No. 13399 IN THE SUPREPlE COURT OF THE STATE OF MONTANA 1977

JOHN CLARK, Claimant and Appellant,

HENSEL PHELPS CONSTRUCTION CO., Employer and AETNA CASUALTY & SURETY CO., Insurer and Respondent.

Appeal from: Workers' Comp. Court Judge William E. Hunt, presiding. Counsel of Record: For Appellant: Hoyt and Bottomly, Great Falls, Montana John C. Hoyt argued, Great Falls, Montana Thomas Lewis appeared, Great Falls, Montana For Respondent: Jardine, Stephenson, Blewett & Weaver, Great

Falls, Montana James Aiken argued, Great Falls, Montana

Submitted: January 27, 1977 Decided: FEB

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Filed: 

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### g/IMr. JusticeJohn Conway Harrison delivered the Opinion of the Court.
This appeal concerns written notice to claimant and approval of the Division ofWorkers' Compensationprior to the termination of workers' compensationbenefits to an injuredworkman. Claimant John Clark was injured in an industrial accident onAugust 16, 1973. He was employed by Hensel Phelps Construction Co. insured under Plan I1 of theWorkers' CompensationAct. Aetna Casualty & Surety Co., "carrier",was the construction company's insurer. Clarkwas paid temporary total disability benefits from the date of the accident through October 2, 1973. The carrier stopped payment of benefits without notice to claimant or approval of the Division ofWorkers' Compensation. InJune 1975, claimant requested a hearing before the Workers' CompensationCourt. That court found claimant entitled to temporary total disability benefits from the date of the accident through October 2, 1973 and again from October 28, 1975 until further order of the court or until the claimantwas able to return to work. No benefits were awarded for the period of October 3, 1973 through October 28, 1975,and it is from this omission claimant appeals. The record reveals the injury sufferedby claimantwas
an extremely painful and disabling back injury. Since the accident claimant has experienced recurcihg-burning pains in his lower back and left leg. The injury has created a weakness inhis left leg causing a limpwhich is becoming progressively more pronounced. Immediately after the accident claimantwas examined by Dr. Schroeder in Eureka,Montana. Dr. Schroeder diagnosed claimant's

1I injury as a muscle spasm, left lumbar" and referred him to aspecialist. Later Dr. Schroeder informed the carrier claimant could return towork on October 3, 1973. This bpinion was used by the carrier as thebasis for termination of workers' compensationbenefits to claimant. The record isclear, claimant was unable todo any kind of physical labor for the period inquestion. From the date of the accident through October 1975, claimant was examined by at least eight different doctors for treatment for his injured back. On October 28, 1975 claimant was examined for the first time by Dr. Richard A. Nelson. On that dateDr. Nelson determined claimant was disabled and unable to engage inhisnormal kind of work as a result of the existing back injury. Apparently Dr. Nelson's report was used by theWorkers' Compensation Court in fixing the date for the resumption of benefit payments to claimant. There was no reason given by the court for the failure to require the carrier to comply with the notice and approval provisions of theWorkers' Compensation Act prior to the termination of compensation benefit payments. Atissue is the necessity of giving claimant written notice and acquiring approval of the Division of Workers' Compensation, prior to the termination of benefits. The controlling section of theWorkers' CompensationAct is section 92-615, R.C.M. 1947, amended in 1974, but provided in 1973: 

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# ** If the insurer determines to initially deny a claim, or after a claimhas been accepted, terminates biweekly compensation benefits, it may do so only after fifteen (15) days written notice to the claimant and the division, and afterwritten approval of the division."The effect of this statute upon a fact situationas in the instant case, is a matter of first impression. However, the statute clearly and unambiguously states that notice to claimant and the division, and writtenapprovalof the divisionare prerequisites to the termination of compensationbenefits. Where the language of a statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court construe. Hammill v. Young, Mont

# . , 540 P.2d 971, 32 St. Rep. 935;Dunphyv. Anaconda Co., 151Mont. 76,438 P.2d 660. The Rhode IslandWorkmens' Compensation Act contains a provision similar to section 92-615,R.C.M. 1947. Rhode Island General Laws 1956, section 28-35-46 states in pertinent part: "Before an employer may discontinue, suspend or reduce compensationpayments whether they are being received under an agreement,award,order, finding or decree, the employer shall notify the commission and the employee of his intention to discontinue, suspend or reduce payments and the reason therefor.* 

# * &'' An interpretationof the effect this statute fact situation similar to the instant case is found in Carpenter v. Globe IndemnityCo., 65 R.I. 194, 14A.2d 235, 240. There the carrier terminated compensationpayments to an injuredworkman
on the basis of a doctor's reportwhich stated claimantwas able to return to work. Claimant denied receiving notice of the termination of benefits and it was clear the Workers' Compensation Commission had received no suchnotice. The court found the unilateral termination ineffectivenoting: "9; 

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# * In our opinion, a finding that such disability has ended or diminished canbe reached only by a supplemental agreement,also approved by the director of labor 

## * Jc **'I A more recent case Raymond v. B.I.F. Industries,Inc., 112R.I. 192, 308A.2d 820 is in accord.It is clear Rhode Island courts interpret their statute
as meaning the employer or his insurermay not unilaterally terminate workers' compensationbenefits. Further, if the employer does attempt to unilaterally terminate the payment of benefits such attempted termination is ineffective. The employer remains liable for the payment ofbenefits until the termination is accomplishedby following the statutorynotice provision. The cause is remanded to theWorkers'.Compensation Court with instructions to direct payments to claimant for the period October 

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### 28, 1975. With that exception,the decision of theWorkers' Compensation Court is affirmed.

We Concur:

Chief Justice 

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