No. 81-153 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

WILLIAM T. POLICH, 

Claimant and Respondent, 

-vsWHALEN'S 0.K. TIRE WAREHOUSE, 

Employer, 

and 

GLACIER GENERAL ASSURANCE CO., 

Defendant and Appellant. 

Appeal from: The Workers' Compensation Court, The Honorable 

William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant : 

Garlington, Lohn & Robinson, Missoula, Montana 

For Respondent: 

Dowling Law Firm, Helena, Montana 

Submitted on Briefs: June 17, 1981 

Decided: SEP 2 5 1981 

Filed: SEP 2 5 w- 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The insurance carrier appeals from a judgment in the 

Workers' Compensation Court finding the claimant totally and 

permanently disabled and converting his future biweekly benefits into a lump sum payment. Appellant questions the sufficiency of the evidence presented to the court in support of a 

lump sum payment and questions whether claimant is entitled to 

attorney fees and costs. We affirm the judgment of the Workers' 

Compensation Court. 

The following issues are presented to this Court for 

review: 

1. Whether there was sufficient evidence to support the 

Workers' Compensation Court's holding that claimant was entitled to a lump sum payment of future benefits. 

2. Whether claimant is entitled to attorney fees and costs. 

Claimant William T. Polich, a longtime resident of Butte, 

was 62 years old in 1980 when this action arose. He had worked 

most of his life at unskilled and physically demanding jobs. 

On January 29, 1979, while employed by Whalen's O.K. Tire 

Warehouse, Polich suffered a back injury which was accepted as 

compensable by Glacier General Assurance Company. Polich has 

been receiving biweekly benefit payments since the date of his 

injury. 

In March of 1979, Polich underwent a surgical laminectomy 

to correct a herniated disc. Despite the surgery, he continued 

to experience pain in his lower back, buttocks and legs. The 

orthopedic surgeon, who treated Polich, recommends that Polich 

refrain from engaging in any occupation which would require 

overhead work, bending, stooping, crawling, driving or lifting 

more than 20 pounds. 
William Polich owns his own house and car; he has 

certificates of deposit worth $13,000 and $3,000 in a savings 

account. He and his wife have a combined income of $1,887 

per month. Polich's wife works as a receptionist at the 

Department of Radiology at St. James Hospital in Butte. She 

has brittle diabetes, migraine headaches, and circulatory 

problems which make it difficult for her to continue working. 

She was 62 years old in 1980, is eligible for retirement 

benefits and desires to retire. 

On July 7, 1980, claimant petitioned the Workers' 

Compensation Court to grant him a lump sum settlement so 

that he and his wife could sell their home and move south to 

a more hospitable climate, relieving themselves of the 

stress and discomfort caused them by Montana's more severe 

winters. The petition alleged that Polich experienced pain 

when he attempted "even the slightest exertion." Claimant requests the lump sum payment for his projected move because 

the cost of living is considerably higher in Phoenix, where 

the Polichs plan to live, and because, due to the depressed 

economy in Butte, claimant cannot expect to receive more 

than around $22,000 from the sale of his home in Butte. 

Claimant's efforts to negotiate a lump sum settlement with 

Glacier General had been unsuccessful. 

A hearing was held on October 20, 1980. Findings of 

fact and conclusions of law subsequently entered determined, 

among other things, (1) that claimant is permanently and 

totally disabled; (2) that claimant is a prudent man, able 

to handle his financial affairs; (3) that a lump sum settlement 

would be in claimant's best interests; (4) that if the 

parties could not settle upon the amount of the lump sum 

payment, the Workers' Compensation Court would do so at a 

later date; (5) that the Workers' Compensation Court would 
also determine at a later date whether attorney fees would 

be awarded and the amount of those fees. 

Appellant, Glacier General, has obtained a stay of the 

order of the Workers' Compensation Court; claimant will 

continue receiving biweekly benefit payments pending the 

outcome of this appeal. 

Appellant has not contested the Workers' Compensation 

Court's jurisdiction or its finding that claimant is permanently 

and totally disabled within the meaning of section 39-71- 

116 (13), MCA. 

The first issue, regarding the nature and sufficiency 

of the evidence presented in support of a conversion of 

future biweekly benefits to a lump sum payment, has been 

addressed by this Court in many cases. 

Statutory authority for the conversion into a lump sum 

of biweekly payments provided for under the Workmen's 

Compensation Act is found in section 92-715 R.C.M., 1947, 

now section 39-71-741, MCA. In 1979, section 39-71-741, 

MCA, was amended to give the Workers' Compensation Court the 

authority to settle disputes concerning lump sum settlements 

where an insurer and a claimant disagreed. Willoughby v. 

