No. 89-235 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOSEPHINE M. BECK, 

Claimant and Respondent, 

-vsFLATHEAD COUNTY, d/b/a FLATHEAD COUNTY 

NURSING HOME, Employer, and 

STATE COMPENSATION INSURANCE FUND, 

Defendants and Appellants. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Todd A. Hammer, Warden, Christiansen, Johnson & Berg 

Kalispell, Montana 

For Respondent: 

Terry N. Trieweiler, Trieweiler Law ~irm, 

whitefish, Montana 

Submitted on Briefs: September 27, 1989 

Decided: December 1, 1989 

Filed: 

DEC Pa 1989 
Justice Diane G. Barz delivered the Opinion of the Court. 

Defendants, Flathead County and the State Compensation 

Insurance Fund, appeal the decisions of the Workers' 

Compensation Court of the State of Montana, to forego a trial 

regarding whether claimant, Beck, had shown substantial 

credible evidence of a reduced earning capacity; to adopt the 

Findings of Fact and Conclusions of Law dated February 27, 

1989; and to forego an evidentiary hearing regarding costs 

and attorney fees. We affirm. 

Defendants raise the following four issues on appeal: 

1. Whether the Workers' Compensation Court erred by 

not making any additional findings or conclusions regarding 

claimant's pre-injury and post-injury earning capacity. 

2. Whether the parties' stipulation regarding 

claimant's permanent partial disability benefit rate was 

binding for subsequent proceedings. 

3. Whether a court should consider claimant's 

subsequent injury when considering her future earning 

capacity. 

4. Whether the Workers' Compensation Court erred by 

not holding an evidentiary hearing regarding costs and 

attorney fees. 

Claimant, Josephine M. Beck, sustained a work-related, 

cervical injury on April 11, 1984 while working as a nurse's 

aide at the Flathead County Nursing Home. On March 14, 1986, 

claimant filed a Petition for Hearing in the Workers' 

Compensation Court of the State of Montana. A pretrial order 

was signed on May 14, 1986 by a hearing examiner, stating, as 

an uncontested fact, that "[c]laimant's partial disability 

benefit rate is $126.61. . ." After a May 21, 1986 hearinq 

in front of a hearing examiner, the Workers' Compensation 

Court adopted the hearing examiner's proposed Findings of 
Fact, Conclusions of Law and Judgment. The court then 

entered a judgment stating that claimant was not entitled to 

permanent partial disability benefits under § 39-71-703, MCA. 

Claimant appealed this ruling to the Montana Supreme 

Court, arguing that the Workers' Compensation Court erred by 

determining that $ 39-71-703, MCA, requires a claimant to 

prove an actual wage loss to collect permanent partial 

disability benefits. This Court reversed the Workers' 

Compensation Court in Beck v. Flathead County (Mont. 1988) , 

749 P.2d 527, 530, 45 St.Rep. 215, 219, stating that " [tlhe 

correct test for loss of earning capacity is whether the 

injury has caused a loss of ability to earn on the open 

market.'' Beck, 749 P.2d at 529, 45 St.Rep. at 217. This 

Court then remanded the case to the Workers' Compensation 

Court with the directive to "determine whether claimant Beck 

[had] shown substantial credible evidence of a reduced 

earning capacity." Beck, 749 P.2d at 530, 45 St.Rep. at 219. 

The Workers' Compensation Court initially issued an 

order scheduling a retrial. Claimant, however, filed a 

written objection, by letter, arguing that in Beck this Court 

remanded for the sole purpose of considering the previous 

Findings of Fact in light of the correct rule of law and not 

to issue new Findings of Fact. Claimant pointed out that 

neither party appealed from the original Findings of Fact and 

therefore argued that a new trial was neither necessary nor 

proper. Defendants, however, argued that it had a right to 

present additional evidence, in particular, evidence of an 

injury claimant sustained subsequent to the April 11, 1984 

injury. On April 15, 1988, the Workers' Compensation Court 

determined that in light of this Court's decision in Beck, a 

new trial was not needed. The Workers' Compensation Court 

then entered an order on February 27, 1989 adopting the 

hearinq examiner's Proposed Findings of Fact and Conclusions 
of Law, and entered an amended Judgment which stated that 

claimant had sustained a permanent partial disability and, 

under the correct rule of law, was entitled to disability 

benefits as agreed upon in the May 14, 1986 Pre-Trial Order. 

On April 13, 1989, the court entered its Order awarding 

attorney fees and costs based upon the contingent fee 

agreement that existed between claimant and her attorney. On 

May 1, 1989, defendants filed its Notice of Appeal to the 

Montana Supreme Court. 

The first issue raised on appeal is whether the 

Workers' Compensation Court erred by not making any 

additional findings or conclusions regarding claimant's 

pre-injury and post-injury earning capacity. 

In Beck, we directed the Workers' Compensation Court to 

"determine whether claimant Beck [had] shown substantial 

credible evidence of a reduced earning capacity." Beck, 749 

P.2d at 530, 45 St.Rep. at 219. In Conclusion of Law No. 2, 

dated February 27, 1989, the Workers' Compensation Court 

concluded that claimant is permanently partially disabled as 

a result of her April 11, 1984 industrial accident. Under 

5 39-71-116 (12), MCA, (1985), permanent partial disability is 

defined as: 

[a] condition resulting from injury as 

defined in this chapter that results in 

the actual loss of earnings or earning 

capability less than total that exists 

after the injured worker is as far 

restored as the permanent character of 

the injuries will permit. . . (Emphasis 

added. ) 

As this Court held in Beck, the correct test for loss of 

earning capacity is whether the injury has caused "a loss of 

ability to earn on the open market." Beck, 749 P.2d at 529, 

45 St.Rep. at 217. 
On review, this Court's role is limited to whether 

substantial evidence supports the Workers' Compensation 

Court's findings and conclusions. Walker v. H.F. Johnson, 

Inc. (1978), 180 Mont. 405, 410, 591 P.2d 181, 184. The 

hearing examiner found that, based upon a vocational expert's 

testimony, if claimant "had to leave her present position to 

take a lighter duty job, she would have a diminished earning 

capacity." This Court has previously held that this sort of 

testimony is sufficient to establish loss of earning 

capacity. Hafer v. Anaconda Aluminum, Co. (19821, 198 Mont. 

105, 11.1, 643 P.2d 1192, 1195-96; Walker, 180 Mont. at 411, 

591 P.2d at 184. However, claimant's own testimony and the 

testimonies of the examining physicians and vocational 

experts further support this finding. The court then entered 

an amended conclusion of law stating that claimant 

[rleached maximum healing on May 8, 1986. 

Returning to her employment as a nurse's 

aide at Flathead County Nursing Home, she 

experienced myofascial pain, shoulder 

pain, and numbness in her hand, all of 

which are aggravated by her work. 

Claimant's physicians have recommended certain work restrictions which 

are inconsistent with her current 

employment and once she leaves her 

current employment, she will be 

restricted in her ability to compete in 

her normal market. 

Defendants nonetheless attempt to argue that this Court 

"implicitly" directed the Workers' Compensation Court to 

conduct an evidentiary hearing so that the Workers' 

Compensation Court could make additional findings and 

conclusions regarding claimant's pre-injury and post-injury 

earning capacity and so that they could have their "day in 

court." We disaqree. 
In Beck, we held that the Workers' Compensation Court 

had to determine the threshold question of whether claimant 

had shown substantial evidence of a reduced earning capacity. 

The Workers' Compensation Court determined, based upon the 

record, that claimant would have a diminished earning 

capacity as a result of her accident. The court does not 

need to conduct an additional evidentiary hearing because of 

defendants' personal desire to have more specific and 

tailored findings, conclusions and comparisons. In addition, 

defendants have already had their day in court and thus have 

had a full and fair opportunity to introduce all evidence of 

claimant's pre-injury and post-injury earning capacity. An 

additional evidentiary hearing is neither necessary nor 

proper. First Bank-Billings v. Clark (Mont. 1989) , 771 P. 2d 

84, 92, 46 St.Rep. 291, 300; Harrington v. Montgomery Druq 

Co. (1941), 111 Mont. 564, 567-68, 111 P.2d 808, 810. Upon 

review of the record, we hold that substantial credible 

evidence supports the court's finding and conclusion 

regarding the question of whether claimant had shown 

substantial credible evidence of a reduced earning capacity. 

The question remained, however, what disability benefit 

rate the claimant should receive. Defendants therefore raise 

the issue of whether the parties' stipulation regardinq 

claimant's permanent partial disability benefit rate was 

binding for subsequent proceedings. 

The doctrine of res judicata bars this Court from 

addressing this issue. This doctrine applies when a litigant 

has had the opportunity to litigate an issue but has not 

availed himself of the opportunity. The policy behind the 

doctrine of res judicata is to prevent piecemeal litigation 

and to accord finality as to all issues raised or which 

fairly could have been raised. O'Neal, Booth and blilkes v. 

Andrews (19861, 219 Mont. 496, 499, 712 P.?d 1327, 1379; - In 
- re Estate of Pegg (1984), 209 Mont. 71, 78-79, 680 P.2d 316, 

320; Wellman v. Wellman (1982), 198 Mont. 42, 45-46, 643 P.2d 

573, 575-76. 

As already noted, claimant appealed the initial 

decision of the Workers' Compensation Court in 1987. In that 

appeal, claimant argued that under 5 39-71-703, MCA, she wa.s 

entitled to permanent partial disability benefits upon proof 

that she suffered a reduced earning capacity. Claimant also 

argued that substantial evidence did not support the Workers' 

Compensation Court's finding that she did not sustain 

permanent partial disability pursuant to S 39-71-703, MCA. 

In this second argument, claimant sets forth her testimony, 

and the testimonies of her physicians, her rehabilitation 

expert, and two vocational experts to illustrate that 

substantial evidence did not support the Workers' 

Compensation Court's finding that she did not sustain 

permanent partial disability. In addition, claimant argued 

in her brief that the defendants had stipulated to her 

permanent partial disability rate at $126.61 per week and 

that this stipulation was binding on the court. Defendants 

did not once rebut or mention this matter in their reply 

brief. Defendants failed to take the opportunity to litigate 

this matter in Beck, and cannot now expect to be allowed to 

bring up the issue now. Litigation regarding a matter must 

come to an end at some point. Defendants' acquiescence on 

this matter in the first appeal bars them from ra-ising it on 

this appeal. 

The Beck decision, like other judgments, are "binding 

and conclusive between all the parties to the suit and their 

privies and successors in interest, as to all matters 

adjudicated therein and as to all issues which could have 

been properly raised irrespective of whether the particular 

matter was in fact litigated." Orlando v. Prewett (Mont. 
1989), 771 P.2d 111, 113, 46 St.Rep. 520, 523 (quoting Kramer 

v. Deer Lodge Farms Co. (1944), 116 Mont. 152, 156, 151 P.2d 

483, 484). We therefore hold that the doctrine of res 

judicata applies in this case and therefore bars defendants 

from asserting and arguing that the parties' stipulation 

regarding claimant's permanent partial disability benefit 

rate is not binding. 

The next issue raised on appeal is whether a court 

should consider claimant's subsequent injury when considering 

her future earning capacity. 

In light of the determination that claimant had shown 

substantial credible evidence of a reduced earning capacity 

and also in light of the parties' stipulation regarding 

claimant's permanent partial disability benefit rate, this 

issue is now moot. Furthermore, the effect, if any, two 

separate injuries would have upon a claimant's disability 

benefit rate would more appropriately be addressed at a 

hearing regarding the most recent injury. This Co.urt 

therefore does not need to address on this appeal whether a 

court should consider a claimant ' s subsequent in j.ury when 

considering her future earning capacity. 

The last issue raised on appeal is whether the Workers' 

Compensation Court erred by not holding an evidentiary 

hearing regarding costs and attorney fees. 

On April 13, 1989, the Workers' Compensation Court 

issued an order setting attorney fees and costs. In this 

order, the court granted claimant's costs in the amount of 

$2,727.86 and her attorney fees in the amount of $20,004.38, 

which were based upon the contingent fee agreement. 

Defendants first note that they requested an 

evidentiary hearing regarding claimant's attorney fees and 

costs. Defendants then argue that the Workers' Compensation 

Court committed reversible error when it did not hold an 
evidentiary hearing on these matters. Defendants rely upon 

Honey v. Stoltze Land & Lumber Co. (Mont. 1989), 769 P.2d 42, 

46 St.Rep. 202, to argue that an evidentiary hearing must 

always be held when addressing attorney fees and costs--even 

in cases when an evidentiary hearinq is not requested. We 

disagree. 

In Honey, the claimant had a contingent fee agreement 

with his attorney. After successfully representing the 

claimant, the attorney claimed a much larger attorney fee 

than was due him in light of the contingent fee agreement. 

Under the contingent fee agreement, claimant's attorney was 

entitled to $2,208.79. Claimant's attorney submitted time 

records and an affidavit to support his claimed attorney fee 

of $9,443.50, but he then did not request an evidentiary 

hearing. The Workers' Compensation Court nonetheless awarded 

attorney fees based on the contingent fee agreement. Honey, 

769 P.2d at 43, 46 St.Rep. at 203-04. This Court then held 

that the facts in Honey demonstrated a need for an 

evidentiary hearing. --- Honey, 769 P.2d at 44, 46 St.Rep. at 

205-06. The facts in Honey, however, are not analogous to 

the facts in the present case. 

In the present case, defendants acknowledged that the 

contingent fee agreement controlled the award of attorney 

fees. Defendants' arguments at the lower court, however, 

centered around whether the contingent fee rate should be 33% 

or 40%, and what constituted a valid pretrial settlement 

offer so as to determine the amount the percentage was to be 

based upon. Both of these issues are legal issues that do 

not require an evidentiary hearing. 

Resides awarding claimant attorney fees based on the 

contingent fee agreement, the Workers' Compensation Court 

also granted claimant's costs in the amount of $119.11 for 

travel expenses, $50.00 for a medical conference, and $139.00 
in printing costs, totalling $308.11. Defendants assert that 

these costs are not recoverable. Defendants further assert 

that this Court required the Workers' Compensation Court to 

conduct an evidentiary hearing whenever it addresses attorney 

fees and costs. On the contrary, this Court in Wight v. 

Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303, 

stated that " [i]n the rare case where an evidentiary hearing 

is necessary, the Workers' Compensation judge shall extend 

opportunity for hearing . . ." Wight, 204 Mont. at 116, 664 

P. 2d at 313. The facts of this case do not warrant such a 

hearing. 

We therefore hold that the Workers' Compensation Court 

did not abuse its discretion in determining that an 

evidentiary hearing was not necessary in this case. 

Affirmed. I 

We concur: A