No. 85-530 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

ROSE N. BUCKMAN, 

Claimant and Appellant, 

MONTANA DEACONESS HOSPITAL, 

Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Rea.rdon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lloyd E. Hartford argued, Billings, Montana 

For Respondent : 

Hughes, Kellner, Sullivan & Alke; Mike McCarter argued, 

Helena, Montana 

Submitted: July 24, 1986 

Decided: December 12, 1936 

Filed: DEC 12 1986 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Rose Buckman appeals the judgment of the Workers' 

Compensation Court denying her a conversion of her bi-weekly 

Workers' Compensation benefits to a lump-sum payment. 

Buckman's employer, Montana Deaconess Hospital and its 

insurer, the State Compensation Insurance Fund appealed a 

portion of the same judgment wherein the trial court 

concluded that insurers could not discount lump-sum 

conversions awarded for injuries which occurred prior to 

April 15, 1985. 

We affirm the Workers' Compensation Court in part, 

reverse in part, and remand for proceedings pursuant to this 

opinion. 

The issues presented to us concern constitutional 

challenges to the 1985 legislative amendment to § 39-71-741, 

MCA, first presented to the legislature as S.B. 281. 

Specifically, we are asked to decide: 

1. Whether the procedure outlined in S 39-71-741(2), 

MCA (1985), to guide the Workers' Compensation judge in 

determining whether lump-sum conversion of biweekly payments 

for permanent total injury will be awarded, as applied to 

conversions for injuries occurring before April 15, 1985, is 

constitut.ionally prohibited. 

2. Whether the prospective application of the procedure 

outlined in 39-71-741(2), MCA (1985), violates the equal 

protection guarantees of the Montana and United States 

Constitutions. 

3. Whether the directions contained j.n S 39-71-741(1), 

MCA (1985) , to discount to present value all conversions of 
lump sums as applied to conversions for injuries occurring 

prior to April 15, 1985, are constitutionally prohibited. 

4. Whether the Workers' Compensation Court erred in 

denying Buckman a lump-sum conversion of her biweekly 

henef its. 

In September, 1985, the Workers' Compensation Court 

entered its findings of fact and conclusions of law and 

judgment determining that the appellant Buckman, v7as 

permanently totally disabled and that she was entitled to 

disability benefits. The Court denied her request for a 

lump-sum conversion based upon her failure to meet the 

requirements set out in § 39-71-741(2), MCA. The court said 

the amendments found in S 39-71-741(2), MCA were procedural 

in nature and could therefore be applied in Buckman's case 

without offense to either constitution. Buckman had 

challenged the constitutionality of S 39-71-741, MCA, as 

applied to her case on the grounds that her injury predated 

the effective date of the amendments. The Workers' 

Compensation Court, relying on its earlier opinion in 

Stelling v. Rivercrest Ranches, Inc., WCC No. 8412-2757 

(1985) , concluded that the discounting provision, found in § 

39-71-741(1), MCA, if applied retroactively to Buckman's 

award, would violate the contract clauses of both the United 

States and Montana Constitutions. Ruckman appeals the 

judgment as it concerns 39-71-741(2), MCA, and the Hospital 

and State Fund appeal the judgment as it concerns § 

39-71.-741 (I), MCA. 

For the reasons stated below, we hold that: As to the 

first issue the application of 39-71-741(2), MCA is 

constitutionally prohibited as applied to injuries that 

occurred prior to April 15, 1985. As to the second issue we 
hold that the prospective application of the procedure does 

not violate the equal protection guarantees of the Montana 

and United States Constitutions. As to the third issue, we 

hold that discounting to present value conversions of 

lump-sums for injuries that occurred prior to April $5 1i85 

is constitutionally prohibited. Finally, as to the lump-sum 

conversion of claimant's biweekly benefits we remand for a 

determination of whether claimant is entitled to a conversion 

of her benefits in light of our construction of S 39-71-741, 

MCA . 

As to the first issue, Buckman challenges the 

retroactive application of the procedure contained in S 

39-71-741(2), MCA. That statute as amended states that it 

"must be used by the division and workers' compensation judge 

in determining whether a lump-sum conversion of permanent 

total biweekly payments will be approved or awarded . . ." 

Before discussing any constitutional questions, it is 

important that we consider the statutes which are to be 

applied to an injured worker with regard to lump-sum conversions or to normal benefits. 

Workers' compensation benefits are determined by the 

statutes in effect as of the date of injury. Trusty v. 

Consolidated Freightways (Mont. 1984), 681 P.2d 1085, 41 

St.Rep. 973; Iverson v. Argonaut Insurance Co. (Mont. 1982), 

198 Mont. 340, 645 P.2d 1366. 

In Trusty, we held that the standards for computations 

of benefits for the claimant are fixed by the statutes in 

effect as of the date of injury and concluded that the 

legislature could not enact a statute reducing the benefits 

to an injured worker by reason of social security benefits 

paid. We further stated: 
The statute in effect on the date of injury determines the benefits to be received . . . (Citations 

omitted). That sets the contractual rights and 

debts of the parties. In the instant case, once 

the 100% offset statute was found constitutionally 

unenforceable, that portion of the statute became 

void. This Court cannot come back and change the 

statute to a 50% offset. Once we found the statute 

constitutionally unenforceable, then no offset 

remains in effect. 

We hold that the benefits due to the appellant 

under his Workers' Compensation award shall not be 

reduced by a.n offset for Social Security benefits. 

The reasoning of the foregoing cases properly controls 

in the present case where we are involved with an application 

for a lump-sum conversion of permanent biweekly payments. We 

specifically hold that where an injured worker seeks a 

lump-sum conversion of biweekly benefits, the statutes in 

effect at the time of injury set the standards for either the 

award or refusal of a lump-sum conversion. 

We therefore conclude that the amendments made in 1985 

to § 39-71-741 (2) , MCA, cannot be applied in considering the 

Buckman application for a lump-sum conversion. We note this 

is consistent with the 1985 amendments as there is no 

provision in those amendments stating that any portion should 

be applied retroactively, with a single exception of the 

discount provision. 

The second issue is whether the prospective application 

of the procedure set out in § 39-71-741(2), MCA violates the 

equal protection guarantees of the Montana and United States 

Constitutions. We hold that it does not. 

After careful consideration of the language of the 

procedure set out in 39-71-741(2) and (3) and after 

reference to the legislative history we are convinced that 

those subsections merely codify, in detailed form, the prior 
case law which allowed a conversion of biweekly benefits when 

it was in the best interests of the claimant. 

During the hearings leading to the enactment of S.B. 281 

there was considerable discussion of more specific statutory 

language concerning the award of lump sums. The record of 

the February 14, 1985 meeting of the senate subcommittee is 

representative of the intent of the legislature when 

considering the specific language. Senator Haffey asked the 

administrator of the Workers' Compensation Division whether 

"if what he is talking about is language based on the 

experience of the last couple of years, under which lump sum 

payments are called for . . . Mr. Blewett replied yes." 

Our estimate that the legislative intent was to codify 

existing law, rather than altering the law, is borne out by 

examination of the procedure contained in S 39-71-741 (2) and 

(3) 

Subsection 2 directs the Workers' Compensation Court to 

award conversions "only if the worker or his beneficiary 

demonstrates that his ability to sustain himself financially 

is more probable with a whole or partial lump-sum conversion 

than the biweekly payments and his other available 

resources." The statute then goes on to lay out separate 

criteria to indicate what is meant by "sustain himself 

financially." We note here that the criteria in subsection 

2 (a), that the difference between the discounted value of a 

conversion and the future value of biweekly benefits cannot 

be the only grounds for a conversion, directly codifies the 

prior law of Kent v. Sievert (1971) , 158 Mont. 79, 489 P.2d 

104. The language contained in subsection 2(b) states that 

the improvement of a claimant's financial position should not 

be the basis of an award unless it can be awarded at the 
price of an annuity. This would cost the insurer the same as 

if it had purchased an annuity under the option contained in 

S 39-71-2207, MCA, and merely states the same rule as our 

holdings in Kent and in LaTTe v. School Dist. 82 (Mont. 19861, 

713 P.2d 546, 43 St.Rep. 1-65. 

Similarly, case law has required claimants to submit 

financial plans when outstanding or delinquent debt is the 

basis for a conversion request. Kuehn v. National Farmers 

Union Property and Cas. Co. (1974), 164 Mont. 303, 521 P.2d 

921. Furthermore where the court has found the outstanding 

debt was not so significant as to necessitate a lump-sum 

conversion, it has been denied. Ruple v. Bob Peterson 

Logging Co. (M.ont. 1984), 679 P.2d 1252, 41 St.Rep. 704. 

This prior law is directly reflected in the language of S 

39-71-741 (2) (c) . 

Subsection 2 (d) of that same statute likewise codifies 

prior case law requiring that a claimant show the worthiness 

of her business venture plan and the adequacy of her business 

acumen. - See Bundtrock v. Duff Chevrolet (1982) , 199 Mont. 

128, 647 P.2d. 856; Krause v. Sears, Roebuck and Co. (1982), 

197 Mont. 102, 641 P.2d 458. 

Finally, S 39-71-741(3) allows the division to order 

"financial, medical, vocational, rehabilitation, educational 

or other evaluative studies to determine whether a lump-sum 

conversion is in the best interest of the worker or his 

beneficiary." These tests reflect the historical ways in 

which a claima.nt could assert that a conversion was in her 

best interests other than by showing strict financial 

necessity. Prior case law has held a conversion to be in the 

best interests of a claimant where medical considerations 

required that the claimant and his family move to a different 
climate. Polich v. Whalen's O.K. Tire Warehouse (1983), 203 

Mont. 280, 661 P.2d 38. Prior case law has held it to be in 

the best interest of the claimant where diagnosed mental 

instability made the award of a lump sum necessary to relieve 

the claimant's abnormal anxiety. Legowik v. Montgomery Ward 

and Co. (1971), 157 Mont. 436, 486 P.2d 867. 

The legislative use of the term "best interest" further 

convinces us that 5 39-71-741(3), MCA, reflects the intent of 

the legislature to make explicit in the statutory language 

the previously used best interest test for the conversion of 

biweekly benefits. 

Subsection 3 itself does not mandate conversion of 

benefits. However, when read in combination with subsection 

5, giving the Workers' Compensation Court jurisdiction to 

make the final determination, the combination convinces us 

that subsection 3 provides an alternative method to qualify 

for a lump-sum award when strictly financial considerations 

do not mandate a conversion. This interpretation is 

buttressed by a May 7, 1985, policy statement from the 

Division of Workers' Compensation. 

In summary, we construe the language of the statute to 

represent no change from the law existing prior to April 15, 

1985, and to represent no significant change from the 

requirements placed on the permanently partially disabled by 

case law. Therefore because no rights have been burdened, 

nor any classification of claimants treated dissimilarly, we 

can find no violation of equal protection in the prospective 

application of the procedure set out in S 39-71-741, MCA. 

As to the third issue, Buckman challenged the amended 5 

39-71-741(1), MCA, as applied to her case, as a violation of 

her "rights under the Montana and United States 
Constitutions, including but not limited to her right to 

equal protection of the laws and due process of law." The 

Workers' Compensation Court held the discounting provision 

violated the state and federal constitutional prohibitions 

against impairments of contracts and susta-ined the procedural 

criteria against the same impairment of contract test. 

Consequently the lower court did not reach the due process or 

equal protection issues. 

In Montana we have repeatedly recognized that the state 

constitution provides protection of rights separate from the 

protection afforded by the federal constitution. State v. 

Johnson (Mont. 1986), 719 P.2d 1248, 1254-55, 43 St.Rep. 

1010, 1016-18; Pfost v. State (Mont. 1985), 713 P.2d 495, 

500-1, 42 St.Rep. 1957, 1963-64; Madison v. Yunker (1978), 

180 Mont. 54, 60, 589 P.2d 126, 129. 

Because the federal constitution establishes the floor 

and not the apex of constitutional rights, state action may 

violate our Montana Constitution, but not violate any federal 

constitutional guarantee. Therefore, pursuant to the wisdom 

in the rule that we will not search to reach any issue not 

necessary to dispose of the case, we will not reach a federal 

constitutional challenge unless and until the case may not be 

resolved on adequate and independent state grounds. 

We now turn our attention to the contract clause 

challenge before us. In the past we have generally 

interpreted the contract clauses found in Art. 11, 5 31, 1972 

Mont. Const. and Art. I, § 10 (1) , United States Constitution 

as interchangeable guarantees against legislation impairing 

the obligation of contracts. Nee1 v. First Federal Savings 

and Loan Assoc. (Mont. 1984), 675 P.2d 96, 103, 41 St.Rep. 

18, 25. Consistent with our intention to initially examine 
state grounds in an effort to resolve the issue, we turn to 

prior Montana contract clause case law for independent 

interpretation of our own prohibition of impairment of 

contract. Federal cases cited are relied on for their 

analytical persuasiveness but in no way mandate our decision. 

The Montana Constitution states, "No ex post facto law 

nor any law impairing the obligation of contracts, or making 

any irrevocable grant of special privileges, franchises, or 

immunities, shall be passed by the legislature." Art. 11, S 

31, 1972 Mont. Const. We have construed the two contract 

clauses interchangeably, and have cited United States Supreme 

Court opinions to test the validity of Montana legislation 

under both contract clauses. Neel, 675 P.2d at 103, 41 

St.Rep. at 25. 

The basis for Workers' Compensation is a contract of 

hire either express or implied. Section 39-71-117, MCA; 5 

39-71-118, MCA; 1C Larson Workmen's Compensation Law S 47.10 

(1986) . This Court, as well as courts of other states have 

held that Workers' Compensation is based on contract theory. 

Estate of Baker (Kan. 1977), 563 P.2d 431; Harris v. National 

Truck Service (Ala. 1975), 321 So.2d 690; Spengler v. 

Employers' Commercial Union and Insurance Co. (Ga. App. 

1974), 206 S.E.2d 693; Gaston v. San Ore Construction Co. 

(Kan. 1970) , 477 P. 2d 956; Nadeau v. Power Plant Engineering 

Co. (Ore. 1959), 337 P.2d 313; Morgan v. Industrial Accident 

Board (1956), 130 Nont. 272, 300 P.2d 954. 

This Court has assumed for a number of years that the 

Workers' Compensation statutes in effect on the date of 

injury set the contractual rights between the parties. 

Trusty, 681 P.2d at 1085, 41 St.Rep. at 973. This is 

consistent with the provisions of the Workers' Compensation 
Act that the term employee or worker means "each person in 

this state . . . who is in the service of an employer . . . 

under an appointment or contract of hire, express or implied, 

oral or written." Section 39-71-118, MCA. 

We approve the holding of the Kansas Supreme Court in 

Estate of Baker (Kan. 1977), 563 P.2d at 436: 

The liability of an employer to an injured or 

deceased employee arises out of the contract 

between them; the terms of the workmens' 

compensation statute are embodied in the contract. 

The substantive rights between the parties are 

determined by the law in effect on the date of the 

injury. (Citation omitted. ) However, the rights 

under the contract vest when the cause of action 

accrues, and the cause of action accrues on the 

date of injury or death. (Citations omitted. ) 

We conclude that this analysis is clearly applicable to 

this case where there is an application for conversion of 

biweekly benefits to a lump-sum payment. We hold that the 

liability of Montana Deaconess Hospital, employer, to 

Buckman, employee, arises out of the contract between them, 

and that the Workers' Compensation sta-tutes in effect on the 

date of the Buckman injury are a part of that contract. 

The question becomes whether the statute at issue in 

this case constitutes an impairment of the obligation of 

contract. We first turn to the three-tiered analysis set 

down by the United States Supreme Court in Energy Reserves 

Group, Inc. v. Kansas Power and Light Co. (19831, 459 U.S. 

400, 103 S.Ct. 697, 74 L.Ed.2d 569, and followed by this 

Court in Neel, 675 P.2d at 96, 41 St.Rep. at 18. The 

threshold inquiry is "whether the state law has, in fact, 

operated as a substantial impairment of a contractual 

relationship." Neel, 675 P.2d at 104, 41 St.Rep. at 27. 

Next, we must look to whether the state in justification, has 

a significant a.nd legitimate public purpose for the 
regulations. Finally, we must inquire whether the adjustment 

of the rights and responsibilities of the contracting parties 

are based on reasonable conditions and of a character 

appropriate to the public purpose justifying adoption of the 

legislation. Energy Reserves, 459 U.S. 

at 704-5, 74 L.Ed.2d at 580-81. Neel, 675 P.2d at 104-5, 41 

Several factors are used to evaluate the impairment of a 

contract. Total destruction of the contract is not necessary 

for a finding of substantial impairment. The severity of the 

impairment increases the level of scrutiny to which the 

legislation is subjected. However, state regulation that 

restricts a party to gains it reasonably expects from a 

contract does not substantially impair the contract. In 

d.etermining impairment, we are to consider the extent to 

which the industry has been regulated in the past. Energy 

Reserves, 459 U.S. at 411, 103 S.Ct. at 704, 74 L.Ed.2d at 

580. In analyzing these factors, the Workers' Compensation 

Court stated: 

Admittedly, workers' compensation is a closely 

regulated industry. However, the impairment to the 

claimant's contractual rights is severe. An 

increased level of scrutiny is required. A 

claimant, able to establish the required condition 

precedent, that it is in his best interests to be 

awarded a lump sum advance, is severely impacted by 

the discount provision and annuity provision in 

Senate Bill 281. This is a substantial restriction 

not anticipated under the parties ' [sic] contract. 

We agree that the dj-scounting provision as retroactively 

applied substantially impairs the rights of claimants which 

vested at the time of injury by altering the remedy to which 

the claimant is entitled. 

The second tier of the analysis is if the state in 

justification has a significant and legitimate public purpose 
behind the regulation. In this case, because the state is a 

party to this contract a heightened level of scrutiny 

attaches: 

The Contract Clause is not an absolute bar to 

subsequent modification of a State ' s own financial 

obligations. As with laws impairing the 

obligations of private contracts, an impairment may 

be constitutional if it is reasonable and necessary 

to serve an important public purpose. In applying 

this standard, however, complete deference to a 

legislative assessment of reasonableness and 

necessity is not appropriate because the State's 

self-interest is at stake. 

United States Trust Co. of New York v. New Jersey (1977), 431 

U.S. 1, 25-6, 97 S.Ct. 1505, 1519, 52 L.Ed.2d 92, 111-12. 

The defendants advance as the purpose for enactment of 5 

39-71-741, MCA, to "head off threatened premium increases, 

hold down employers' cost of doing business, and promote the 

Montana economy." We certainly agree with the legitimacy of 

these purposes and share the legislative concerns in 

promoting Montana's economy. However, those concerns in and 

of themselves are not sufficient to solve the issues before 

us in the present case. Clearly the discount provisions of 

the section may be applied to injuries occurring after the 

effective date of the Act. Such application will undoubtedly 

result in the type of savings desired by the legislature. 

However, our concerns must be directed to those who were 

injured prior to April, 1985, such as Rose Buckman. The 

record does not contain any significant evidence bearing on 

the cost to the state which may result if the discount 

provisions are not applied to workers injured prior to April, 

1985. Under those circumstances, we conclude that the state 

has failed to prove a significant public interest which 

requires the application of the discount to workers such as 

Buckman. The general statement of the reason in itself is 
not sufficient to justify the severity of the impairment of 

contract as in this case. We therefore hold that the 

retroactive application of 5 39-71-741, MCA, violates the 

contract clause of the 1972 Montana Constitution. We affirm 

the judgment of the Workers' Compensation Court on this 

issue. Because we have decided the statute is 

unconstitutional and a violation of the contract clause, we 

do not reach the due process or equal protection issues. 

Finally, Buckma.n contends that the trial court erred in 

denying her a conversion. In light of our construction of § 

39-71-741, MCA, we remand the case for determination of 

whether claimant is entitled to a conversion of her benefits 

to a lump sum. 

Affirmed in part, reversed in part and remanded for 

proceedings pursuant to this opinion 

We Concur: 

Justices 
Mr. Justice Frank B. Morrison, Jr. specially concurs as 

follows: 

I concur in the majority opinion although, in my 

judgment, the legislature intended to change the "best 

interest" test by enactment of 539-71-741, MCA. 

Nevertheless, I concur in the majority holding that the 

retroactive features of this legislation are 

unconstitutional. The statutes covering workers1 

compensation are a part of the employment contract. The 

statutes in effect at the time of injury control. Any 

attempt to change these rights after they vest constitutes an 

abridgment of contract obligations and is unconstitutional as 

the majority finds. 

