No. 86-361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JESSE CUELLAR, 

Claimant and Respondent, 

-vsNORTHLAND STEEL, Employer, 

and 

ROYAL INSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Herndon, Harper & Munro; Donald R. Herndon, Billings, 

Montana 

For Respondent: 

John S. Yoder, Billings, Montana 

Submitted on Briefs: Jan. 22, 1987 

Decided: April 21, 1987 

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Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Royal Insurance Company appeals a Workers' Compensation 

Court decision that claimant is eligible for temporary total 

disability benefits and entitled to attorney fees from the 

date of judgment rather than the date of injury. Two issues 

are presented on appeal: 

(1) Whether there is substantial evidence to support a 

finding that claimant is eligible for workers' compensation 

benefits. 

(2) Whether claimant's attorney fees are to be 

determined under the statute in effect at the date of injury 

or the date of judgment. 

We affirm in part and reverse and remand in part. 

Claimant injured his back in May 1983 while working for 

Northland Steel in Billings, Montana. Northland's insurance 

carrier, Royal Insurance, (hereinafter insurance company) 

paid workers' compensation temporary total disability 

benefits from June 1, 1983 to June 30, 1984. Claimant's 

treating orthopedic surgeon rendered a 3% impairment rating 

and released claimant to return to work. Pursuant to the 

surgeon's report, the insurance company terminated the 

payment of benefits to claimant. Claimant made further 

complaints about his physical condition from September to 

December, 1984. On December 6, 1984, the orthopedic surgeon 

referred claimant to a neurologist who in turn referred 

claimant to Dr. William Wilson, a rheumatologist. On March 

28, 1985, Dr. Wilson diagnosed the symptoms of arthralgias 

and myalgias (arthritic changes) which were, in his opinion, 

precipitated by claimant ' s accident at work. During the 

intervening period of September 10, 1984, to June 3, 1985, 

claimant received 38 weeks of unemployment insurance benefits 

at a rate of $148 per week, or a total of $5,624. Claimant 
certified to the state that he was able and actively seeking 

work and signed a form promising to repay any unemployment 

benefits upon subsequent receipt of workers' compensation 

benefits. On September 6, 1985, the insurance company agreed 

to pay temporary total disability benefits but refused to pay 

benefits for the 38 weeks during which claimant received 

unemployment benefits. The Workers' Compensation Court 

reviewed the medical evidence and found that the decision to 

release claimant to work was incorrect. The court cited 

testimony from the doctor granting the release that claimant 

had not reached maximum healing by July 1984, the date on 

which the doctor gave claimant an impairment rating of 3% of 

the whole person. Dr. Wilson concurred in this opinion and 

ultimately concluded that claimant's physical problems were 

caused by the industrial accident. It was shown that the 

doctor granting claimant's release relied upon the job 

analysis of a rehabilitation supervisor who had concluded 

that the physical demands of the job were within claimant's 

post-injury abilities. The court found claimant to be 

entitled to temporary total disability benefits for the 38 

weeks he received unemployment benefits, ordered claimant to 

repay the unemployment benefits to the state and awarded 

claimant reasonable attorney fees under S 39-71-612, MCA, as 

amended in 1985. 

The standard of review is whether there is substantial 

evidence to support the findings and conclusions of the 

Workers' Compensation Court. We cannot substitute our 

judgment for that of the trial court as to the weight of the 

evidence on questions of fact. Where there is substantial 

evidence to support the Workers' Compensation Court, this 

Court cannot overturn the decision. Coles v. Seven Eleven 

Stores (Mont. 1985), 704 P.2d 1048, 42 St.Rep. 1238. 
Temporary total dj-sability is defined as a condition 

resulting from an injury that results in total loss of wages 

and exists until the injured worker is as far restored as the 

permanent character of the injuries will permit. Disability 

shall be supported by a preponderance of medical evidence. 

See § 39-71-116 (19), MCA. 

The question in this case is whether claimant reached 

maximum healing by September 10, 1984 and remained in that 

status through June 3, 1985. Substantial medical testimony 

supports the conclusion that claimant had not reached maximum 

healing by June 1984, when claimant was given his release to 

work, or by September 1984, when claimant began receiving 

unemployment benefits. Dr. Wilson, claimant's treating 

physician during the time in which claimant received 

unemployment benefits, testified that claimant's physical 

problems were continuing and concluded that claimant had not 

reached maximum healing. The evidence supporting the lower 

court's decision is substantial and therefore justifies the 

payment of temporary total benefits for the 38 weeks claimant 

received unemployment benefits. We also concur that claimant 

must repay the unemployment benefits he received for those 

same 38 weeks. 

The second issue is whether claimant's attorney fees 

are to be determined under the statute in effect at the date 

of injury or the date of judgment. We have held that the 

size of an attorney fee award in a workers' compensation case 

is determined by the statute in effect on the date of injury. 

Cadwell v. Industrial Indemnity Company (Mont. 1987), 

P.2d , 44 St.Rep. 370, citing Trusty v. Consolidated 

Freightways (Mont. 1984), 681 P.2d 1085, 41 St.Rep. 973. In 

Trusty, we held that the statutes in effect on the date of 

injury determine the benefits to be received and establish 

the contractual rights and debts of the parties. Moreover, 
Cadwell says that a statute should not be applied 

retroactively unless the legislature clearly expresses an 

intention to so apply it. Cadwell, P.2d at I 44 

St.Rep. at 372. 

We hold that the statute in effect at the time of 

claimant's injury in 1983 controls as to size of the attorney 

fee award. We refuse to retroactively apply the amended 

statute due to the absence of any legislative indication to 

do so. We therefore reverse and remand to the lower court on 

the attorney fee issue with instructions to apply the law in 

effect as stated in Cadwell. 

Affirmed in part, reversed and reman 

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