in favor of the employer and its insurer. In substance, the workers' 

court held that the injured employee's proper category of disability was "temporary total disability"; that his compensation 

was fixed in amount and duration by such classification until 

further order; that a statutory offset for social security disability applied to his workers' compensation benefits; that he 

was not entitled to a lump sum settlement from the insurer; and, 

that his workers' compensation benefits were to cease when he 

attains the age of sixty-five. 

The relevant facts are shown by the record: John Kenneth 

Skrukrud, claimant, was injured in an automobile accident in 

October 1972, while in the course and scope of his employment 

with Gallatin Laundry Company, Inc., employer. Employer was 

enrolled under Plan I1 of the Workmen's Compensation Act as it 

existed in 1972; Employers Commercial Union Insurance Company 

was its insurance carrier. Claimant was single with no dependents 

at the time of the accident. 

As a result of his injury, claimant received chiropractic 

treatments and medical attention. He continued to work until 

March 8, 1973, when he was referred to an orthopedist. Thereafter 

he was hospitalized and received surgery for a herniated cervical 

disc and fusion of cervical vertebrae, and was twice again surgically treated for vertebrae fusion. Claimant has not worked since 

March 8, 1973, and continues to receive frequent medical attention. 
Claimant has been receiving federal social security 

disability benefits from April 1973, to the present. 

In May 1975, claimant made settlement with the United 

Statesgmennnent in compensation for the injuries he sustained 

in October 1972. The insurer has been partially satisfied 

as to its subrogation rights under section 92-204, R.C.M. 1947, 

as it existed in 1972. There is no dispute as to insurer's 

continuing right to subrogation to claimant's settlement. 

Insurer has been paying bLweekly compensation to claimant 

effective since March 1973, based upon the classification of 

claimant's injury as "temporary total disability". Initially 

these payments were $50 per week, then corrected to $55 per week. 

However, when insurer established that claimant was receiving 

social security disability benefits, it reduced its weekly workers' 

compensation benefits by offsetting fifty percent of his weekly 

social security benefit against the payments made under workers' 

compensation. This was done pursuant to section 92-701, R.C.M. 

1947 as it existed in 1972 (Sec. 1, Ch. 174, Laws 1971), which 

section pertained solely to compensation for injury producing 

temporary total disability. The effect was to reduce claimant's 

workers' compensation benefits by almost half. As a result of 

the higher payments made to claimant prior to commencement of 

the offset reduction, insurer asserted it had overpaid claimant. 

In July 1975, the insurer requested a hearing before the 

workers' compensation court to resolve factual and legal disputes 

which had arisen between claimant and insurer. Hearing was had 

in September 1975 before Workers' Compensation Judge William E. 

Hunt in Bozeman, Montana. On March 2, 1976, the workers' court 

issued its findings of fact and conclusions of law which held as 
hereinbefore set forth. As no judgment or order was forthcoming, 

claimant appealed from the findings and conclusions to this Court 

pursuant to section 92-852(2), R.C.M. 1947. 

Claimant presents five issues for review: 

1. Did the workers' court err in finding that claimant's 

injury resulted in temporary total disability rather than permanent 

total disability? 

2. Did the workers' court err in its determination of 

claimant's pre-injury earnings? 

3. Did the workers' court err in refusing to order the 

balance of workers' compensation payments to be made in a lump 

sum settlement? 

4. Did the workers' court err in holding that claimant's 

workers' compensation benefits shall cease absolutely when he 

attains the age of sixty-five years? 

5. Do the various social security offset reduction provisions of Montana's workers' compensation laws violate the state 

and federal constitutions? 

A determination of issues one through four requires this 

Court to review the record, findings and conclusions of the 

workers' court. This is the first appeal from the workers' compensation court to be reviewed by the Supreme Court. The law as it 

applied to judicial review of Workmen's Compensation Division 

decisions prior to July 1, 1975 is summarized in Miller v. City 

of Billings, - Mont . , 555 P.2d 747, 749, 33 St.Rep. 984, 

986 : 

"The findings and decision of the Workmen's Compensation Division are presumed to be correct and if 

supported by credible evidence must be affirmed. Section 

92-822, R.C.M. 1947 (since repealed; Birnie v. United 
States Gypsum Co., 134 Mont. 39, 44, 328 

P.2d 133; Hurlbut v. Vollstedt Kerr Co., Mont., 

538 P.2d 344,347, 32 St. Rep. 752, 755. The 

district court must affirm the Division order 

if the evidence does not clearly preponderate 

against its findings. Becktold v. Ind. Acc. Bd., 

137 Mont. 119, 125, 350 P.2d 383; Stordahl v. 

Rush Implement Co., 148 Mont. 13, 417 P.2d 95; 

3 Larson's Workmen's Compensation Law, Q 80.20. 

Section 92-834, R.C.M. 1947 (in effect in 1966, 

but since repealed), provided the district court, 

may upon good cause shown admit additional evidence. 

