No. 96-329 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1996

JOSEPH EVANS,

Petitioner and Appellant,

v. STATE COMPENSATION INSURANCE FUND,

Respondent and Respondent, ROSCOESTEEL &CULVERT COMPANY,

Employer.

APPEAL FROM: Workers' Compensation Court

The Honorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

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, 1996Justice 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 becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andby a report of its result to Montana LawWeek, State Reporter andWest Publishing Company. Appellant Joseph Evans (Evans) appeals the findings of fact, conclusions of law, andjudgment 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 anearlier lumpsumadvance from benefits payable after Evans reaches the ageof 65; denying attorney fees andcosts; and dismissing Evans' petition. Weaffirm. Wereview the following issues: I. Did the Workers' Compensation Court abuse its discretion when it denied Evans' request for lump sumconversion? 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 ashoulder injury while working as a laborer for Roscoe Steel in Billings, Montana. State Fund, Roscoe Steel's insurer, accepted liability for the injury andpaid Evans both medical and wage loss benefits. In 1993, State Fund 2determined that Evans was permanently totally disabled and

converted his benefits to permanent total status. OnFebruary 17, 1993, Evansrequested alumpsumconversion 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 alump sumpayment, it would bewilling to "offer a lump sumif Mr. Evans can show the need for financial assistance. That lump sum would then be recovered onabiweekly 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 homein Bridger, Montana. Evans believed that he

wasputting his life, andhis fiance's life, in danger by remaining in his Billings neighborhood. Evans hadapparently been involved

as an informant in a Billings drug bust, had been the intended victim of adrive-by shooting, andwasanxious to leave the city. Evans' 1994 "Petition For LumpSumAdvance Of Permanent Total Disability Benefits" provided in relevant part:

I therefore petition the Department of Labor and Industry for a lump sumadvance on any compensation in the amount of SIXTY-EIGHT THOUSANDANDSEVENHUNDRED FIFTY ANDNO/lOOTHDOLLARS($68,750.00). I understand the insurer may recoup this lump sum advance from anytype of biweekly benefits or anytype of award or settlement I receive in the future. I UNDERSTAND: Theabove amountwill berecovered byageSIXTYFIVE (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 sumadvance, it reduced Evans' biweekly benefits by $134.66, anamount 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 adecrease 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

4to recoup its 1994advance from the distal endof Evans' benefits,

after he reaches age65. After ahearing, the court denied Evans' requests anddismissed his petition. It is from this judgment that Evans appeals. ISSUEONE Did the Workers' Compensation Court abuse its discretion when it denied appellant's request for lump sumconversion? Evans contends that the court should have considered his best interests before ruling on his request for lump sumconversion. 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 hewasadvanced in 1994 has been depleted by the purchase of the Bridger house, the unexpectedly high cost of repairing that house, andattorney fees. Evans contends that it is undoubtedly in his best interests to receive a lump sumrather than biweekly payments: with alump sum, hecan finish the repairs to makehis Bridger homehabitable; pay off debts incurred as aresult of the repairs already madeonthe Bridger house; and purchase anannuity to provide himself future income. Onthe other hand, Evansargues, the biweekly payments are simply insufficient for monthly necessities, let alone house repairs or the purchase of anannuity. Wehave stated that "Workers' Compensation Court decisions denying lump sumsettlements will not beinterfered with onappeal unless there is anabuse of discretion." Sullivan v. Aetna Life & Casualty (1995), 271Mont. 12, 15, 894 P.2d 278, 280 (citing Byrd

