No. 89-479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ROSE LEE WINCHELL, 

Claimant and Appellant, 

G & B MOTORS, INC., 

Employer, 

and 

WESTERN GUARANTY FUND SERVICES, 

Defendant, Respondent and 

Cross-Appellant. 

APPEAL FROM: The Workerst Compensation Court, 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald R. Marble; Marble Law Office, Chester, 

Montana 

For Respondent: 

K. Dale Schwanke; Jardine, Stephenson, Blewett & 

Weaver, P.C., Great Falls, Montana 

Filed: 

Submitted on Briefs: June 28, 1990 

Decided: November 8, 1990 J 
Justice Diane G. Barz delivered the Opinion of the Court. 

This appeal arises from a judgment entered by the Workers1 

Compensation Court. Both claimant and Western Guaranty Fund 

Services appeal. We affirm in part and remand. 

On June 1, 1981, claimant injured her lower back while helping 

two co-workers carry a new pickup box to a wrecked pickup truck. 

It is undisputed that claimant's injury occurred while in the 

course and scope of employment with G & B Motors, whose carrier is 

1 

Western Guaranty Fund Services (insurer). Claimant was 

hospitalized at the Northern Montana Hospital from June 5, 1981 to 

June 14, 1981. Claimant's treating physician, Dr. James E. 

Elliott, diagnosed her injury as a severe paravertebral muscle 

spasm. Claimant returned to work on July 1, 1981, and at that time 

was taking medications to relieve her back pain. 

On September 20, 1981, during her lunch break at work, 

claimant fainted and was found lying on a concrete floor. She was 

taken to Dr. Elliott for medical services. Claimant told Dr. 

Elliott that she was experiencing back pain and that the back pain 

was related to the industrial accident of June 1, 1981. Claimant 

stopped working near the end of October, 1981, and has not worked 

since. 

On July 6, 1981, claimant filed a workers' compensation claim. 

The insurer accepted her claim and paid benefits from June 3, 1981 

to June 30, 1981. The insurer denied subsequent demands for 

benefits, claiming that claimantls problems were not due to the 

June 1, 1981 accident on the basis that the claimant had returned 
to work and that it had received no medical reports since the last 

report of June 5, 1981. 

Claimant filed a petition with the Workers' Compensation Court 

to resolve the dispute between herself and the insurer. A trial 

was conducted on September 30, 1986 before the Workers' 

Compensation Court. The issues before the court were whether the 

claimant was temporarily totally disabled, permanently totally 

disabled, or permanently partially disabled, and if permanently 

partially disabled, whether claimant was entitled to permanent 

partial disability benefits. Also in issue was whether claimant 

was entitled to attorney's fees and costs and a 20% penalty. 

The court heard the testimony of the claimant and nine 

witnesses. Other testimony was presented to the court by way of 

post-trial depositions of various physicians and psychologists who 

had treated or examined the claimant. Conflicting testimony was 

presented regarding claimant's condition. For example, claimant's 

treating physician and a psychologist opined that claimant's pain 

was legitimate while two other physicians opined that claimant was 

malingering for economic gain. 

On December 22, 1987, the Workers' Compensation Court entered 

its findings of fact and conclusions of law and judgment. The 

court concluded that claimant's disability and benefits could not 

be determined at that time. Claimant was ordered to undergo 

further testing, treatment and evaluation at a pain clinic to be 

selected by the parties. The court retained jurisdiction and 

ordered the insurer to pay $93.33 per week in interim temporary 
total benefits until a final judgment was issued. The court also 

determined that claimant was not entitled to a 20% penalty and the 

issue of attorney's fees and costs were held in abeyance until 

issuance of final judgment. 

After the issuance of the court's order there were numerous 

post-judgment motions filed and eventually claimant underwent 

treatment and evaluation at the Montana Deaconess Pain 

Rehabilitation Center in Great Falls from May 22, 1988 until June 

17, 1988. The insurer, under order of the court, paid the cost of 

claimant's treatment at the pain clinic. 