Arthur G. McKee & Co. (1980), - Mont.- , 609 P.2d 700, 

In a recent case, Utick v. Utick (1979), - Mont. - I 

593 P.2d 739, 741, 36 St.Rep. 799, 801-802, this Court 

discussed the broad principles governing lump sum payments: 

"The general rule is that payments under the 

Workmen's Compensation Act are periodic. Lump 

sum settlements are an exception to the general 

rule. [Citations omitted. ] This does not mean, 

however, that lump sum awards are looked on 

with disfavor. They should be awarded without 

hesitancy 'where the best interests of the parties 

demand it.' [Laukaitis v. Sisters of Charity of 

Leavenworth (1959), 135 Jlont. 469, 474, 342 P.2d 

752, 755.1 Each case for a lump sum payment stands 

or falls on its own merits. Codling v. Aztec Well 

Servicing Co. (1976), 89 N.M. 213, 549 P.2d 628." 
In other cases where this Court has considered the 

Workers' Compensation Court's decision to award or deny a 

lump sum settlement, we have stated that that decision will 

not be interfered with on appeal unless there has been an 

apparent abuse of discretion. Utick v. Utick, supra; Kent 

v. Sievert (1971), 158 Mont. 79, 489 P.2d 104. The findings 

of the lower tribunal or board will be presumed correct and 

affirmed if supported by substantial evidence. Willoughby, 

supra, 609 P.2d at 702, 37 St.Rep. at 623, and cases there cited. 

The Workers' Compensation Court or board is "more 

favorably situated than [this Court] to familiarize itself 

with the circumstances surrounding the applicant, to consider 

his needs, and the results which probably will follow action 

granting or denying the application. . ." Willouqhby, supra, 

609 P.2d at 704, 37 St.Rep. at 625, (citation omitted). 

Appellant maintains that the evidence before the Workers' 

Compensation Court was too scanty to support its conclusion 

that a lump sum settlement will best serve the claimant's 

interests. Appellant claims a contradiction exists in the 

court's finding that claimant wants to move to a warm climate 

although claimant has not really checked out the cost of living 

in Phoenix other than to find that it would cost more than living 

in Butte, so that the move might actually be detrimental to 

claimant and his wife. We do note that more detailed facts 

regarding the anticipated costs and expenses should have been 

presented by claimant. The evidence did show that claimant 

has been warned by his physician to avoid stooping, bending, 

crawling, heavy lifting and overhead work; the slightest 

physical exertion is painful to him. His wife is ill with 

diabetes, migraine headaches and impaired circulation. The 

claimant has indicated that he and his wife keep mostly to 
themselves; they have few close friends left in the area. 

While little evidence was submitted in comparing Butte and 

Phoenix winter living conditions, the facts are sufficient to 

show that life away from below zero weather, heavy snowfall 

and rutted icy roads and streets would be in the best interests 

of this ill and aging couple. 

This Court has stated that the interests of society are 

usually best served by having disability payments made 

periodically. "The purpose of [the periodic payment] method 

is to preclude any possibility of an imprudent employee or 

dependent wasting the means for support and thereby becoming 

a burden upon society. [Citation omitted, 1 " Laukaitis, supra, 

135 Mont. at 472, 342 P.2d at 754. But the Workers' Compensation 

Court has found "that the claimant is a prudent man, able to 

handle his financial affairs. . ." The record indicates 

that Polich is solvent, and that his wife is eligible for 

retirement benefits. It is only the anticipated expense of 

the move to Phoenix that gives rise to his request for a 

lump sum payment. It is precisely this type of human need 

and financial burden that section 39-71-741, MCA is designed 

to cover. Without a lump sum payment of benefits, claimant 

and his wife will be unable to make a move that is clearly 

in their best interests considering their age and deteriorated 

health. In all likelihood, once settled in Phoenix the 

Polichs will continue to live, as they have in Butte, quietly 

and within their means. 

We find there is substantial evidence upon which the 

Workers' Compensation Court could base its conclusion that a 

lump sum settlement is in the best interests of the claimant. 

There is no abuse of discretion in its judgment that, in 

accordance with section 39-71-741, MCA, Polich is entitled 

to a conversion of his future biweekly benefit payments 
into a lump sum payment. 

The second issue raised is whether the claimant is 

entitled to attorney fees and costs. Appellant contends 

a that, since it has at all times been complying with the 

Workers' Compensation Act, claimant is not entitled to 

recover attorney fees and costs. 

Compliance or noncompliance with the Workers' Compensation 

Act is not relevant to this issue. The award of attorney 

fees and costs in this case is governed by section 39-71- 

612, MCA, which states: 

"(1) If an employer or insurer pays or tenders 

payment of compensation under chapter 71 or 72 

of this title, but controversy relates to the 

amount of compensation due and the settlement or 

award is greater than the amount paid or tendered 

by the employer or insurer, a reasonable attorney's 

fee as established by the division or the workers' 

compensation judge if the case has gone to a hearing based solely upon the difference between the 

amount settled for or awarded and the amount tendered 

or paid, may be awarded in addition to the amount for 

compensation. (2) When an attorney's fee is awarded 

against an employer or insurer under this section 

there may be further assessed against the employer 

or insurer reasonable costs, fees, and mileage for 

necessary witnesses attending a hearing on the 

claimant's behalf. Both the necessity for the witness and the reasonableness of the fees must be 

approved by the division or the workers' compensation judge. " 

The claimant has prevailed in a hearing where the sole 

controversy was the difference between the amount awarded 

and the amount tendered. This meets the statutory standard. 

This Court finds that the claimant is entitled to reasonable 

attorney fees and costs within the meaning of section 39-71- 

612, MCA. 

We affirm the judgment of the Workers' Compensation 

Court. It is the function of the lower court to determine 

the amount of awards and fees, as it is the function of this 

Court to review the decisions of the lower courts. Therefore, we remand this case to the Workers' Compensation Court 
for a determination of the amount of the lump sum payment 

and attorney fees and costs to which claimant is entitled. 

We Concur: 

Chief Justice 

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Justices