5v. RamseyEngineering (1985), 217Mont. 18, 21-22, 701 P.2d 1385,

1387; Kent v. Sievert (1971), 158Mont. 79, 81, 489P.2d 104, 105). Our deferential standard of review reflects our holdings that lump

sumpayments are the exception to the rule of biweekly payments, Stanley Structures v. Scribner (19921, 253Mont. 236, 240, 833P.2d 166, 169 (citing Phelps v. Hillhaven Corp. (1988), 231 Mont. 245, 252, 752P.2d 737, 741-42), andthat the claimant has the burden of proving that a lump sumconversion of his future permanent total disability benefits is in his best interests, Sullivan, 894P.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,

asnoted bythe court, Evans' annuity quote which waspresented at trial was flawed in that its computations included as benefit monies due him the $68,750 Evans wasadvanced in 1994. Thecourt concluded: In this case, I amnot 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 bebelieved, hehas expended almost asmuch ($28,000 to $29,000) on his house in Bridger as its entire purchase price ($35,000), andstill needs $30,000 to finish repairs. If heis believed, necessary repairs will cost almost twice as muchas the original cost of the house. According to claimant, his run-up of his credit card balances included moneyfor his living expenses. Adding 6that money to his biweekly benefits and the $5,000 he

says he used from the 1994 lump sumadvance to pay for living expenses, the money he has had available for monthly living expenses over the last 18months hasbeen far in excess of his monthly income prior to the 1994 advance, thus indicating an inability to managemoney. 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 nobasis for awarding claimant alump sumto purchase anannuity. Claimant's assertion that he will be better off with an annuity is identical to the argument madeandrejected in LaVev. 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 alumpsumpayment. They are: (1) appellant and her husband have outstanding debts, and (2) appellant andher husband wish to invest the moneyandreceive areturn which would begreater than the weekly benefits. Neither appellant nor her husband have proposed aconcrete, specific plan of investment. Neither of the two havepersonally contacted aninvestment or financial counselor. Aninvestment counselor did testify for appellant onthe return that appellant could expect if shewasgranted, and invested, alump sumaward. In Kent v. Sievert (1971), 158 Mont. 79, 81, 489 p.2d 104, 105, this Court held that where aclaimant requested a lump sumpayment proposing "to put it 'on interest,"' that proposed use was insufficient to warrant a lump sumpayment. Kent is still the law and appellant's desired investment is not reason, by itself, to award her alump sumpayment. Otherwise, any claimant desiring a lump sumaward could secure one by proposing to invest it. This would defeat the statutory intent of Montana's Workers' Compensation scheme, aslumpsumawards are to be the exception. Section 39-71-741, MCA. (Emphasis added.)

Therecord showsthat with the exception of Evans' testimony, which the court did not find particularly credible, the court was not

7presented with any evidence which would have prompted it to grant

Evans' request for alump sumconversion. Thecourt did not abuse its discretion when it denied Evans' request for a lump sum conversion. ISSUETWO Did the Workers' Compensation Court correctly conclude that the 1994 contract for lump sumadvance is clear and unambiguous? Evans argues that the provision in his signed petition for lump sumadvance which states his understanding that the amount advanced to him would be recovered by age 65is ambiguous. Evans contends that the provision is susceptible to the interpretation andunderstanding hehadwhenhesigned 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 mayrecoup this lump sum advance from anytype of biweekly benefits or anytype of award or settlement I receive in the future: I UNDERSTAND:Theabove amount will berecovered by age SIXTY FIVE (65).

Thecourt 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 onthe matter, anddenied Evans' request that the court order State Fundto recoup its 1994advance from the distal endof his benefits, after he reaches age 65.

8Thecourt's conclusion that the provision is unambiguous is a

conclusion of law. Wemust determine if that conclusion was correct. Stanley Structures, 833 P.2d at 169. The provision expressly allows State Fundto 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. Thecourt correctly concluded that the provision clearly and unambiguously allows State Fundto 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 65were also correct. "The rule has long been that where no ambiguity exists in the written documents, no parol evidence maybe taken, and the duty of the court is simply to apply the language aswritten." Montana Bankof Circle v. Ralph Meyers &Son, Inc. (1989), 236Mont. 236, 243, 769 P.2d 1208, 1212 (citation omitted). Affirmed.

9-weconcur :

Justices

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