Section 92-835, R,C.M, 1947 (in effect in 1966, but 

since repealed), provided that if this additional 

evidence is substantial, the district court may be 

justified in reversing the Division even though 

the evidence adduced before the Division clearly 

preponderates in favor of its order. Murphy v. 

Industrial Accident Board, 93 Mont, 1, 16 P.2d 705; 

Hurlbut v. Vollstedt Kerr Co., supra. 

"Where the appeal to the district court is 

heard only on the Division's certified record or when 

the district court permits additional evidence to 

be introduced that is not important or adds nothing 

new to the case, the court is bound by the same 

rule of appeal which applies where the appeal is heard 

only on the certified record and the Division is entitled to a presumption the case was decided correctly. 

Kelly v. West Coast Construction Co., 106 Mont. 463, 

78 P.2d 1078; McAndrews v. Schwartz, 164 Mont. 402, 

523 P.2d 1379; Erhart v. Great Western Sugar Co., 

Mont., 546 P.2d 1055, 33 St.Rep. 302." 

See also: Kimball v. Continental Oil Co., Mont . -9 550 

Under the law as it now exists, this Court directly reviews the decision of the workers' court, section 92-852(2), 

R.C.M. 1947. The workers' court proceedings are administrative 

in nature and quasi-judicial, sections 92-852(1) and 82A-1016, 

R.C.M. 1947. The appropriate scope of this Court's review should 

be no different than it was under former law as expressed in 

above cited cases; that is, worker's court decisions will not be 

overturned if there is substantial evidence to support its findings 

and conclusions. 
With the foregoing in mind, we discuss the issues. 

With respect to claimant' s injuries, the workers' court 

made this finding: 

"* * * That the medical evidence viewed in its totality 

and particularly the report of July 7, 1975, from Dr. 

Robert C. Wood, neurosurgeon, with the Billings Clinic 

of Billings, Montana, claimant's Exhibit 5, wherein Dr. 

Wood states: 

"'It is my impression this man has the following 

diagnosis: 1. Postoperative anterior cervical disc 

removals and fusions x 3 with chronic residual neck and 

right arm pain. 2. Secondary severe cervical spine 

limitation of motion. 3. Functional weakness of both 

arms. 

"'This man is permanently disabled by his disease 

and his operations. These problems have rendered this 

man 100 percent permanently and totally disabled. 

Solidifying this patient's disability is his emotional 

reaction to the problem as he is obviously convinced in 

his own mind that he has been totally disabled and he 

will ever be so. 

"'I do not think there is a ghost of a chance of 

ever returning this man to gainful employment. He is 

certainly not an operative candidate due to his functional 

augmentation of his present problems; and, if anything, 

he has had more than his share of surgery already.' 

"Place claimant's disability under the category of 'temporary total disability,' for a period of time-not to 

exceed 300 weeks from date of injury, as provided by 

Section 92-701, R.C.M. 1947, as it provided on October 14, 

1972, * * *. That the emotional reaction complication 

to claimant's disability has not been determined to be 

permanent in nature and not subject to psychiatric treatment. That until this showing has been made to the satisfaction of this Court by either the claimant or the insurance 

carrier the proper classification for claimant's disability 

should be 'temporary total disability' * * *.I' 

The record, including Dr. Wood's report, does not sustain 

this finding. All that is necessary is to read the quoted portion 

of Dr. Wood's report. Dr. Wood was retained by insurer to examine 

claimant, and his "Attending Physician's" report unequivocally 

classified claimant as "100%", "permanently" disabled. claimant' s 

orthopedic surgeon stated several times that claimant should be 
considered unemployable for any kind of work. There is no 

evidence to contradict these matters of record. The fact that 

claimant's "emotional reaction" to his condition is "solidifying" 

to his problem does not warrant the workers' court to find that 

the problem is temporary; there is simply no evidence which 

supports any conclusion other than that claimant was found by 

insurer's own choice of doctor to be permanently totally disabled 

as a result of his injuries. 

