140. 81-228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

JOHN C. VAN DAVEER, 

Claimant and Respondent, 

STAUFFER CHEMICAL COMPANY, Employer, 

and NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBUHG, Insurer, 

Defendants and Appellants. 

Appeal from: Workers' Compensation Court 

Honorable William Hunt, Judge presiding 

Counsel of Record: 

For Appellants: 

James P. Harrington argued, Butte, Montana 

For Respondent : 

Keefer and Roybal, Biilings, Montana 

Neil S. Keefer argued, Biliings, Montana 

Submitted: June 21, 1982 

Decided: September 9, 1982 

Filed: "Ski-' .I ~982 
Mr. Justice John C. Harrison delivered the Opinion of the 

Court. 

Thls appeal arises from a July 25, 1980 judgment of 

the Workers' Compensation Court in which John C. Van Daveer, 

the claimant, was awarded additional temporary total 

disability benefits, an indemnity award for diminished earning capacity, penalty for late payment, and attorney fees. 

The employer's request for rehearing was denied by order of 

Aprll 16, 1981. 

On September 24, 1978, Van Daveer, while working a 

summer job as a switchman for Stauffer Chemical Company, 

fell from a railroad car and was crushed between the car and 

a brick wall. Van Daveer sustained a collapsed lung, six 

fractured ribs, and numerous other internal injuries. He 

underwent surgery and was hospitalized in intensive care for 

at least a week. 

After the injury, Van Daveer did not intend to return 

to Stauffer but rather planned to return to school to 

complete his degree. He discussed this intention with Dr. 

Bartlett, the only medical expert testifying in the case. 

On January 4, 1979, Dr. Bartlett released Van Daveer to 

resume "full, normal activities and duties." 

Van Daveer returned to school in January 1979 for 

wlnter quarter and testified that he continued to suff6r 

irom extreme pain. In mid-February Van Daveer developed a 

hernia at the site of the original incision. Corrective 

surgery was performed March 23, 1979, and Bartlett again 

released Van Daveer for full activity as of May 1, 1979. 

Van Daveer graduated from Montana State University in 

civil engineering in August 1979 and currently is employed 
wit.h the Mont.ana Power Company as an engineer. 

At the time of the accident, Van Daveer was paid 

$7.53 per hour for fort-y hours per week. His temporary 

total rate was $188 per week and his maximum permanent 

partial rat.e was $94 per week. 

Van Daveer properly gave Stauffer notice of his claim 

and filed for compensation. National Union Fire Insurance 

Company accept-ed liability for Van Daveer's injury, paid all 

medical payments due, and paid weekly temporary t-otal 

disability benefits t-hrough February 25, 1979. National 

then terminated all compensation and claimed an overpayment 

of $966.86 for payments made between January 3 and February 

25, 1979. 

National reinst.i tuted temporary tot.al disability 

payments on March 21, 1979, at the time of the hernia 

problem. It continued payments through Flay 1, 1979, 

deducting the claimed overpayment and making payment of 

$161.14 on September 28, 1979. 

Van Daveer claimed he was entitled to temporary total 

payments from the dat.e of his injury to August. 1, 1979, and 

to a further I1indemnit.y award." 

The case was submit-ted t-o the Workers ' Compensat ion 

Court on the pretrial order and briefs of counsel. The 

court concluded that Van Daveer would not have been 

physically fit to return to his old job with St.auffer on 

January 3, 1979, and t.hat he was entit-led to temporary tot-a1 

disability benefit-s from the date of injury to August 1, 

1979. 

The court. further concluded that residual effects of 

Van Daveer's injury limited his abi1it.y to obtain certain 
einployment as an engineer in the open labor market., and, 

therefore, he was ent.itled to an "indemnit.~ award" of 100 

weeks. 

The court computed temporary total compensation 

benefits from September 24, 1978, to August 1, 1979, at $188 

per week, less the amount already paid, for a total of 

$4,162.86. To that figure, the court added a 20 percent 

penalty for delay or refusal t.o pay compensation which 

amounted to $832.57. In addition, the "indemnity award" of 

100 weeks at $94 per week totaled $9,400. Each of these 

amounts was to be paid in a lump sum. 

Stauf fer and National petitioned for rehearing. The 

petition was denied April 16, 1981, and this appeal ensued. 

Four issues are before this Court on review: 

1. Whether the court's award of additional temporary 

total compensation benefits was supported by substantial 

evidence? 

2. Whether the court's indemnity award was supported 

by substantial evidence? 

3. Whet.her the court's imposition of a penalty was 

supported by substantial evidence? 

4. Whether the court erred in awarding attorney 

fees? 

AODITIOhAL BENEFITS 

The first issue to be considered is whether there is 

substantial evidence t.o support the award of additional 

disability benefits. If there is substantial evidence to 

support the Workers' Compensation Court, t~his Court cannot 

overturn that decision. Holton v. Stoltze (1981), - Mont . 
National argues the court's award of additional 

disability benefits was arbitrary and unsupported by 

substantial evidence. National points to t.he pretrial 

stipulation which states : "Thereafter, defendant.-insurer 

reinstituted temporary total disability payments on March 

21, 1979 when Claimant again became disabled because of a 

hernia problem . . ." (Emphasis added.) 

National argues t-hat this stipulation, in addition to 

Dr. Bartlett-ls full medical release of Van Daveer on January 

4, 1979, precludes a finding of disability bet-ween January 

and March 21, 1979. 

The court concluded t-hat since a hernia is caused by 

exertion, if the original surgery incision was herniating 

from the daily activities associated with attending school, 

it could not have been sufficiently healed t.o have allowed 

Van Daveer to return to his job at Stauffer in January. 

Dr. Bartlett testified that he knew, at the time he 

released Van Daveer for return t.o work, that Van Daveer did 

not intend to ret-urn to his job at Stauffer. Bartlett also 

stat-ed he was not familiar with the American Medical Associat-ion Rating Guides because he did not often make those 

det-errninations and his examination of Van Daveer was of the 

nature of a follow-up: 

. So, basically, Doctor, would it be fair 

to state that, really, at no time did you 

ever sit down with him and go through the job 

that he had at Stauffer- and say, 'All right, 

you can go do this today or you can do it 

next week'? 

"A. I didn't do that and had no intention of 

doing that. What I mean by t.he physical 

fitness of him was he was able to perform 

normal activities as stated in my lett-er. I 

did not go through and do a disability 

examination on him. I wasn't requested to. 

I was giving a follow-up." 
Van Daveer testified he experienced pain in his hips 

and chest after January 1979 which impaired his movement and 

would have prevented his return to work at Stauffer. He 

stated he believed he could not have returned to Stauffer, 

if he had ever intended to do so, until August 1, 1979. 

We find the court's determination of temporary total 

disability payments due Van Daveer from the date of injury 

to August 1, 1979, to be supported by substantial evidence. 

INDEMNITY AWARD 

In his petition for a hearing Van Daveer requested an 

"indemnity award," but did not specify the statute under 

which his request was made. The Workers' Compensation Court 

found that he suffers from residual effects of his injury 

which would "limit his ability to obtain certain employment 

as an engineer in the open labor market" and, therefore, 

made an "indemnity award of 100 weeks." 

This Court recently upheld a finding of 40 percent 

disability of the whole man by the Workers' Compensation 

Court. Holton v. Stoltze, supra. There, two physicians 

gave the claimant disability ratings--one 10 percent and the 

other 15 percent. The court, after considering the 

claimant's age, education, work experience, pain and 

disability, actual wage loss and loss of future earning 

capacity, found a 40 percent disability. Based on that 

determination, the court awarded claimant 200 weeks of 

benefits at $45 per week. 

Here, the court made no finding of a percentage of 

disability of the whole man or of any member of the body. 

In fact, it did not specify any basis for its 100-week 

determination, nor did it specify the statute under which 
the award was made. We find such an unexplained det-erminat.ion to be arbitrary, and we return this question to the 

Workers ' Compensation Court for more complete findings. 

PENALTY 

The next issue on review is whether a 20 percent 

penalty for unreasonable delay authorized by sect ion 39-71- 

2907, MCA, was warranted here. 

National paid Van Daveer temporary total payments 

from the date of injury through February 25, 1979, stopping 

the payments af ter receiving Dr. Bartlet.tls medical release. 

Van Daveer's hernia surgery and subsequent recovery required 

additional temporary t-otal payments. National made the 

payments from March 1, 1979 through May 1, 1979, when Dr. 

Bartlett again gave Van Daveer a medical release. Since Dr. 

