No. 95-184 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, ex rel. CELIA COBBS, 

Relator and Appellant, 

NOV 2 1 ~~~$ 

v. 

MONTANA DEPARTMENT OF SOCIAL AND 

REHABILITATION SERVICES, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allan M. McGarvey, McGarvey, Heberling, 

Sullivan & McGarvey, Kalispell, Montana 

For Respondent: 

Cary B. Lund, Legal Counsel, Department of 

Public Health and Human Services, 

Helena, Montana 

Filed: 

Submitted on Briefs: August 24, 1995 

Decided: November 21, 1995 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The appellant, Celia Cobbs, filed an application in the 

District Court for the Nineteenth Judicial District in Lincoln 

County for a Writ of Mandate that would have directed the 

Department of Social and Rehabilitation Services (SRS) to disburse 

funds from the Industrial Accident Rehabilitation (IAR) Account for 

her rehabilitation expenses, as authorized by the Department of 

Labor. The District Court concluded that SRS had no clear duty to 

disburse the funds, and that Cobbs' exclusive remedy was provided 

by law. Therefore, the court denied her application. Cobbs 

appeals from the order and judgment of the District Court. We 

reverse. 

The issue on appeal is: 

Does the State Department of Social and Rehabilitation 

Services owe a clear legal duty to distribute funds from the 

Industrial Accident Rehabilitation Account when the Montana 

Department of Labor authorizes the distribution pursuant to 

5 39-71-2001, MCA (1993)? 

FACTUAL BACKGROUND 

Celia Cobbs is an injured worker entitled to workers' 

compensation benefits. She is unable to return to her former job 

because of a work-related injury. She had a dispute with her 

employer's insurer over her right to rehabilitation benefits and 

filed a petition in the Workers' Compensation Court to resolve that 

dispute. After a trial, she settled her claim by agreeing upon a 

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rehabilitation plan with her employer's insurer. The plan called 

for payment from the IAR Account in the amount of $680.75 for 

tuition and fees, together with $250.00 per semester for books and 

materials during a two-year course of study at Flathead Valley 

Community College. The State Department of Labor, Employment 

Relations Division, and the Workers' Compensation Court approved 

the plan. 

On January 13, 1994, the Department of Labor wrote to SRS and 

authorized the expenditure of funds from the IAR Account for the 

tuition, books, and materials described in the rehabilitation plan. 

The authorization specified that it was for expenditure of funds 

and that Cobbs was not seeking rehabilitation services. SRS, 

however, refused to disburse funds from the IAR Account based on 

its conclusion that Cobbs did not qualify for that Department's 

rehabilitation services. 

Cobbs then applied to the District Court in Lincoln County for 

a peremptory Writ of Mandate to compel the Department of Social and 

Rehabilitation Services to distribute funds pursuant to her 

rehabilitation plan. Cobbs contended in District Court that the 

IAR Account was established exclusively for workers' compensation 

claimants and that while the funds may be used to provide 

rehabilitation services through SRS pursuant to § 39-71-1003, MCA, 

the funds could also be used pursuant to 5 39-71-2001(l) (d), MCA 

(1993), when the Department of Labor authorizes use of the funds 

for expenses related to a private rehabilitation plan. 

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The District Court concluded that the IAR Account is 

statutorily dedicated to payment for rehabilitation services for 

injured workers provided by the State of Montana's vocational 

rehabilitation program, and that because Cobbs was not a client of 

that program she was prohibited from receiving funds from the 

Account. The District Court also held that 5 39-71-1003, MCA, 

provides that 5 53-7-106, MCA, is Cobbs' exclusive remedy for 

denial of SRS services. 

On appeal, Cobbs points out that she did not seek rehabilitation services or payments pursuant to 5 39-71-1003, MCA. She 

agrees that she does not qualify for those services, but contends 

that she is entitled to rehabilitation expenses which are related 

to her privately developed plan pursuant to 5 39-71-2001(l) (d), MCA 

(1993). 

DISCUSSION 

Does the State Department of Social and Rehabilitation 

Services owe a clear legal duty to distribute funds from the 

Industrial Accident Rehabilitation Account when the Montana 

Department of Labor authorizes the distribution pursuant to 

5 39-71-2001, MCA (1993)? 

The issuance or denial of a writ of mandate is a matter of 

legal interpretation which we will review to determine whether the 

district court's legal interpretation is correct. Phillips v. City of 

Livingston (1994), 268 Mont. 156, 161, 885 P.2d 528, 531. A two-part 

standard applies to the issuance of a writ of mandate. State ex rel. 

4 
Chisholmv. DistrictCourt (1986), 224 Mont. 441, 443, 731 P.2d 324, 325. 

The writ is available when the party who requests it is entitled to 

the performance of a clear legal duty by the party against whom the 

writ is sought, and where no speedy and adequate remedy in the 

ordinary course of law is available. Section 27-26-102, MCA; see 

Stateexrel. Gallowayv. CityofGreatFalls (1984)) 211 Mont. 354, 358, 684 P.2d 

495, 497. 

A negative answer to the first question bars the issuance 

of the writ, and, irrespective of the answer to that 

question, an affirmative answer to the second, divests 

the court of authority to issue it. 

Chisholm , 731 P.2d at 325. 

On appeal, Cobbs contends that the District Court's denial of 

her application was incorrect on both grounds. First, Cobbs 

contends that SRS has a clear legal duty to disburse the funds from 

the IAR Account. Second, Cobbs asserts that the SRS appeal process 

pursuant to § 53-7-106, MCA, is inapplicable because she did not 

seek SRS services. 

Cobbs contends that SRS has a clear legal duty to disburse 

funds pursuant to § 39-71-2001, MCA (1993), which authorizes 

privately developed rehabilitation plans, and therefore, that the 

District Court abused its discretion when it failed to find a clear 

legal duty on the part of SRS and denied the writ. SRS asserts 

that application for SRS services pursuant to § 39-71-1003, MCA, is 

the only route to the IAR funds, and therefore, that all recipients 

of IAR Account monies must independently be eligible clients of SRS 

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rehabilitation programs. We conclude that SRS's position, which 

was adopted by the District Court, is inconsistent with statutory 

law. 

The SRS is statutorily required to provide "vocational 

rehabilitation" and "vocational rehabilitation services" pursuant 

to the Federal Rehabilitation Act of 1973. 29 U.S.C. §§ 701-796. 

These services must be provided to anyone who qualifies pursuant to 

SRS criteria found at § 53-7-105, MCA. Vocational rehabilitation 

must also be provided by workers' compensation insurers to 

claimants who, by virtue of a work-related injury, are "physically 

unable to work at the job the worker held at the time of injury." 

Section 39-71-2001(l) (b), MCA (1993). This is a different standard 

than the standard by which eligibility for SRS services is 

determined. 

The IAR Account is provided for at 5 39-71-1004, MCA. It is 

funded by self-insured employers, Plan II insurers, and the 

Department of Labor. Its purpose is to pay rehabilitation expenses 

of injured workers. Subsection (4) specifically provides that 

"[n]o part of the funds . . . shall be used in payment of 

administrative expenses of the department or department of social 

and rehabilitation services." Section 39-71-1004(4), MCA (1993). 

When we construe a statute, "the office of the judge is simply to 

ascertain and declare what is in terms or in substance contained 

therein, not to insert what has been omitted or to omit what has 

been inserted." Section l-2-101, MCA. The Court is to effectuate 

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the intent of the Legislature, and if the Legislature's intent can 

be determined from the plain meaning of the words used in a 

statute, the courts may not go further and apply any other means of 

interpretation. Clarkev.Massey (Mont. 1995), 897 P.2d 1085, 1088, 52 

St. Rep. 538, 54 0 (citing Tongue River Elec. Co-op. Y. Montana Power Co. ( 19 8 1) , 

195 Mont. 511, 515, 636 P.2d 862, 864). 

Section 39-71-2001(l) (b), MCA (19931, provides that an injured 

worker who "is physically unable to work at the job the worker held 

at the time of the injury" is eligible for rehabilitation benefits. 

The Legislature enacted 5 39-71-2001, MCA, in 1991 when it amended 

the Workers' Compensation Act by passing HB 837 which, among other 

changes, enacted Title 39, Chapter 71, Part 20, "Rehabilitation 

Benefits." Section -2001(l) (d) of the newly enacted part further 

provides that: 

(1) An injured worker is eligible for rehabilitation 

benefits if: 

(d) a rehabilitation plan between the injured worker and 

the insurer is filed with the department [of Labor and 

Industry]. If the plan calls for the expenditure of funds 

under 39-71-1004 [the Industrial Accident Rehabilitation 

Account], the deuartment shall authorize the department of 

social and rehabilitation services to use the funds. 

Section 39-71-2001(l) cd), MCA (1993) (emphasis added). 

This statute explicitly provides for the development of a 

rehabilitation plan which may call for "the expenditure of funds" 

from the IAR Account. Section 39-71-2001(l) cd), MCA (1993), also 

specifically directs that the "department shall authorize" the use 

of the funds for the rehabilitation plan. 

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SRS's argument to the contrary assumes that only its agency 

can provide rehabilitation services to injured workers. However, 

the plain language of 5 39-71-1014, MCA, indicates that vocational 

services, including the development of a formal rehabilitation 

plan, may be delivered exclusively by a private rehabilitation 

provider. For example, that statute provides: 

(1) Rehabilitation services are required for disabled 

workers and may be initiated by: 

(a) an insurer by designating a rehabilitation 

provider and notifying the department; 

i2j . Rehabilitation . services provided under this 

part [of the Workers' Compensation Act] must be 

delivered: 

(a) throuqha rehabilitation counselor certifiedbv 

the board of rehabilitation certification; 

(b) bv a vocational rehabilitation counselor 

employed by-the department of social and rehabilitation 

services; or 

Cc) bv both. 

Section 39-71-1014, MCA (emphasis added). 

The plain language of 5 39-71-1014, MCA, allows workers' 

compensation claimants to receive vocational rehabilitation from 

certified private rehabilitation providers instead of, or in 

addition to, SRS services. Moreover, rehabilitation provider is 

defined as: 

[Al rehabilitation counselor certified bv the board for 

rehabilitation certification and desisnated bv the 

insurer to the deoartment or a department of social and 

rehabilitation services counselor when a worker has been 

certified by the department of social and rehabilitation 

services under 39-71-1003. 

Section 39-71-1011(5), MCA (1993) (emphasis added). 

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A "rehabilitation counselor certified by the board for 

rehabilitation certification" is not necessarily an SRS counselor, 

but may be a private counselor. See § 39-71-1011(l), MCA (defining 

board of rehabilitation certification). 

Thus, the plain language of 55 39-71-lOll(5) and -1014, MCA, 

establishes that an injured worker may receive vocational 

rehabilitation solely from a private provider, without using SRS 

counselors. Furthermore, there is no requirement that injured 

workers seek services from SRS--although vocational services may be 

provided to injured workers' compensation claimants by SRS. 

Therefore, §§ -1011(5), -1014, and -2001, when read together, 

require the conclusion that funds from the IAR Account are 

available for rehabilitation expenses when a "rehabilitation plan" 

has been developed by the insurer, claimant, and rehabilitation 

provider and filed with the Department of Labor, not just when SRS 

"services" are provided. Privately developed rehabilitation plans, 

as authorized by 5 39-71-2001, MCA (1993), would be rendered 

meaningless and impossible if this Court was to interpret 

5 39-71-2001, MCA (1993), in a way that gave SRS a right to deny 

benefits to workers based on criteria other than those listed in 

the Workers' Compensation Act. If approval was required, whether 

or not the insurer and the claimant agreed to a "rehabilitation 

plan," the expenses could not be paid unless the claimant also 

developed a rehabilitation plan as a client of SRS. The filing of 

the rehabilitation plan with the Department of Labor would be a 

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useless exercise if the worker was required to reapply for services 

as an SRS client and develop a new rehabilitation plan through 

SRS's rehabilitation "services." Moreover, the Department of 

Labor's "authorization" of the expenditure of funds from the IAR 

Account would have no meaning if, regardless of such authority, the 

claimant was still required to apply for rehabilitation services 

through SRS. Finally, the IAR Account would serve no function for 

workers' compensation employers, insurers, and claimants if it was 

solely utilized for clients of SRS. 

The Legislature does not perform useless acts. Kish v. Montana 

StatePrison (1973), 161 Mont. 297, 301, 505 P.2d 891, 893. Therefore, 

we conclude that § 39-71-2001, MCA (1993), does afford independent 

access to the IAR Account for payment of expenses related to a 

worker's rehabilitation plan developed by the insurer, claimant, 

and private rehabilitation provider and filed with the Department 

of Labor. This access is in addition to, and independent from, the 

payment of expenses pursuant to § 39-71-1003, MCA. Furthermore, 

the Department of Labor's authorization, pursuant to § 39-71-2001, 

MCA (1993), creates a clear legal duty on the part of SRS to 

disburse those funds. 

We conclude that Cobbs also meets the second requirement for 

a writ of mandate because no speedy and adequate remedy in the 

ordinary course of law was available to her. 

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