Because the workers' court erred in placing claimant in 

the category of "temporary total disability", its conclusion of 

law number 2, that claimant's disability was governed by section 

92-701, R.C.M. 1947, is error. At the time of claimant's injury, 

section 92-702, pertaining to permanent total disability, was in 

effect and is controlling in this case. Upon remand, the workers' 

court shall apply the provisions of section 92-702, as it existed 

in 1972, to determine claimant's proper compensation rate. 

Claimant's second issue concerns the workers' court determination of claimant's pre-injury earnings. Inasmuch as we have 

held that former section 92-702 applies to his rate of compensation, 

this question becomes moot. Under either claimant's or insurer's 

calculations, claimant is entitled to the same statutory maximum 

of compensation for the 500 week period provided in section 92- 

702, R.C.M. 1947, in 1972. 

Claimant's third issue concerns his request in writing 

that he be awarded a lump sum settlement for the balance of his 

compensation, as authorized in former section 92-715, R.C.M. 1947. 

The workers ' court found claimant had demonstrated no financial 

need for such settlement. In view of the fact that section 92-715 

vested the Industrial Accident Board (now the Workers' Compensation 
Division) with discretion in matters of settlement, and there 

is substantial evidence to support the court's finding, we see 

no reason to reverse the workers' court finding; if good cause 

later appears for such a settlement, the Workersr Compensation 

Division has continuing authority to so order. 

Claimant's fourth issue concerns the worker's court 

decision that when claimant attains age sixty-five in January 

1977, and his social security disability payments automatically 

convert by operation of federal law into equal social security 

retirement payments, claimant is deemed by federal law to have 

completely withdrawn from the regular labor market and is therefore no longer entitled to any workers' compensation benefits under 

state law. That is, removal from the labor market terminates 

the state's obligation to compensate one who is no longer a 

member of the federally recognized labor force; or, as insurer 

states in its brief, "compensation ceases when the fact of 

inability to earn in the open labor market ceases." It is 

difficult to determine from the workers' court findings or from 

the insurer's brief and argument whether this position is related 

to the statutory offset for social security benefits under 

section 92-701, R.C.M. 1947, or whether it is urged as a general 

proposition relating to all workers' compensation beneficiaries. 

In either case, however, it is clear the workers' court erred. 

No authority is cited, and we have found none, for the flat 

proposition that workers' compensation benefits terminate upon 

retirement. 

Insurer asserts this practice is suggested by the statutory 

framework of Montana's Workers' Compensation Act because workers' 
compensation is compensation for loss of earning capacity and 

retired persons do not have earning capacity. The superficial 

logic of this argument is overcome by the specific statute applicable in the instant case. Section 92-702, R.C.M. 1947, as 

effective in 1972, provided the rates of compensation for permanent 

total disability and stated in part: 

"* * * Such compensation shall be paid during the 

period of disability, but for the period not exceeding five hundred (500) weeks from the date of 

injury. * * *I1 

No provision is made for early cessation of benefits, if the 

injured employee reaches retirement age before the running of 

the 500 week period. Obviously, the legislature would have 

included such an important provision if it had so intended the 

statute to operate. In construing a statute, courts cannot insert 

what has been omitted. Section 93-401-15, R.C.M. 1947; Dunphy 

v. Anaconda Co., 151Mont. 76, 438 P.2d 660 and cases cited 

therein. Therefore, claimant's workers' compensation benefits 

shall not terminate when he attains the age of sixty-five. 

Finally, claimant asks this Court to rule on the constitutionality of the social security offset reduction provisions of 

sections 92-701 (now repealed), 92-701.1 and 92-702.1, R.C.M. 

1947. We have determined that section 92-701 is inapplicable to 

this case; and, the latter two sections were not enacted until 

after claimant's injury and were not relied upon by the workers' 

court. Therefore, the constitutional question is not in issue 

and this Court will not decide such questions when not necessary 

to its decision. Taylor v. Taylor, 167 Mont. 164, 537 P.2d 483, 

32 St.Rep. 575; Montana State University v. Ransier, 167 Mont. 149, 

536 P.2d 187, 32 St.Rep. 569, and cases cited therein. 
This case is remanded to the workers' court with directions to enter a finding to the effect that claimant is permanently 

totally disabled, and that his compensation shall be paid over a 

period of 500 weeks from the date of injury. There shall be no 

reduction of workers' compensation benefits for social security 

payments received by claimant since April 1973, and benefits 

shall not cease when claimant attains age sixty-five. Past payments to claimant shall be adjusted in conformity with the law. 

Reversed and remanded with directions. 

. Justice 

Concur: 

Qi?t?t/!LL- Hon. Jack L. Green, District 

Judge, sitting for justice 

Wesley Castles.