Bart1et.t had originally released Van Daveer for work on 

January 5, 1979, National claimed an overpayment. of $966.86 

for payments made into February. It subtracted this 

overpayment from payments due from March through May and on 

September 28, 1979, paid Van Daveer t.he $161.14 remainder. 

Robert W. Keene, branch manager for the General 

Adjustment Bureau, testified via deposition that after the 

September payment, Van Daveer was owed nothing further . 

The court subsequently made Finding of Fact No. 20: 

"The posit-ion of the insurance carrier that 

claimant is entitled to absolut-ely nothing 

constitutes a delay or refusal to pay compensat.ion benefits so as to entit-le claimant t.o 

a 20% penalty as provided by section 39-71- 

2907, MCA." 

In his deposition, Keene stated that he based his 

position that Van Daveer was not entitled t.o further 

payments on Dr. Bartlett' s medical release. 

The penalty is authorized for "unreasonable delay or 
refusal to pay." Section 39-71-2907, MCA. The pendlty is 

not, however, intended to eliminate the right of an insurer 

to assert a legitimate defense. Steffes v. 93 Leasing Co., 

Inc. (1978), 177 Mont. 83, 580 P.2d 450. 

Based on the facts in this case, we find the court's 

imposition of the 20 percent penalty unsupported by substantlal evidence. 

"The triggering event for the purpose of awarding 

penalties for unreasonable delay or refusal to pay compensatlon is the insurer's receipt of medical verification of a 

compensable injury." Holton v. Stoltze (l981), - Mont . 

- , 637 P. 2d 10, 13, 38 St .Rep. 1835, 1838. 

Here, rather than a verification of compensable 

injury, the insurer received medical verification that Van 

Daveer was recovered and capable of returning to full duty 

as of May 1, 1979. 

Although, based on depositions taken nearly a year 

later, the court determined Van Daveer' s temporary total 

disability payments should have extended beyond that date, 

we find it was not unreasonable for the insurer to rely on 

the med~cal releases. We therefore reverse the court's 

imposition of a 20 percent penalty. 

ATTORNEY FEES 

Insurer1 s entire argument that attorney fees were 

improperly awarded is based on the premise that Van Daveer 

should not prevail on the other issues before the Court. 

The court awarded attorney fees. Section 39-71-611, 

MCA, provides for such an award: "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 workers' compensation judge or on appeal, 

the insurer shall pay reasonable costs and at-torneys' fees 

as established by the workers' compensation court." 

Here, the insurer did not deny 1iabilit.y but did 

terminate cornpensat-ion benefits on a claim which has been 

upheld as compensable. We, therefore, af f inn the court's 

award of reasonable costs and attorney fees. 

We remand this case to the Workers' Compensation 

Court for action in accordance with this opinion. 

Justices 
Mr. Justice Frank B. Morrison concurring : 

I concur in part, and dissent in part. This case need not 

be remanded as claimant is not entitled to an impaired earning 

capacity award. The record contains a total lack of evidence to 

support a finding that claimant suffered a 20% loss of earning 

capacity. The following evidence bears upon that question. 

DEPOSITION OF CLAIMANT: 

(PP* 16, 17, 18) 

"Q. Now, what type of work do you do all day 

now at the present time? 

"A. Like I said, most of the week, at least 35 

hours is desk work, is design work. And 5 hours 

a week is field work, which involves traveling 

and inspecting . "Q. Your degree from Bozeman is in Civil 

Engineering, is that correct? 

"A. Correct. 

"Q. You are employed by the Montana Power 

Company as an engineer? 

"A. Correct. 

"Q. And you are familiar, are you John, with 

the type of work that civil engineers do? 

"A. Yes, I am. 

"Q. You are able, I take it, to do your present 

job, is that correct? 

"A. That's correct. 

"Q. Are there some civil engineering jobs that 

you feel that you would be unable to do? 

"A. The area I would limit myself to would be, 

in fact, if I was to have a job that required a 

great deal of traveling possibly heavy 

construction . "Q. Can you tell the reason for that opinion? 

"A. I would say that I would be hesitant to do 

something like that because I really haven't 

tried to test the full capabilities of my physical well being as far as complete healing from 

the injuries. And I wouldnl t want to jeopardize 

myself or anybody else in such a situation where 
I might get hurt say if I was to be in the 

proximity of heavy construction and something did 

happen and I was called on to do something that 

required some heavy physical response . 

"Q. Are there any activities that you can't do 

now that you could do before your injury? 

"A. Not that I know of. I haven1 t tried alot 

of things afterwards." 

At page 36 of the deposition the claimant gave the 

following responses to questions propounded on cross-examination: 

Q. I mean in the field of civil engineering 

itself. Okay, putting aside the question of 

whether there was an accident involving heavy 

equipment and you being around and called to 

lift a vehicle off of somebody or something like 

that, but just in your field alone of civil 

engineering, there is nothing that requires any 

functions that you can't perform, is there? 

"A. The only area I would question myself in 

doing is possibly if I was on a large inspecting 

job which would require me to do alot of 

climbing for a long period of time. 

"Q. Other than that, the performance, there is 

nothing you could conceive of that you couldn't 

do, is there? 

The deposition of the treating physician was admitted. 

Dr. John D. Bartlett gave the following testimony: 

"Q. Okay, at the time that you examined him on 

January 4, 1979, did you form an opinion, based 

upon a reasonable degree of medical certainty, 

as to whether he had any impairment or disability from this accident at Stauffer Chemical 

Company? 

"A. I felt that he was physically fit for duty, 

yes. 

"Q. You felt that he was without any impairment 

or disability? 

"A. Yes ." 

The only testimony in the record to support a permanent 

disability award is claimant's testimony that he might limit himself in his work from having to do a "great deal of traveling and 

possibly heavy construction." There is not even self-serving 

testimony by the claimant that such a limitation would in any way 

affect his ability to earn in the future. Although it is preferable to call an employer, a supervisor, or some expert witness 
to establish that physicial limitations af fect earning capacity, 

some "substantial credibile evidence" could be provided by the 

claimant himself. In this record, even that support for the 

award is lacking. In fact, the only medical evidence in the 

record suggests that claimant has neither physical impairment nor 

disability. I do not agree with the suggestion in the majority 

opinion that a medical finding of percentage of "disability of 

the whole man or of any member of the body" is determinative of 

an issue involving impaired earning capacity . Nevertheless, the 

medical testimony in this record, when viewed in conjunction with 

claimant's testimony, does not support the finding of a 20% 

impaired earning capacity and therefore the finding should be set 

aside. 

I differ with the majority in remanding this case. The 

claimant simply failed in his effort to provide any evidence of 

impaired earning capacity and therefore that aspect of claimant's 

case must fail. The result of the majority opinion is to give 

claimant a second opportunity to provide evidence not produced 

initially. I know of no legal support for such action. 

I agree with the majority's position on the balance of 

issues. Based upon claimant's testimony there is some 

"substantial credible evidence" to support an award of temporary 

total disability payments to claimant until August 1, 1979. 

However, in light of the treating physician's finding that 

claimant could return to work in February of 1979, and notice 

thereof to the insurer, a penalty should not have been assessed 

against insurer for suspending temporary total payments. 

I would affirm the Court's award of additional temporary 

total compensation benefits, affirm the award of costs and attorney fees, and modify the judgment to exclude therefrom the award 

for loss of future earning capacity and penalty. 

.--, 
Mr. Justice John C. Sheehy concurring in part and dissenting 

in part: 

I concur with the majority in the resolution of the 

issues of temporary total disability payments, and attorney 

fees. I disagree with and dissent from the majority opinion 

insofar as it remands the indemnity award, and denies the 

worker's right to a penalty in this case. 

It distorts the record to say that there is no basis in 

the evidence and in the findings and conclusions for the 

indemnity award. (The indemnity award is for permanent partial 

loss of earning capacity.) 

At the outset, it is stated here as reinforcement that 

when the Workers' Compensation Court is considering an 

indemnity award, it need not consider as a determinative 

fact that the employee is earning as much or more money as 

he did before the injury. Fermo v. Superline Products 

(1978), 175 Mont. 345, 574 P.2d 251. Of course, if loss of 

earning capacity can be proven through an actual, post-injury 

loss of earnings, that is an item for the Workers' Compensation 

Court to consider. Walker v. H. F. Johnson, Inc. (1978), 180 

Mont. 405, 591 P.2d 181. It was settled in Shaffer v. 

Midland Empire Packing Co. (1953), 127 Mont. 211, 213-214, 259 

P.2d 340, 342, that the test of whether an injured worker is 

entitled to an indemnity award is not whether there has been 

a loss of earnings or income caused by the injury, but 

rather whether there has been a loss of earning capacity--a 

loss of ability to earn in the open labor market. 

The evidence in this case discloses that this injured 

worker has sustained a loss of ability to earn in the open 

labor market. This injury occurred when the employee, 

working as a switch man, was crushed between a brick wall 
and a moving train car. His injuries were found by the 

Workers' Compensation Court to be: "blunt trauma to the 

chest and abdomen; abrasion right lobe of liver; hemoperitoneum; contusion to left kidney with hematoma at base 

of gallbladder; hemopneumothorax of right lung; [and] fractured 

ribs 5 through 11 on the left." He was substantially and 

seriously injured. 

With respect to the worker's residual post-injury 

difficulties, the Workers' Compensation Court made findings 

that the worker has occasional discomfort on the left side 

of his chest due to the nature of the healing of his ribs; 

that when he sits for a long period of time, he experiences 

tiredness in his back and pain in his legs. The court also 

found that after his injury the worker received a degree in 

civil engineering from Montana State University and is 

employed as a civil engineer by the Montana Power Company. 

However, the worker's opportunity to work as a civil engineer 

is limited in that he can not accept a job that requires 

a great deal of traveling or that is involved with heavy 

construction. The claimant stated the reason for this limitation 

is that he would not want to jeopardize himself or anybody 

else in a situation where ". . . I might get hurt, say if I 

was to be in the proximity of heavy construction and something 

did happen and I was called on to do something that required 

some heavy physical response." The pain and "bothersomeness" 

in his rib cage is due to the fact that a couple of the 

ribs have healed a little out of place and they protrude 

farther from his chest than the other ribs. He has a continuing 

dull pain in the chest. 
On these findings, the Workers1 Compensation Court 

concluded: 

"The evidence clearly establishes that claimant 

still suffers some residual effects from his 

injury that would limit his ability to obtain 

certain employment -- as an engineer in the open 

labor market. It appears that an indemnity 

award of 100 weeks would be an appropriate 

award in his case." (Emphasis added.) 

We are required to view the evidence on appeal of a case 

of this kind in the light most favorable to the prevailing 

party. Hellickson v. Barrett Mobile Home Transport, Inc. (1973), 

161 Mont. 455, 507 P.2d 523, 525. In considering such evidence 

we should bear in mind these rules: 

". . . We will not substitute our judgment for 

that of the trier of fact, but rather will only consiclc-r whether substantial credible evidence supports 

the findings and conclusions. Those findings will 

not be overturned by this court unless there is a 

clear preponderance of t.vidcnce against them. 

We will view the evidence in a light most favorable 

to the prevailing party, recognizing that substantial 

evidence may be weak or conflicting with other evidence, 

yet still support the findings . . ." Cameron v. 

Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 

945. 

We owe a good deal of respect to the findings and conclusions adopted by the Workers' Compensation judge. Under 

section 39-71-2905, MCA, he is given the power to fix and 

determine any benefits to be paid and to specify the manner 

of payment to a claimant. The Workers1 Compensation judge is 

required in that same statute to make his determinations in 

accordance with the law as set forth in Ch. 71 of Title 39, 

MCA. Indemnity awards arise by virtue of the provisions of 

sections 39-71-705 and -706, PICA. The latter section 

provides that in all cases of permanent injury less than 

total, the compensation for permanent partial disability 

shall bear such relation as the disability bears, in this 

case, to 500 weeks. By determining here that the claimant 
was entitled to 100 weeks for his indemnity award, the 

Workers1 Compensation Court impliedly found that he had 

suffered a loss of 20 percent of earning capacity. The 

record bears this out. 

Although an estimate from a medical person as to the 

percentage of total disability of an injured worker is 

undoubtedly helpful to the Workers1 Compensation Court, I 

find nothing in the law which requires the testimony of a 

medical person as an absolute requisite for such an award. 

There is no reason why the Workers' Compensation Court 

cannot rely on the uncontroverted evidence of the claimant 

as to the amount and character of his disability, from which 

the Workers1 Compensation Court may draw a conclusion as to 

the amount of indemnity award to which the claimant is 

entitled. Section 39-71-706, MCA. 

Taking into account that there is a different Workers' 

Compensation judge now sitting than the one who heard and 

determined this case, it appears quite unnecessary to me to 

remand this case to the Workers1 Compensation judge for what 

will be a ministerial act: his determination that the 

injuries shown by the claimant amount to 20 percent of his 

earning capacity. 

I also disagree with the majority conclusion that this 

claimant is not entitled to a penalty award based on the 

actions of the insurer in connection with his claim. The 

majority is substituting its opinion for that of the Workers1 

Compensation judge upon entirely wrong factors. This is not 

a case where the employer-insurer had a right to rely on medical 

evidence so as to refuse - all further compensation. 

Section 39-71-2907, MCA, provides: 
". . . The question of unreasonable delay or 

refusal shall be determined by the workers' 

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. " 

The Workers' Compensation Court concluded that "[tlhe 

position of the insurance carrier that claimant - is entitled 

- to absolutely nothing constitutes a delay or refusal to pay 

compensation benefits . . ." (Emphasis added.) The record 

supports this finding and conclusion. 

A review of the whole record, not shown to have been made 

by the majority, would indicate that there was an unreasonable 

delay or refusal to pay compensation to the worker. 

On March 9, 1979, Mr. Keene, branch manager of the 

adjustment firm handling this case, wrote to the worker 

stating that he had been overpaid for 36 days for a total of 

$966.86, and demanding that Van Daveer repay that amount. This 

was during the period of the worker's disability, which the 

majority concurs is correctly computed. 

On March 21, 1979, counsel for the worker wrote to Mr. 

Keene advising him of the development of a hernia in the 

long abdominal incision. In that letter, counsel advised Keene 

that the overpayment could be deducted from the eventual 

entitlement to the worker, and that this was a case where 

there would be a claim over and above the temporary total 

disability benefits. 

On March 30, 1979, Keene wrote to counsel for the 

worker stating that they were going to deny further compensation 

by relying on the medical report of Dr. Bartlett that the 

worker suffered no residual disability, although at that 

time Keene had been advised that an operation for the hernia 

had occurred. 

-17- 
On June 8, 1979, Dr. Bartlett wrote to Keene, stating 

that he had last seen the worker on March 29, 1979, and that 

he had released the worker for full duty as of May 1, 1979. 

Dr. Rartlett also indicated that since he had not seen the 

worker lately, he could give no further information at that 

time. 

On July 2, 1979, the worker's counsel wrote to the 

adjustment firm stating that a claim would be made for an 

indemnity award, and setting forth the amount of partial 

disability then owed to the worker. The letter invited any 

offer that the firm might make with respect to settling the 

case. The insurer did not respond. 

On August 23, 1979, Keene wrote to the Workers' Compensation 

Division, asking for permission to pay the worker a temporary 

total disability of 6 weeks, and to deduct therefrom the 

overpayment of $966.86, leaving a net payment to the employee 

of $161.14. 

On September 28, 1979, Keene addressed a letter to 

counsel for the worker stating that he had received a 

letter from the Workers' Compensation Division authorizing 

the deduction of the overpayment and that Reene had surrendered 

a check in the sum of $161.14 "as final payment of compensation 

benefits owing." 

On February 7, 1980, the employee filed his petition 

for a hearing to determine the compensation benefits to 

which he was entitled. In that petition, he asked for an 

indemnity award for prospective loss of earning capacity. 

On April 30, 1980, the Workers' Compensation judge entered 

a pretrial order, in which he noted the worker contended 

he was entitled to an indemnity award for prospective loss 
of earning capacity, and in which the employer contended 

that the claimant had been paid all medical and compensation 

benefits to which he was entitled. 

The case was tried on depositions, all taken on the 

same day. The claimant testified to his continuing disability. 

Keene testified that based on medical reports and the further 

testimony that day of the worker, he would still contend 

that the worker was not entitled to one further penny as 

compensation benefits. 

Thus, nonths after the letter of September 28, 1979, 

it was apparent that Keene still refused to change his mind, 

and was relying on medical reports that obviously were not 

pertinent to the present claimed condition of the worker. 

The Workers' Compensation Court saw this as an unreasonable 

delay or denial of compensation benefits. The record sustains 

the court. When there is substantial evidence to support 

the court's findings and conclusions, it is the duty of this 

Court to affirm those findings. Walker v. H. F. Johnson, 

supra. 

I would affirm the Workers' compensation Court in 

toto. 

., 

Mr. Chief Justice Frank I. Haswell: 

I concur in the foregoing opinion of Mr. Justice Sheehy. 

Chief Justice