NO. 81-98 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

ARTHUR BUNDTROCK, Claimant and Appellant,

DUFF CHEVROLET, Employer, and TRAVELERS INSURANCE CO., Defendant and Respondent.

Appeal from: Workers' Compensation Court, The Honorable William-E. Hunt, Judge presiding,

Counsel of Record: For Appellant: R. V. Rottomly, GreatFalls, Montana

For Respondent: CharlesR. Johnson, GreatFalls, Montana

Submittedon Briefs: August 11, 1981 Decided: July 8, 1982

Filed:

## JUL 8-1982

P ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court.

ClaimantArthur Bundtrock appeals from the judgment of the Workers' CompensationCourt denying his petition to be declared permanently totally disabled and awarded a lump sun payment of benefits. Claimant raises two issues on appeal. First, he contends that the trial court erred in refusing to find him permanently totally disabled. In support of this contention, the claimant maintains that the evidencebefore the trial court clearly revealed that he would be permanently disabled within the meaning of the Workers' CompensationAct. Second, claimant contends that the trial court abused its discretion in denying his petition for a lump sumpayment to allow him to finance a smallbusiness venture. We affirm the trial court on both issues. The claimantwas injured on November 12, 1975while employed as a mechanic for Duff Chevrolet in Columbia Falls, Nontana. He injured his back while lifting an engine part from the floor. The accidentwas reported to the employer and a claim for compensationwas filed. The employer's insurer accepted the claim and paid total disability becefits from the date of the injury through October 26, 1979, and medical benefits throughNovember 1, 1979. Claimant also receives monthly disability payments and auxiliary benefits for his two children from the Social Security ~dministration. Extensive medical treatment, including at least four operations, has not relieved claimant's back problems. Althoughhis injury has made it impossible for him to return to work as a mechanic,he has attempted to work as a teacher of automobile mechanics at Flathead Community College and the MontanaAuto College. The claimant has obtained a 4-C teaching degree which qualifieshim to teach auto mechanics in statevocational educational programs. The claimant's debilitating pain forced him to stop teaching when he was unable to satisfactorily teach the lab pcrtion of the classes because of the bending and lifting that was required. On June 11, 1979, claimant filed a petition inWorkers' Compensation Court for a lump sum payment and declaration that he was permanently totally disabled. Thepetition requested the lump sum payment in order to "[elliminatepast due indebtedness on installment payments for his home and other debts." Thepetition stated no other grounds for the lump sum request. Lump sum payments are governed by section 39-71-741,MCA. At trial, the claimant testified that, at their present level of income,he and his wife were able to meet all payments and living expenses. In support of his petition for a lump sumpayment, claimantpresented a rough projection of his proposed business venture. The insurerwas not informed of theproposed business venture until one day before trial. This venture would involve the consignment sale of used motor vehicles. According to his own projections, the claimantwould need to gross $20,000 per month in sales in order to break even. He also admitted that, if the proposed venture failed,most of the investmentwould be lost.The trial court found that itwas in claimant's best interests to continue to receive compensation benefits on a periodic basis, and thereforedenied his petition for alump sum settlement. The trial court further found,based upon uneontroverted medical evidence, that enrollment in the Portland Pain Clinic may enable the claimant to reenter the labormarket in some type of sedentary employment. The trial court ordered the insurer to continue to pay temporary total disabilitypayments. Temporary Total Disability TheWorkers' Compensation Court found claimant to be temporarily totally disabled rather than permanently totally disabled. Claimant argues that because all of the various and extensive medical treatments administered over the past six years have failed to relieve his debilitating pain, the trial court erred in refusing to find him permanently and totally disabled. Claimant further argues that the refusal of the trial court to find him permanently and totally disabledwas error because it adversely affected the amount of any lump sum settlement. The trial court's finding is, however, supported by substantial evidence. In order to qualify as permanently totally disabled, thepreponderance ofmedical evidence must show that the claimanthas no reasonable prospect of reentering the normal labormarket. Section 39-71-116(13)

