No. 13320 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

CAMDEN J. HENDRICKS, Deceased, Claimant and Respondent,

-vsTHE ANACONDA COMPANY, Defendant and Appellant.

Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Joseph J. Picarelli argued, Butte, Montana For Respondent: Jack M. Scanlon argued, Anaconda, Montana

Submitted: May 11, 1977 Decided: 

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## 1977
Filed: 

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### Mr. Justice John Conway Harrison delivered the Opinion of the Court.

InOctober 1971claimant Camden Hendrickswas injured in

an industrial accidentwhile employed in a mine of defendant TheAnaconda Company (Anaconda). He submitted a claim for compensation. Anaconda accepted it and began paying temporary total disabilitybenefits, and continued until claimant's death inNovember 1973. The parties here stipulated the cause of deathwas unrelated to the industrial injury. Claimant's widow requested a lump sumdisability payment thatwas denied by Anaconda and subsequently,on appeal,by the Worker's CompensationDivision. Claimant's widow appealed the decision to the district court, Silver Bow County. That court reversed the Divisionand awarded claimant's widow a lump

sum of $6,000. Prior to his demise claimanthad seen two physicians and eachmade an estimate of the percentage of disability. The first physician estimated disability at 20%, the second, some months later, set the figure at 30%. The district court's award represents an amountbased on the 30% figure. Neither physician's report stated theperiod of healing had ended. The only additional testimony takenby the district court

was that ofAlbert Pillen,an administrator of the Division's State Campensation Fund. No transcript of his testimonywas filed as a part of this appeal record, but the briefs indicate the testimony explained how the state fund handles such claims. The question here iswhether thewidow has a right to a lump

sumpayment.In 2Larson's Workmen's Compensation Law, $58.40, there 

### is a general discussion, pertinent asbackground for our discussion of the issue involved here, it states: "558.40 Heritability and assignability of benefits, "In the opening portion of the book it was pointed out that one of the features distinguishing a compensation award from a tort recovery 

### is the absence of any property right in an award which can survive in favor of heirs. The problem most frequently arises in connection with schedule or other permanent partial awards, when an employee who has been awarded, say, 312 weeks' benefitsfor loss of an arm dies atthe end of 

### 12weeks. The question 

### iswhether hisheirs have a claimupon the unaccrued 300 weeks' payments. "Accrued but unpaid installments are, of course, an asset of the estate, like any other debt. This 

### is equally true of the widow's deathbenefits, accrued but unpaid installments of which go on her death to her heirs. When the award takes the form of a lump sum, the amount due as accrued payments 

### is the entire amount of the lump sum. "When, however, the award, although for a fixed number of weeks, ispaid weekly or.periodically, most jurisdictions in the absence of a special statuteto the contrary have held that the heirs have no claim upon the unaccrued payments, since the award 

### is a personal one, based upon the employee's need for a substitute for his lostwages and earning capacity. There 

### is, however, some contra authority. "This rule has been modified by statute in some states, but it 

### is significant that the modification often takes the form, not of giving the unaccrued balance toheirs indiscriminately, but of giving it in fixed proportions to dependent heirs,

# ** *I1 The statutepertinent here is section 92-608, R.C.M. 1947: "(1) If an injured employee dies and the injury was the proximate cause of such death, then thebeneficiary of the deceased, asthe case may be, shall receive the same compensation as though the death occurred immediately following the injury, but the period during which the deathbenefit shallbe paid shallbe reduced by the period during or forwhich compensationwas paid for the injury. "(2) If the employee shalldie from some cause , other than the injury, there shallbe no liability for compensation after his death."(3) The question as towho constitutes a beneficiary shallbe determined as of the date of the happening of the accident to the employee, whether death shall immediately result therefrom ornot.I1 Subsection 

### 2 of section 92-608 was discussed inBreen v. Ind. Ace. Board, 150Mont. 463, 475, 436 P.2d 701, where the Court said: 

### "As we construe thisprovision it simply means that if an employee 

### isreceiving compensation as the result of an indistrial injury and subsequently dies from causes other than this injury, liability for further compensation by way of death benefits or continuing disability benefits iscut off. But we do not construe this statute as terminating liability for compensation accrued prior to death but unpaid atthe time of death.'' 150Mont. 475. Claimant's widow argues claimant had an accrued right to



### a lump sum idemnity payment and that such right accrued when thephysicians made their estimates of the percentage

### dfi impairment. The major difficultywith this argument 

### is that a lump

sum indemnity payment was not the only option available to claimant atthe time of his death. Asnoted inMcAlear v. McKee & Co., Mont

# . ,558 P.2d 1134,1136,1137, 33 St.Rep.

'I* 

# ** there are two distinct types of partial disabilitybenefits which a claimant may seek 9~

# *

# *. A claimant may elect a disabilitybenefit under section 92-703.1, R,C.M. 1947, or an indemnity benefit under section 92-709, R.C.M. 1947. "The distinctionbetween these two benefits 

### is that section 92-703.1 bases the benefit upon actual loss of earning capacity resulting from the injury, whereas section 92-709 awards compensation regardless of earnings to compensate for possible loss of earning capacity in the future. Jones v. Glac. General Assurance Co., 145 Mont, 326, 400 P.2d 888." 33 St.Rep. 1341; 558 P.2d 1137. Here claimant made no electionprior tohis death. If claimant had elected to receive disabilitybenefits Breen statesthesewould have ceased atdeath. To say claimant had accrued rights in a lump sum indemnity benefit requires that options which the deceased claimant could have exercised be made for him and given retroactive effect. 1A second difficulty 

### is that prior to claimant's death there was never a determination made that the healing period had ended. McAlear points out: 

## "*

# * * The statuteswhich govern are section 92- 701.1, R.C.M. 1947, which states:

"I* 

# ** Total temporary disabilitybenefits shall be paid for the duration of the worker's temporary disability.

## ' and section 92-439, R.C.M. 1947, which defines temporary total disability as:

I"* 

# *

# * a condition resulting from an injury as defined inthis act that results intotal loss of wages and existsuntilthe injuredworkman 

### is as far restored as the permanent character of the injurieswillpermit. I (Emphasis added.) Therefore, temporary total disability ceaseswhen the workman's physical condition is as far restored asthe permanent character of the injuries

### willpermit. When the claimant has reached this stage inhis healing process temporary total disability ceases, and partial disabilitybegins if there 

### ispermanent partial impairment." 33 St. Rep. 1340; 

### 558 P.2d 1136. No indemnity payment may accrue until the healing period 

### is completed. Blessed with hindsight, it is easy to see the benefit toclaimant's estate that would result from having claimant fully healed and having made an election to go under the indemnity provisions. The legislature could grant deathbenefits to dependents of claimants who die from causes unrelated to their industrialinjury, as yet it has not done so. Instead it has prohibited payment of compensation after death from unrelated causes. Although it 

### isunfortunate claimant had no accrued lump sum indemnity payment due him prior tohis death, the fact remains he did not.

### Since no compensation accrued to the claimant remains unpaid, the district court erred in granting a 

### lump sum award to claimant's widow. The cause is reversed with direction to dismiss.

We Concur: 

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