A rehearing was conducted on October 18, 1988 before a 

hearing examiner. The evidence submitted was limited to the time 

period after the first trial. However, the parties stipulated that 

the court could rely upon the record already before it in addition 

to further evidence in making its determination on rehearing. On 

rehearing, claimant again testified as did her vocational expert. 

Others testified for the defense. Post-trial depositions were 

taken of the insurer's vocational expert and of the director and 

personnel from the pain clinic. 

On July 7, 1989, the Workers1 Compensation Court entered its 

findings of fact, conclusions of law and judgment. The court held 

that: (1) claimant is permanently partially disabled and under 5 

39-71-703, MCA (1979), is entitled to 500 weeks of permanent 

partial benefits at the rate of $26.68 per week; (2) insurer is to 

receive credit for benefits paid after December 22, 1987; (3) 

claimant is not entitled to any temporary total disability 
benefits; and (4) claimant is entitled to attorney's fees based on 

the amount of benefits now awarded above the benefits paid by the 

insurer since December 22, 1987. Other facts will be discussed as 

necessary. 

The issues raised by claimant on appeal are: 

1. Did the Workers1 Compensation Court err in its 

determination of claimant's permanent partial disability benefit 

rate? 

2. Do the findings of fact and conclusions of law support the 

Workers1 Compensation Court's determination that claimant is not 

entitled to back temporary total disability benefits? 

3. Did the Workers1 Compensation Court err in its 

determination of claimant's attorney's fees and in denying claimant 

a 20% increase in her award pursuant to 5 39-71-2907, MCA (1979)? 

The insurer presents the following additional dispositive 

issue on cross-appeal: 

Did the Workers' Compensation Court err in ordering a 

rehearing? 

The Workers1 Compensation Court determined that claimant is 

entitled to 500 weeks of permanent partial disability benefits at 

the rate of $26.68 per week, pursuant to 5 39-71-703, MCA (1979), 

which states in pertinent part: 

Compensation for in juries causing partial 

disability. (1) Weekly compensation benefits for injury 

producing partial disability shall be 66213% of the actual 

diminution in the worker's earning capacity measured in 
dollars, subject to a maximum weekly compensation of onehalf the state's average weekly wage. 

On appeal, claimant contends the court's finding that she is 

entitled to benefits at the rate of $26.68 per week is not 

supported by substantial credible evidence. The insurer, in turn, 

argues that claimant is not entitled to any permanent partial 

disability benefits because claimant failed to prove by a 

preponderance of the medical evidence that she was permanently 

partially disabled. 

We begin with whether the Workers1 Compensation Court erred 

in its determination that claimant is permanently partially 

disabled. It is well settled that decisions of the Workers' 

Compensation Court will be upheld upon a finding of substantial 

credible evidence. Snyder v. San Francisco Feed & Grain (1987), 

230 Mont. 16, 25, 748 P.2d 924, 929; Tocco v. City of Great Falls 

(1986), 220 Mont. 221, 226, 714 P.2d 160, 163. The determinative 

question, therefore, is whether in looking at the record as a 

whole, substantial credible evidence exists to support the decision 

of the Workers' Compensation Court that claimant is permanently 

partially disabled. In reviewing the record on appeal, we find the 

medical evidence, together with the other evidence, is sufficient 

to establish that claimant is permanently partially disabled. 

Section 39-71-116(12), MCA (1979), defines permanent partial 

disability 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. 
It is undisputed that claimant's accident and injury occurred while 

in the course and scope of her employment with G & B Motors. The 

evidence shows that prior to the accident, claimant had been a 

strong person with no history of previous back problems. 

Claimant's position with G & B Motors involved cleaning duties 

including cleaning floors, washing and vacuuming cars, changing 

tires, and cleaning water, mud, oil and dirt from a sump pit and 

carrying this sludge in two five-gallon buckets weighing 40 to 50 

pounds apiece. These duties required heavy lifting, kneeling, 

bending and pushing. 

The evidence also shows that after the accident claimant went 

to numerous physicians and all diagnosed a soft tissue injury. 

