NO. 81-98 

IN THE 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, Great Falls, Montana 

For Respondent: 

Charles R. Johnson, Great Falls, Montana 

Submitted on Briefs: August 11, 1981 

Decided: July 8, 1982 

Filed: JUL 8- 1982 

P 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Claimant Arthur Bundtrock appeals from the judgment of 

the Workers' Compensation Court 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 evidence before the trial court clearly 

revealed that he would be permanently disabled within the 

meaning of the Workers' Compensation Act. Second, claimant 

contends that the trial court abused its discretion in denying 

his petition for a lump sum payment to allow him to finance 

a small business venture. We affirm the trial court on both 

issues. 

The claimant was injured on November 12, 1975 while 

employed as a mechanic for Duff Chevrolet in Columbia Falls, 

Nontana. He injured his back while lifting an engine part 

from the floor. The accident was reported to the employer and 

a claim for compensation was 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 through November 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. Although 
his 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 Montana Auto College. The claimant has obtained a 4-C 

teaching degree which qualifies him to teach auto mechanics 

in state vocational 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 in Workers' 

Compensation Court for a lump sum payment and declaration 

that he was permanently totally disabled. The petition 

requested the lump sum payment in order to "[elliminate past 

due indebtedness on installment payments for his home and 

other debts." The petition 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 sum payment, claimant presented a rough projection 

of his proposed business venture. The insurer was not 

informed of the proposed business venture until one day 

before trial. This venture would involve the consignment 

sale of used motor vehicles. According to his own projections, 

the claimant would 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 investment would be 

lost. 

The trial court found that it was in claimant's best 

interests to continue to receive compensation benefits on a 

periodic basis, and therefore denied his petition for a 
lump 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 

labor market in some type of sedentary employment. The 

trial court ordered the insurer to continue to pay temporary 

total disability payments. 

Temporary Total Disability 

The Workers' 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 

disabled was 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, 

the preponderance of medical evidence must show that the 

claimant has no reasonable prospect of reentering the normal 

labor market. Section 39-71-116 (13) , MCA. This involves a 

consideration of the medical evidence as well as the claimant's 

own particular 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 

claimant was qualified to teach vocational skills, and is 

physically capable of teaching auto mechanics in a classroom 
setting. The claimant produced no evidence to prove that he 

is permanently unable to return to the "normal labor market." 

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 

injuries will permit." The testimony of Dr. Nelson established 

that further treatment may allow claimant to return to the 

normal labor market in a sedentary capacity. The claimant 

is qualified for some types of sedentary work. The medical 

evidence, though minimal, was sufficient to support a finding 

of temporary total disability. 

Nor are we 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 sum payment 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 claimant was 

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 which might have moved the trial court's 

discretion. 

Lump sum settlements are the exception, not the rule, 

and will be granted in exceptional circumstances where such 
payments 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 could meet 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 start his own business venture. The business venture 

proposed by claimant was the consignment sale of used motor 

vehicles which would require purchasing a lot and building a 

structure from which to conduct business. Claimant also 

proposed that the business would be nominally owned by his 

wife (who would 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 

$20,000 per month in sales. He admitted that, if khe 

proposed business folded, most of his investment would be 

lost. Because of his back problems, claimant would be 

unable to perform any of the mechanical work required. 

Claimant therefore proposed hiring other mechanics for this 

purpose. The only evidence presented regarding the feasibility 

of the proposed business venture was the testimony and 

projection of the claimant. 

The claimant bears the burden of justifying departure 

from periodic payments and any plan presented by the claimant 
must be shown to have some reasonable basis for success. 

Legowik v. Montgomery Ward (1971), 157 Mcnt. 436, 486 P.2d 

867. Each claim for a lump sum settlement must be considered 

on its own merits. The trial court was in a better position 

than we are to familiarize itself with the circumstances of 

the case and to consider the needs of the claimant. Krause 

v. Sears (1982), - Mont . - , 641 P.2d 458, 39 St.Rep. 

394. 

The Workers' Compensation Court determination that a 

lump sum payment would not be in claimant's best interests 

is supported by substantial evidence. 

The decision of the Worlters' Compensation Court is 

a£ f irmed. 

We Concur: