No. 96-329 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

JOSEPH EVANS, 

Petitioner and Appellant, 

v. 

STATE COMPENSATION INSURANCE FUND, 

Respondent and Respondent, 

ROSCOE STEEL & CULVERT COMPANY, 

Employer. 

APPEAL FROM: Workers' Compensation Court 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brad L. Arndorfer, Billings, Montana 

For Respondent: 

Ann E. Clark, State Compensation Insurance Fund, 

Helena, Montana 

~!S :, ,.I 

.,>,$ Submitted on Briefs: October 10, 1996 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

Appellant Joseph Evans (Evans) appeals the findings of fact, 

conclusions of law, and judgment of the Workers' Compensation Court 

denying Evans' claim for a lump sum conversion of his future 

entitlement to permanent total disability benefits; denying Evans' 

request that the State Compensation Insurance Fund (State Fund) be 

ordered to recoup an earlier lump sum advance from benefits payable 

after Evans reaches the age of 65; denying attorney fees and costs; 

and dismissing Evans' petition. 

We affirm. 

We review the following issues: 

I. Did the Workers' Compensation Court abuse its discretion 

when it denied Evans' request for lump sum conversion? 

2. Did the Workers' Compensation Court correctly conclude 

that the I994 contract for lump sum advance is clear and 

unambiguous? 

FACTS 

In 1980, Evans suffered a shoulder injury while working as a 

laborer for Roscoe Steel in Billings, Montana. State Fund, Roscoe 

Steel's insurer, accepted liability for the injury and paid Evans 

both medical and wage loss benefits. In 1993, State Fund 

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determined that Evans was permanently totally disabled and 

converted his benefits to permanent total status. 

On February 17, 1993, Evans requested a lump sum conversion of 

his remaining permanent total disability benefits. State Fund 

indicated in a letter to Evans' attorney that while it would not 

convert all of Evans' remaining benefits to a lump sum payment, it 

would be willing to "offer a lump sum if Mr. Evans can show the 

need for financial assistance. That lump sum would then be 

recovered on a biweekly basis until Mr. Evans reaches age 65." 

Evans and State Fund agreed upon a lump sum advance of 

$68,750. Evans' primary purpose in pursuing the advance was to 

purchase a small home in Bridger, Montana. Evans believed that he 

was putting his life, and his fiance's life, in danger by remaining 

in his Billings neighborhood. Evans had apparently been involved 

as an informant in a Billings drug bust, had been the intended 

victim of a drive-by shooting, and was anxious to leave the city. 

Evans' 1994 "Petition For Lump Sum Advance Of Permanent Total 

Disability Benefits" provided in relevant part: 

I therefore petition the Department of Labor and 

Industry for a lump sum advance on any compensation in 

the amount of SIXTY-EIGHT THOUSAND AND SEVEN HUNDRED 

FIFTY AND NO/lOOTH DOLLARS ($68,750.00). 

I understand the insurer may recoup this lump sum 

advance from any type of biweekly benefits or any type of 

award or settlement I receive in the future. 

I UNDERSTAND: 

The above amount will be recovered by age SIXTY FIVE 

(65). 
Evans' petition was approved by State Fund and by the Department of 

Labor and Industry. The order of approval issued by the Department 

of Labor and Industry stated that the amount of Evans' advance 

"will be recovered by age SIXTY-FIVE !65)." 

After receiving his advance, Evans purchased the house in 

Bridger. The purchase price was initially $55,000, but Evans 

successfully renegotiated a lesser price after certain structural 

defects were discovered. Evans purchased the house for $35,000, 

intending to use the $20,000 savings for repairs. 

After State Fund issued Evans the lump sum advance, it reduced 

Evans' biweekly benefits by $134.66, an amount calculated to recoup 

the advance by the time Evans reaches age 65. Evans' attorney 

wrote to State Fund protesting this method of recoupment, 

indicating in the letter that it was his understanding that State 

Fund would recoup the amount of the advance "from the backside of 

the contract as had been discussed." Evans' attorney explained in 

the letter that by age 65 Evans would be eligible for social 

security benefits and would be better able to withstand a decrease 

in workers' compensation benefits. Evans' attorney requested that 

the entire case be settled so that Evans could purchase an annuity 

to provide himself future income. State Fund rejected this 

request, and Evans thereafter filed the action in the Workers' 

Compensation Court that we are reviewing here. 

Evans' petition to the Workers' Compensation Court sought a 

lump sum conversion of the entire amount of benefits due him during 

his lifetime. Evans also requested that the court order State Fund 

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to recoup its 1994 advance from the distal end of Evans' benefits, 

after he reaches age 65. After a hearing, the court denied Evans' 

requests and dismissed his petition. It is from this judgment that 

Evans appeals. 

ISSUE ONE 

Did the Workers' Compensation Court abuse its discretion when 

it denied appellant's request for lump sum conversion? 

Evans contends that the court should have considered his best 

interests before ruling on his request for lump sum conversion. 

Evans argues that because his biweekly.benefits checks are subject 

to recoupment his monthly income is well below his monthly 

expenses. Evans explains that the $68,750 he was advanced in 1994 

has been depleted by the purchase of the Bridger house, the 

unexpectedly high cost of repairing that house, and attorney fees. 

Evans contends that it is undoubtedly in his best interests to 

receive a lump sum rather than biweekly payments: with a lump sum, 

he can finish the repairs to make his Bridger home habitable; pay 

off debts incurred as a result of the repairs already made on the 

Bridger house; and purchase an annuity to provide himself future 

income. On the other hand, Evans argues, the biweekly payments are 

simply insufficient for monthly necessities, let alone house 

repairs or the purchase of an annuity. 

We have stated that "Workers' Compensation Court decisions 

denying lump sum settlements will not be interfered with on appeal 

unless there is an abuse of discretion." Sullivan v. Aetna Life & 

Casualty (1995), 271 Mont. 12, 15, 894 P.2d 278, 280 (citing Byrd 

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v. Ramsey Engineering (1985), 217 Mont. 18, 21-22, 701 P.2d 1385, 

1387; Kent v. Sievert (1971), 158 Mont. 79, 81, 489 P.2d 104, 105). 

Our deferential standard of review reflects our holdings that lump 

sum payments are the exception to the rule of biweekly payments, 

Stanley Structures v. Scribner (19921, 253 Mont. 236, 240, 833 P.2d 

166, 169 (citing Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 

252, 752 P.2d 737, 741-42), and that the claimant has the burden of 

proving that a lump sum conversion of his future permanent total 

disability benefits is in his best interests, Sullivan, 894 P.2d at 

280; Stanlev Structures, 833 P.Zd at 169. 

Here, Evans failed to meet his burden of proof. While he 

testified that his income from his reduced biweekly benefits checks 

was insufficient to meet his own needs and pay his debts, he 

neglected to provide the court with any documentary evidence to 

support this contention. As well, Evans did not present to the 

court an investment plan with any degree of detail. Furthermore, 

as noted by the court, Evans' annuity quote which was presented at 

trial was flawed in that its computations included as benefit 

monies due him the $68,750 Evans was advanced in 1994. The court 

concluded: 

In this case, I am not satisfied that a lump sum 

advance to pay indebtedness is in the claimant's best 

interest. His explanation of his expenditures is 

undocumented, wholly unsatisfactbry, and not credible. 

If he is to be believed, he has expended almost as much 

($28,000 to $29,000) on his house in Bridger as its 

entire purchase price ($35,000), and still needs $30,000 

to finish repairs. If he is believed, necessary repairs 

will cost almost twice as much as the original cost of 

the house. 

According to claimant, his run-up of his credit card 

balances included money for his living expenses. Adding 

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that money to his biweekly benefits and the $5,000 he 

says he used from the 1994 lump sum advance to pay for 

living expenses, the money he has had available for 

monthly living expenses over the last 18 months has been 

far in excess of his monthly income prior to the 1994 

advance, thus indicating an inability to manage money. 

His undocumented, perfunctory and superficial 

presentation concerning his expenditures over the last 18 

months and the need for additional house repairs, also 

raises series [sic1 questions about his ability to manage 

money. 

. . . . 

There is also no basis for awarding claimant a lump 

sum to purchase an annuity. Claimant's assertion that he 

will be better off with an annuity is identical to the 

argument made and rejected in LaVe v. School Dist. No. 2, 

220 Mont. 52, 55, 713 P.2d 546, 547-48 (Mont. 1986). 

In the instant case, appellant advances two 

principle reasons for requesting a lump sum payment. 

They are: (1) appellant and her husband have 

outstanding debts, and (2) appellant and her husband 

wish to invest the money and receive a return which 

would be greater than the weekly benefits. Neither 

appellant nor her husband have proposed a concrete, 

specific plan of investment. Neither of the two 

have personally contacted an investment or financial 

counselor. An investment counselor did testify for 

appellant on the return that appellant could expect 

if she was granted, and invested, a lump sum award. 

In Kent v. Sievert (1971), 158 Mont. 79, 81, 489 

p.2d 104, 105, this Court held that where a claimant 

requested a lump sum payment proposing "to put it 

'on interest,"' that proposed use was insufficient 

to warrant a lump sum payment. Kent is still the 

law and appellant's desired investment is not 

reason, by itself, to award her a lump sum payment. 

Otherwise, any claimant desiring a lump sum award 

could secure one by proposing to invest it. This 

would defeat the statutory intent of Montana's 

Workers' Compensation scheme, as lump sum awards are 

to be the exception. Section 39-71-741, MCA. 

(Emphasis added.) 

The record shows that with the exception of Evans' testimony, which 

the court did not find particularly credible, the court was not 

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presented with any evidence which would have prompted it to grant 

Evans' request for a lump sum conversion. The court did not abuse 

its discretion when it denied Evans' request for a lump sum 

conversion. 

ISSUE TWO 

Did the Workers' Compensation Court correctly conclude that 

the 1994 contract for lump sum advance is clear and unambiguous? 

Evans argues that the provision in his signed petition for 

lump sum advance which states his understanding that the amount 

advanced to him would be recovered by age 65 is ambiguous. Evans 

contends that the provision is susceptible to the interpretation 

and understanding he had when he signed the petition, that recovery 

of the advanced amount would not begin until he neared age 65. 

Evans claims that State Fund concurred with this understanding 

during preliminary negotiations. The.provision states: 

I understand the insurer may recoup this lump sum 

advance from any type of biweekly benefits or any type of 

award or settlement I receive in the future: 

I UNDERSTAND: The above amount will be recovered by 

age SIXTY FIVE (65). 

The court concluded that "[tlhe agreement expressly provides 

'that the State Fund shall recoup the advance from claimant's 

biweekly benefits and that recoupment shall be completed by the 

time claimant reaches age 65." The court refused to allow 

testimony on the matter, and denied Evans' request that the court 

order State Fund to recoup its 1994 advance from the distal end of 

his benefits, after he reaches age 65. 

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The court's conclusion that the provision is unambiguous is a 

conclusion of law. We must determine if that conclusion was 

correct. Stanley Structures, 833 P.2d at 169. The provision 

expressly allows State Fund to recoup the amount of the advance in 

a number of ways: from Evans' biweekly benefits; from a future 

award; or, from a future settlement. The provision expressly 

requires that the amount of the advance be recovered by age 65. 

Evans has apparently confused clearly expressed alternatives 

with ambiguity. There is nothing ambiguous about any of the 

recovery options available to State Fund under this provision of 

Evans: petition. Evans' contention that State Fund was not 

required to recoup its advance from his biweekly benefits is not 

relevant to the issue of ambiguity. The court correctly concluded 

that the provision clearly and unambiguously allows State Fund to 

recoup its advance from Evans' biweekly benefits. The court's 

subsequent decisions to disallow testimony regarding the provision 

and to deny Evans' request to order State Fund to recoup its 

advance after Evans reaches age 65 were also correct. "The rule 

has long been that where no ambiguity exists in the written 

documents, no parol evidence may be taken, and the duty of the 

court is simply to apply the language as written." Montana Bank of 

Circle v. Ralph Meyers & Son, Inc. (1989), 236 Mont. 236, 243, 769 

P.2d 1208, 1212 (citation omitted). 

Affirmed. 

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-we concur : 

Justices 

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