## ,MCA. This involves a consideration of the medical evidence aswell as the claimant's

ownparticular employment status. The only medical testimony presented was that of Dr. Richard Nelson, the claimant's physician. Dr. Nelson testified that, after undergoing treatment at the Portland Pain Clinic, the claimant could probably reenter the labor market in a sedentary job. The claimantwas qualified to teach vocational skills, and is physically capable of teaching auto mechanics in a classroomsetting. The claimantproduced no evidence to prove that he is permanently unable to return to the "normal labormarket." Temporary total disability is defined in section 39-71- 116(19),MCA, as total loss of wages "[ulntil the injured worker is as far restored as the permanent character of the injurieswill permit." The testimony of Dr. Nelson established that further treatmentmay allow claimant to return to the normal labormarket in a sedentary capacity. The claimant is qualified for some types of sedentarywork. Themedical evidence, though minimal, was sufficient to support a finding of temporary total disability. Nor arewe persuaded by claimant's argument that the trial court's refusal to find him permanently disabled adversely affected the amount of any lump sum settlement. Whether a claimant is entitled to a lump sumpayment of benefits, and whether he is temporarily or permanently disabled are two separate issues. The trial court's finding that claimant is temporarily totally disabled is supported by substantial evidence. Denial of Lump Sum Settlement Claimant asked for a lump sum award based on an expectation that he would be determined to be permanently totally disabled. Instead,the trial court found him to be temporarily totally disabled. Assuming, however, that claimantwas found to be permanently totally disabled, the trial court was clearly justified in denying his petition for a lump sum payment. Claimant failed to justify a clear need or a workable plan whichmight have moved the trial court's discretion. Lump sum settlements are the exception, not the rule, and will be granted in exceptional circumstanceswhere suchpayments serve the best interests of the claimant. Willoughby v. Arthur G. McKee & Co. (1980), -Mont

# . - I 609 P.2d 700, 37 St.Rep. 620;Kent v. Sievert (1971),158 Mont. 79, 489 P.2d 104. The trial court considered the evidence and found that the best interests of the claimant would best be served by periodic payments. Only a clear abuse of discretion is cause for this Court to reverse such

a finding. The claimant testified that he was not behind on bills, and that he and his wife couldmeet their monthly bills on their current income. He failed to establish any pressing need for a lump sum settlement. The claimant further argues that the trial court erred in denying his petition for a lump sum payment so that he could starthis ownbusiness venture. The business venture proposed by claimant was the consignment sale of used motor vehicles which would requirepurchasing a lot and building a structure fromwhich to conduct business. Claimant also proposed that thebusiness would be nominally owned by his wife (whowould work as a salesperson) so that his social security benefits would not be threatened. The claimant estimated that to break even, he needed to gross approximately $20,000per month in sales. He admitted that, if khe proposed business folded,most of his investmentwould be lost. Because of his back problems, claimantwould be unable to perform any 

### of the mechanical work required. Claimant therefore proposed hiring othermechanics for this purpose. The only evidencepresented regarding the feasibility of the proposed business venture was the testimony and projection of the claimant. The claimant bears theburden of justifying departure fromperiodic payments and any plan presented by the claimantmust be shown to have some reasonable basis for success. Legowik v. Montgomery Ward (1971),157Mcnt. 436, 486 P.2d 867. Each claim for a lump sum settlementmust be considered

on its ownmerits. The trial court was in a better position than we are to familiarize itselfwith the circumstances of the case and to consider the needs of the claimant. Krause

v. Sears (1982), 

### -Mont

# . - 

## , 641P.2d 458, 39 St.Rep. 394. The Workers' CompensationCourt determination that a lump sum payment would not be in claimant's best interests is supportedby substantial evidence. The decision of theWorlters' Compensation Court is a£firmed.

We Concur: