No. 93-044

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

SHEILA STORDALEN,

Petitioner and Appellant,

v.

RICCI'S FOOD FARM,

Employer,

and

STATE COMPENSATION MUTUAL INSURANCE FUND,

Defendant and Respondent.

APPEAL FROM: Montana Workers' Compensation Court

The Honorable Timothy W. Reardon, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Don Edgar Burris, Attorney at Law,

Billings, Montana

For Respondent:

Michael P. Heringer, Brown, Gerbase, Cebull,

Fulton, Harman & Ross, Billings, Montana

Filed:

Submitted on Briefs: April 30, 1993

Decided: October 26, 1993

I:_ ~’ Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.

This is an appeal from a decision of the Workers' Compensation

Court denying appellant Sheila Stordalen a penalty pursuant to

§ 39-71-2907, MCA, and denying her attorney fees pursuant to

§ 39-71-612, MCA, after the Workers ' Compensation Court found that

respondent State Compensation Mutual Insurance Fund acted

unreasonably when it denied liability for a neurological

consultation.

We reverse and remand to the Workers' Compensation Court.

Stordalen initially raised four issues on appeal. However, we

determine the following issue to be dispositive:

Did the Workers' Compensation Court err when it failed to

impose a 20 percent penalty pursuant to 5 39-71-2907, MCA, and

attorney fees pursuant to 5 39-71-612, MCA, after it found that the

State Fund acted unreasonably in denying liability for a

neurological consultation?

A hearing was held in this matter on May 13, 1992. On

December 28, 1992, the hearing examiner issued proposed findings of

fact, conclusions of law, and order which were adopted by the

Workers' Compensation Court. Stordalen appeals the findings of the

Workers' Compensation Court.

Did the Workers' Compensation Court err when it failed to

impose a 20 percent penalty pursuant to § 39-71-2907, MCA, and

attorney fees pursuant to 5 39-71-612, MCA, after it found that the

State Fund acted unreasonably in denying liability for a

neurological consultation?

2
Our standard of review is that findings of the Workers'

Compensation Court will not be overturned if there is substantial

evidence in the record to support them. Plooster v. Pierce Packing

Co. (1993), 256 Mont. 287, 291, 846 P.2d 976, 978. However, when

reviewing the Workers' Compensation Court's conclusions of law, our

review is plenary. We determine if the Workers' Compensation

Court's determination as to the law is correct. Martelli v.

Anaconda-Deer Lodge County (Mont. 1993), 852 P.2d 579, 580, 50 St.

Rep. 479, 480.

Section 39-71-2907(l), MCA (1989), provides for an increase in

award when the State Fund acts unreasonably by refusing to pay

benefits.

When payment of compensation has been unreasonably

delayed or refused by an insurer, either prior or

subsequent to the issuance of an order by the workers'

compensation judge granting a claimant compensation

benefits, the full amount of the compensation benefits

due a claimant between the time compensation benefits

were delayed or refused and the date of the order

granting a claimant compensation benefits may b e

increased by the workers' compensation judge by 20%. The

question of unreasonable delay or refusal shall be

determined by the workers' compensation judge, and such

a finding constitutes good cause to rescind, alter, or

amend any order, decision, or award previously made in

the cause for the purpose of making the increase provided

herein.

Section 39-71-612, MCA, allows the Workers' Compensation Court

to award attorney fees if it finds that the State Fund acted

unreasonably. A determination of what is unreasonable is a

question of fact. Metzger v. Chemetron Corp. (1984), 212 Mont.

351, 358, 687 P.2d 1033, 1037.

3
We have held that when an insurer acts unreasonably by denying

benefits to which a claimant is legally entitled, the court should

impose the statutory penalty. Ploostar, 846 P.2d at 978. In

Plooster, the Workers' Compensation Court found that the State Fund

acted unreasonably when it ignored the opinion of claimant's

treating physician and refused to pay for medicine which the doctor

had prescribed. Plooster, 846 P.2d at 978. However, after making

that determination, the Workers' Compensation Court denied

claimant's entitlement to a statutory penalty. Plooster, 846 P.2d

at 978. We reversed the Workers' Compensation Court and stated

that the claimant was entitled to a penalty. Plooster, 846 P.2d at

978.

In Chapman v. Research Cottrell (lPPl), 811 P.2d 1283, 1285,

248 Mont. 353, 357, this Court held that when an insurer denies a

claimant's request to change treating physicians, the decision must

be reasonable. Here, the request is not for a change of treating

physicians, but to seek consultation of a medical expert. A

claimant must obtain authorization from the State Fund for a

referral to a medical expert for consultation. 24.29.1403(3), ARM

(repealed eff. 4/l/93).

In this instance, the State Fund denied Stordalen's request

for a consultation with Dr. Nelson for the following reasons: (1)

a neurologist was not indicated on the file; (2) the claimant lives

in Livingston, while Dr. Nelson's practice is in Billings: and (3)

billing factors. The Workers' Compensation Court found that none

of the above-stated reasons justified denying Stordalen's request

4
to be examined by a physician of her choice. The court concluded

that the State Fund unreasonably denied Stordalen's request for

consultation with a physician of her choice and found the State

Fund liable for her neurological examination. The Workers'

Compensation Court determined that Stordalen was not entitled to a

penalty pursuant to § 39-71-2907, MCA. The State Fund did not

appeal this ruling.

We hold that the Workers' Compensation Court should impose the

penalty and attorney fees because it found that the State Fund

acted unreasonably in denying Stordalen's request for a consultive

examination.

We reverse and remand to the Workers' Compensation Court for

a determination of penalty and attorney fees.

We concur:
October 26, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Don Edgar Bunk

Attorney at Law

P.O. Box 2344

Billings, MT 59103

Michael P. Heringer

Brown, Gerbase, Cebull, Fulton, Harman & Ross

P.O. Box 849

Billings, MT 59103-0849

ED SMITH

CLERK OF THE! SUPREME COURT

STATE OF,MONTANA