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 : JUN 2 2 1977 

Filed: JUN 2 2 1m 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

In October 1971 claimant Camden Hendricks was injured in 

an industrial accident while employed in a mine of defendant 

The Anaconda Company (Anaconda). He submitted a claim for 

compensation. Anaconda accepted it and began paying temporary 

total disability benefits, and continued until claimant's death 

in November 1973. The parties here stipulated the cause of 

death was unrelated to the industrial injury. 

Claimant's widow requested a lump sum disability payment 

that was denied by Anaconda and subsequently, on appeal, by 

the Worker's Compensation Division. Claimant's widow appealed 

the decision to the district court, Silver Bow County. That 

court reversed the Division and awarded claimant's widow a lump 

sum of $6,000. 

Prior to his demise claimant had seen two physicians and 

each made 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 amount based on the 30% figure. Neither physician's 

report stated the period of healing had ended. 

The only additional testimony taken by the district court 

was that of Albert Pillen, an administrator of the Division's 

State Campensation Fund. No transcript of his testimony was 

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 is whether the widow has a right to a lump 

sum payment. 
In 2 Larson's Workmen's Compensation Law, $58.40, there is 

a general discussion, pertinent as background 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' benefits for loss of an arm dies at the end of 12 weeks. The 

question is whether his heirs have a claim upon 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 death benefits, 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, is paid weekly or.periodically, most 

jurisdictions in the absence of a special statute to 

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 lost wages 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 

to heirs indiscriminately, but of giving it in fixed 

proportions to dependent heirs, * * *I1 

The statute pertinent 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 the beneficiary of the deceased, as the case may be, shall 

receive the same compensation as though the death 

occurred immediately following the injury, but the 

period during which the death benefit shall be paid 

shall be reduced by the period during or for which 

compensation was paid for the injury. 

"(2) If the employee shall die from some cause , 

other than the injury, there shall be no liability 

for compensation after his death. 
"(3) The question as to who constitutes a 

beneficiary shall be determined as of the date of 

the happening of the accident to the employee, 

whether death shall immediately result therefrom 

or not .I1 

Subsection 2 of section 92-608 was discussed in Breen v. 

Ind. Ace. Board, 150 Mont. 463, 475, 436 P.2d 701, where the 

Court said : 

"As we construe this provision it simply 

means that if an employee is receiving 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 is cut off. But we do not construe this 

statute as terminating liability for compensation 

accrued prior to death but unpaid at the time of 

death.'' 150 Mont. 475. 

Claimant's widow argues claimant had an accrued right to 

a lump sum idemnity payment and that such right accrued when 

the physicians made their estimates of the percentage dfi impairment. The major difficulty with this argument is that a lump 

sum indemnity payment was not the only option available to 

claimant at the time of his death. As noted in McAlear v. McKee 

& Co., Mont . , 558 P.2d 1134,1136,1137, 33 St.Rep. 

'I* * * there are two distinct types of partial 

disability benefits which a claimant may seek 9~ * *. 

A claimant may elect a disability benefit under section 

92-703.1, R,C.M. 1947, or an indemnity benefit under 

section 92-709, R.C.M. 1947. 

"The distinction between 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 election prior to his death. If 

claimant had elected to receive disability benefits Breen states 
these would have ceased at death. 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 statutes which govern are section 92- 

701.1, R.C.M. 1947, which states: 

"I* * * Total temporary disability benefits 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 in this act that results in total loss of wages 

and exists until the injured workman is as far restored 

as the permanent character of the injuries will permit. I 

(Emphasis added.) 

Therefore, temporary total disability ceases when the 

workman's physical condition is as far restored as the 

permanent character of the injuries will permit. When 

the claimant has reached this stage in his healing 

process temporary total disability ceases, and partial 

disability begins if there is permanent 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 

to claimant'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 death benefits to dependents of claimants who die from causes unrelated to their industrial injury, as yet it has not done so. Instead it has prohibited 

payment of compensation after death from unrelated causes. Although 

it is unfortunate claimant had no accrued lump sum indemnity payment due him prior to his 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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