Claimant's treating physician, Dr. Elliott, testified that most 

cases of pain have a psychological component and in claimant's case 

there is a high psychological basis to her pain. Additionally, Dr. 

Shubat, a clinical psychologist, testified that claimant is ''a 

characteristic long-term, low-back pain, pain patient." 

Dr. Elliott, Dr. Shubat, and Dr. Labunetz, a neurologist, all 

were of the opinion that claimant's problems began with her 

industrial injury, based on a reasonable degree of medical 

certainty and all testified claimant would benefit from treatment 

at a pain clinic. Dr. Elliott further testified that without 

treatment at a pain clinic, claimant's condition would remain the 

same. 

Dr. Hinde, the director of the pain clinic, testified that 

upon entry into the pain clinic claimant had all the 

7 
characteristics of a chronic pain patient. He noted claimant's 

inconsistent behavior regarding her pain and testified that this 

is frequently seen in a chronic pain state and does not necessarily 

indicate malingering. Dr. Hinde diagnosed claimant as suffering 

from predominately myofascial pain or soft tissue-based pain, which 

followed a lumbar strain injury. Dr. Hinde was of the opinion that 

claimant's discomfort occurred as a result of the industrial 

injury, based on a reasonable degree of medical certainty. 

The record shows claimant performed very well at the pain 

clinic and her condition improved dramatically. At the time of 

discharge claimant only had occasional reports of discomfort which 

did not interfere with any of the physical activities she was asked 

to perform. However, claimant still suffers from limitation in her 

functional capacity. Occupational therapist Kelly Scott in her 

discharge summary found claimant could return to work in a mediumrange employment where lifting is not greater than twenty-five 

pounds. Additionally, standing and sitting was limited to I1[o]ne 

hour at a time, no more than 4 hours total out of [an] 8-hour day. 

The Workers1 Compensation Court, after reviewing the 

supplemental medical evidence and the testimony of the parties1 

vocational experts, found that claimant could return to work and 

earn essentially the same wage, $3.50 to $4.00 per hour, as before 

her injury. However, the court also considered the other factors 

for determining earning capacity set forth in Beck v. Flathead 

County (1988), 230 Mont. 294, 749 P.2d 527. The court in 

conclusion of law number 3 stated the following: 
The other factors that must be included in the 

determination of a loss in earning capacity under Section 

39-71-703, MCA, include claimant's age, (42); education 

and training, (ninth grade education with no vocational 

training); her previous health (good, although there may 

have been a preexisting lumbar disc disease aggravated 

by the injury). She has been released for light or 

medium work. She does experience pain, which can be 

minimized by following the pain clinic recommendations. 

Her 10 percent impairment rating recognizes her pain, 

which does limit her ability to work long hours standing, 

or in one position. 

Claimant's vocational witness testified that the 

claimant has a 78 percent reduction in her job market, 

as a result of the injury. However, she testified that 

the claimant was earning entry-level wages of $3.50 at 

the time of the injury and at this date, could also work 

at entry-level wages and therefore had no actual wage 

loss at this time. 

Defendant's vocational consultant, D. Bruce 

Carmichael, testified that the claimant could return to 

her job at the time of her injury or a number of 

vocational alternatives, which paid equivalent to or 

greater than what she was earning at the time of her 

injury. 

In considering all of the above factors, the Court 

concludes that the claimant did suffer a loss of earning 

capacity under Section 39-71-703, MCA, and with her 

difficulty in competing in her reduced labor market, has 

suffered a loss of earning capacity of $1.00 per hour, 

or $40.00 per week. Claimant's entitlement to permanent 

partial benefits under Section 39-71-703, MCA, is 66 2/3 

percent of her actual diminution in earning capacity, 

which is $40.00 times 66 2/3 percent, or $26.68 per week. 

Since claimant's injury is a back injury, not scheduled 

in Section 39-71-705, MCA, claimant is entitled to 500 

weeks, or a maximum of $13,340.00. 

The insurer argues that claimant has failed to prove her 

disability by a preponderance of the medical evidence. In support 

of its argument the insurer points out the testimony of those 

medical experts who were of the opinion that claimant was a 

malingerer. The insurer also stresses that testimony was elicited 

from pain clinic personnel. regarding claimant's inconsistent pain 
behavior. However, this Courtts function upon review is to 

determine whether substantial credible evidence exists to support 

the Workerst Compensation Court's findings of facts and conclusions 

of law; it is not this Court's function to determine whether there 

is sufficient evidence to support contrary findings. OtBrien v. 

Central Feeds (Mont. 1990), 786 P.2d 1169, 1172, 47 St.Rep. 251, 

254. We hold that the Workers1 Compensation Court did not err in 

finding claimant permanently partially disabled. 

Having concluded that substantial credible evidence exists 

supporting the lower courtts determination that claimant is 

permanently partially disabled, we now turn to whether the court 

erred in its determination of claimant's benefit rate. As noted 

earlier, the Workers1 compensation Court found that claimant is 

entitled to benefits at the rate of $26.68 per week. claimant 

contends that the correct rate is $93.33 per week, arguing that the 

court totally ignored the testimony of claimant's vocational expert 

that claimant suffered a 78% reduction in her job market as a 

result of the injury. She claims that the court missed the point 

presented by her vocational expert that the only work claimant 

would be able to find in her normal labor market would be in Havre, 

twenty-eight miles away from home, and that the work, due to her 

back pain, could only be part-time work. 

In the personal injury context, the impairment of earning 

capacity has been defined as 'Ithe permanent diminution of the 

ability to earn money in the future.'' Thomas v. Whiteside (1966), 

148 Mont. 394, 397, 421 P.2d 449, 451. "Pre-injury and post-injury 
wages are but one factor to consider when determining earning 

capacity. Earning capacity also includes age, occupational skills, 

education, previous health, remaining number of productive years 

and degree of physical or mental impairment." (Citation omitted.) 

Beck v. Flathead County (1988), 230 Mont. 294, 296, 749 P.2d 527, 

529. "The correct test for loss of earning capacity is whether the 

injury has caused la loss of ability to earn in the open labor 

market. l1 (Citation omitted.) Beck, 749 P.2d at 529. 

In the case at bar the Workers1 Compensation Court 

appropriately considered the factors in determining earning 

capacity. The court found that claimant does have a number of 

vocational alternatives and although claimant does experience pain, 

the pain can be minimized by following the pain clinic's 

recommendations. We hold that substantial credible evidence 

supports the Workers1 Compensation Court's determination of 

claimant's earning capacity and her permanent partial disability 

benefit rate. 

Claimant argues the Workers1 Compensation Court's findings 

after the rehearing do not support a conclusion that claimant is 

not entitled to temporary total disability benefits. She contends 

the issue of temporary total disability benefits was still before 

the court at the time of the rehearing but the court's findings are 

silent on the issue and the only reference regarding this issue is 

the court's conclusion of law number 4: 
Claimant is not entitled to any temporary total 

disability benefits. 

This Court did not find any temporary total 

disability benefits due prior to the Judgment of December 

22, 1987, and the evidence presented after that date at 

the rehearing does not change that determination. 

Claimant argues this is an unacceptable conclusion because 

nothing in the court's judgment following the first trial indicated 

that the court at that point felt claimant was not entitled to 

temporary total wage loss benefits. We agree. 

The Workers' Compensation Court, after the initial trial, made 

numerous findings detailing the conflicting testimony which was 

presented as to whether claimant's back pain was legitimate or 

whether she was malingering. The court then made the following 

pertinent conclusions of law: 

2. Claimant's disability and benefits cannot be 

determined by this Court at this time. . . . 

While it is undisputed that claimant suffered an 

injury to her back from an industrial injury that arose 

out of and was in the course of her employment, serious 

questions exist as to claimant's current physical 

condition. 

The record in this case is sated with conflicting 

testimony as to whether claimant's alleged back pain is 

legitimate or whether she is malingering. . . . 

Therefore, it is this Court's decision that claimant 

shall be ordered to undergo further testing, treatment 

and evaluation at a pain clinic. This Court will retain 

jurisdiction over this matter and will delay its final 

decision until submission of a report by the pain clinic 

is received pursuant to the Judgment below. 

3. Claimant is to receive interim temporary total 

benefits which are to begin on the day of this Judgment 

and are to continue until the final decision of this 

matter. 
Claimant has not worked since terminating with 

employer in October of 1981 and, therefore, has suffered 

a complete loss of wages. There is no question that 

claimant sustained a compensable industrial accident in 

June of 1981. The only issue is whether claimant is 

still incapacitated because of that injury. Because this 

Court is unable to make a decision as to that issue until 

further medical testimony is submitted from the pain 

clinic, this Court finds that interim temporary total 

benefits of $93.33 a week are appropriate under these 

circumstances. . . . 

These conclusions are inconsistent and conflicting with the 

court's conclusion of law number 4 entered after the rehearing. 

The Workers1 Compensation Court did not make a determination that 

claimant was not entitled to temporary total disability benefits. 

The court noted that, due to the conflicting evidence of claimant Is 

physical condition, it was unable to determine claimant's 

disability and benefits, including whether claimant was temporarily 

totally disabled, and therefore expressly resewed ruling on these 

issues until further medical evidence could be obtained. After the 

rehearing, the court made findings relating to claimant's 

attendance at the pain clinic and concluded that claimant was 

permanently partially disabled. It was from testimony regarding 

claimant's physical condition after treatment at the pain clinic 

that the court was able to come to a determination that claimant 

was permanently partially disabled. However, although the issue 

was before the court at the time of the rehearing, no definitive 

findings were made regarding whether claimant was temporarily 

totally disabled from the time claimant terminated employment with 

G & B Motors in October, 1981 until interim total disability 

benefits were ordered by the court on December 22, 1987. 
We hold that the findings of fact and conclusions of law are 

conflicting within, and remand this issue to the Workers' 

Compensation Court for further proceedings to determine what 

temporary total disability benefits are due, if any, from the time 

claimant terminated employment with G & B Motors until the date of 

permanent partial disability. 

111. 

In its judgment after the rehearing the Workers1 Compensation 

Court awarded claimant attorney's fees based on the amount of 

compensation benefits awarded her at that time above the benefits 

paid by the insurer after December 22, 1987. The court's rationale 

in limiting the attorney's fees award was that the court considered 

it unwarranted to compensate claimant's counsel at the insurer's 

expense for the court's independent decision to order a pain clinic 

evaluation. The court stated attendance at a pain clinic was not 

requested by claimant nor was it part of her case. 

Claimant contends she should receive attorney's fees based on 

back temporary total disability benefits, permanent partial 

disability benefits and the attendance at the pain clinic, arguing 

that she made attendance at a pain clinic part of her case. 

The insurer also contests the Workers1 Compensation Court's 

award, asserting that claimant was not entitled to an award of 

attorney's fees. The insurer argues the court stated in its 

initial decision of December 22, 1987 that claimant had elected to 

waive any claim to attorney's fees and costs in exchange for going 
forward with the case and taking post-trial depositions of medical 

providers. The insurer contends the court's position on the issue 

of attorney's fees and costs was based on the claimant's failure 

to exchange all pertinent medical information by the time of the 

first trial. 

When reviewing an award of attorney's fees this Court will not 

disturb the award absent an abuse of discretion by the lower court. 

Martinez v. Montana Power Co. (1989), 239 Mont. 281, 285, 779 P.2d 

917, 920. Our review of the record reveals that although the issue 

of referring claimant to a pain clinic was not raised before trial, 

this issue was presented to the court during the initial trial. 

In his opening statement, claimant's counsel stated: 

The medical testimony is to be introduced later. The 

records we have now indicate she should be referred to 

a pain clinic. We are not exactly sure how the court 

would handle this, but our feeling right now is that she 

is probably still in a healing phase. She checked out 

of the Northern Montana Hospital to come here for this 

hearing today, she was in traction and, due to extreme 

pain, she was medicated. It has been since recommended 

that she be referred to a psychological pain clinic. As 

far as I can tell she is probably in some sort of a 

healing phase. If the court felt that she is probably 

more in a presently permanently-total condition, then we 

think that would be reasonable. We aren't here to ask 

for permanent-partial benefits or permanent-total 

benefits, because we are really concerned she get 

adequate medical care at this point, that the insurer be 

required to pay for this. 

Moreover, claimant's attorney elicited the testimony from 

claimant's medical providers regarding the need for a pain clinic. 

In its December 22, 1987 decision, the Workers's Compensation 

Court noted that the following occurred at the commencement of the 

trial : 
At trial, a discussion ensued between the Court and 

counsel relative to the status of the exchange of medical 

information and after that discussion, the Court gave the 

claimant the alternative of proceeding with the 

understanding the claimant would be limited to the 

medical the claimant had in her possession on July 16, 

1986, when her petition was filed and any examination 

post-trial would be limited to that period, or the 

claimant could proceed on the basis she would waive any 

claim to attorney's fees or costs but would be able to 

take post-hearing depositions with the medical evidence 

the claimant had at the time of trial to be submitted to 

the Court through the deposition process. Claimant chose 

the latter course. 

Although we recognize that the fixing of attorney's fees is 

within the lower court's discretion, from our review of the record 

we are unable to determine the reasons why the court subsequently 

granted claimant limited attorney's fees after previously noting 

that claimant had elected to waive any claim to attorney's fees and 

costs. 

Because this Court is unable to determine whether or not the 

Workers' compensation Court abused its discretion in fixing 

claimant's award of attorney's fees, we remand this issue to the 

Workers1 Compensation C0ur.t. The Workers' compensation Court is 

instructed to conduct such further proceedings as are necessary and 

again consider the amount of attorney's fees claimant is entitled 

to, if any, taking into consideration its findings and conclusions 

on remand regarding claimant's back temporary total disability 

benefits, claimant's permanent partial disability benefits, 

claimant's attendance at the pain clinic and the possibility of 

claimant's waiver of any claim to attorney's fees and costs. 

Claimant further asserts she is entitled to a 20% penalty 

under § 39-71-2907, MCA (1979), arguing there was no legitimate 
dispute between the parties such that the insurer was justified in 

rejecting her claim after paying less than one month of benefits 

in 1981. We disagree. Our review of the record finds no evidence 

to show that it was unreasonable for the insurer to deny benefits 

under the circumstances of this case. This is especially true 

given the Workers1 Compensation Courtls inability to come to a 

conclusion as to disability and benefits after the initial hearing. 

We hold that the Workers1 Compensation Court properly denied 

claimant a 20% increase in her award. 

Cross-Appeal 

On cross-appeal the insurer argues claimant was not entitled 

to a new trial because claimant neither requested a new trial nor 

did she have grounds for one pursuant to 88 25-11-103 and 25-11- 

102 (I), (3) and (4), MCA, which set forth the bases for which a 

court sitting without a jury may grant a new trial. 

The record demonstrates that it was the insurer, not the 

claimant, who filed a petition for I1Rehearing or Modification of 

Findings of Fact and Conclusions of Law and Judgment." In its 

petition the insurer argued that the decision of the Workers1 

Compensation Court was in error and that the insurer was entitled 

to a rehearing or an amendment of the decision. In granting the 

petition and ordering a rehearing, the Workers1 Compensation Court 

noted claimant had not responded to the petition and had not 

complied with the courtls order to begin evaluation at a pain 

clinic. The court found it had no alternative but to grant the 
insurer's motion since claimant's failure to respond to the 

petition and to move the case forward lead to the conclusion that 

the insurer's petition had merit. 

The insurer, having filed the petition for rehearing in the 

first place, is in no position to argue the court erred in granting 

its motion. We hold the Workers' Compensation Court did not err 

in ordering a rehearing. 

Affirmed in part and remanded in part with instructions. 

We concur: y / 

CH J tices