The prospective application of 5 39-71-741, MCA, is 

affected by the Court's holding that the statute, reduced to 

its essence, involves no more than the "best interest" test. 

The Workers' Compensation Court has been proceeding under the 

assumption that the statute changed the former test and the 

legislative history indicates that was the intent of the 

legislature. As noted in the majority opinion the purpose 

advanced in support of the statute was to "head off 

threatened premium increases, hold down employers cost of 

doing business, and promote the Montana economy." To me this 

indicates that the legislature intended to change eligibility 

requirements for a lump sum settlement. 

The effect of the majority holding will finally realize 

what the legislature stated its goal to be but totally failed 

to accomplish. The result of the legislature enacting the 

subject statute has been to increase the cost of delivering 

benefits to the worker and has contributed to the financial 

crisis facing the state insurance fund. Prior to enactment 

of 39-71-741, MCA, and the bureaucratic regulations 
promulgated by the division, the worker simply had to show 

that it was in the best interest of the injured worker to 

receive a lump sum payment rather than a structured 

settlement. The workers petition, prepared without 

assistance of a lawyer, could easily satisfy this burden. 

The new statute is so complicated that an injured worker has 

to hire a "Philadelphia lawyer" in every case in which the 

worker desires to achieve a lump sum payment. Furthermore, 

the retained counsel must employ a battery of costly expert 

witnesses to satisfy the requirements of the statute. The 

result has been increased litigation, greatly increased 

litigation expenses, and delay in payment of benefits. This 

increasingly expensive system combined with low premiums 

charged by the State Fund has produced a very serious 

financial crisis for the State of Montana. 

From a monetary standpoint, it should make no difference 

to the State Compensation Insurance Fund whether payments are 

made in a lump sum or paid in a structured settlement. Lump 

sums are reduced to present value at an interest factor that 

renders the means of payment financially irrelevant to the 

fund itself. 

The workers' compensation system must be returned to a 

simple compensation system where injured workers can be 

compensated without litigation expenses. Litigation can 

never be eliminated entirely and where legitimate disputes 

need legal counsel they should go forward and be presented to 

the Workers1 Compensation Court. However, the "garden 

variety" workers ' compensation case should not be subjected 

to the complicated and tortured scheme set forth in 

5 39-71-741, MCA. 

In my opinion this statute should be repealed and a 

simple "best interest" test reestablished so that injured 
workers can be compensated without the necessity of costly 

litigation. Perhaps the holding of the majority neuters the 

statute and repeal is unnecessary. If that is the result of 

the majority opinion a giant step forward has been taken to 

preserve the future fiscal integrity of the State 
Mr. Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent. 

I woul-d affirm the Workers' Compensation Court ruling 

that the amendments found in 5 39-71-741 (2), MCA, are 

procedural in nature and could be applied in this case even 

though claimant's in-jury pre-dated the amendments. 

I would reverse the holding of the Workers' 

Compensation Court that the discounting provision in 

$ 39-71-741(1), MCA, if applied retroactively to Buckman's 

award, would violate the contract clauses of both the United 

States and Montana Constitutions. 

Those of us who feel that present Workers' Compensation 

benefits are inadequate may find the majority opinion to be 

an insurmountable obstacle in the event the legislature, in a 

better economic climate, should attempt to increase benefits 

for previously injured workers. The Nevada Supreme Court in 

K-Mart Corporation v. State Industrial Insurance System (Nev. 

1985), 693 P.2d 562, upheld an increase of benefits to 

workers injured prior to statute amendments and specifically 

ruled that such an amendment was not an unconstitutional 

impairment of a contract. The majority opinion effectively 

rules out the possibility of future relief for previously 

injured workers in Montana. 

The Constitutionality of Senate Bill 281 "is prima 

facie presumed, and every intendment in its favor will be 

made unless its unconstitutionality appears beyond a 

reasonable doubt. " T & Trjr Chevrolet v. Darvial (1982) , 196 

Mont. 287, 641 P.2d 1386, 1370. 

In my view, the laws relating to lump sum conversions 

are unrelated to the enforcement of the bargained for