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: 

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# w-Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The insurance carrier appeals from a judgment inthe Workers' Compensation Court finding the claimant totally and permanently disabled and converting his futurebiweekly benefitsinto a lump sum payment. Appellant questions the sufficiency of the evidence presented to the court in support of a lump sum payment and questionswhether claimant 

### is entitled to attorney fees and costs. We affirm the judgment of the Workers' Compensation Court. The following issues arepresented to thisCourt 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 futurebenefits. 2. Whether claimant 

### is entitled to attorney fees and costs. ClaimantWilliam T. Polich, a longtime resident of Butte, was 62 years old in 1980when this action arose. Hehad worked most of his lifeatunskilled 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 benefitpayments since the date of his injury. InMarch of 1979, Polich underwent a surgical laminectomy to correct a herniated disc. Despite the surgery, he continued to experience pain inhis lower back, buttocks and legs. The orthopedic surgeon, who treated Polich, recommends thatPolich refrain from engaging inany occupationwhich would require overhead work, bending, stooping, crawling, driving or lifting

more than 

### 20 pounds.WilliamPolich owns his own house and car; he has certificates of deposit worth $13,000 and $3,000 ina savings account. He and hiswife have a combined income of $1,887 per month. Polich's wife works as a receptionist atthe Department of Radiology 

### atSt. James Hospital inButte. She has brittle diabetes, migraine headaches, and circulatory problems which make 

### it difficult for her to continueworking. 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 thathe 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 thatPolich 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 inPhoenix, where the Polichs plan to live, and because, due to the depressed economy inButte, claimant cannot expect toreceive more than around $22,000 from the sale of his home inButte. Claimant's efforts tonegotiate a lump sum settlementwith Glacier General had been unsuccessful. A hearing was held on October 20, 1980. Findings of factand conclusions of law subsequently entered determined, among other things, (1)that claimant 

### ispermanently and totally disabled; (2) that claimant is a prudent man, able tohandle his financial affairs; (3) that a lump sum settlement would be inclaimant's best interests; (4) that if the parties could not 

### settleupon the amount of the lump sum payment, the Workers' Compensation Court would do so 

### ata 

### later date; (5) that theWorkers' Compensation Court would

### alsodetermine ata laterdatewhether attorney feeswould be awarded and the amount of those fees. Appellant, Glacier General, has obtained a stay of the order of theWorkers' Compensation Court; claimantwill continue receiving biweekly benefitpayments pending the outcome of this appeal. Appellant has not contested theWorkers' Compensation Court's jurisdiction or its finding that claimant 

### ispermanently and totally disabled within the meaning of section 39-71- 116(13),MCA. 

### The firstissue, regarding the nature and sufficiency of the evidence presented in support of a conversion of futurebiweekly benefits to a lump sum payment, has been addressed by this Court inmany cases. Statutory authority for the conversion into a lump sum of biweekly payments provided for under the Workmen's Compensation Act is found insection 92-715 R.C.M., 

### 1947,

now section 39-71-741, MCA. 

### In 1979, section 39-71-741, MCA, 

### was amended togive theWorkers' Compensation Court the authority to 

### settledisputes concerning lump 

### sum settlements where an insurer and a claimant disagreed. Willoughby v. Mont.- Arthur G. 

### McKee & 

### Co. (1980),

# - , 609 P.2d 700,

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

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### 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 

### thatpayments under the Workmen's Compensation Act areperiodic. Lump sum settlements are an exception to the general rule. [Citationsomitted.] 

### This does notmean, 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), 135Jlont. 469, 474, 342 P.2d 752, 755.1 Each case for a lump sum payment stands or fallson 

### its own merits. Codling v. Aztec Well 

### Servicing Co. (1976), 89 N.M. 

### 213, 549 P.2d 628."

### Inother cases where thisCourt 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 interferedwith on appeal unless there has been an apparent abuse of discretion. Utick v. Utick, supra; Kent

v. Sievert (1971), 158Mont. 79, 489 P.2d 104. The findings of the lower tribunal or board 

### willbe presumed correct and affirmed if supported by substantial evidence. Willoughby, supra, 609 P.2d at702, 37 St.Rep. at623, and cases there cited. The Workers' Compensation Court or board 

### is "more favorably situated than [thisCourt] to familiarize itself with the circumstances surrounding the applicant, to consider his needs, and the results which probably 

### willfollow action granting or denying the application. 

# . ." Willouqhby, supra, 609 P.2d at704, 37 St.Rep. at625, (citationomitted). Appellant maintains that the evidence before the Workers' Compensation Court was too scanty to support 

### its conclusion that a lump 

### sum settlement

### willbest serve the claimant's interests. Appellant claims a contradiction exists inthe court's finding that claimantwants tomove to a warm climate although claimant has not really checked out the cost of living inPhoenix other than to find that 

### itwould costmore than living inButte, so that the move might actually be detrimental to claimant and his wife. Wedo note thatmore 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 

### ispainful to him. Hiswife 

### is ill with diabetes, migraine headaches and impaired circulation. The claimant has indicated that he and his wife keep mostly tothemselves; they have few close friends leftin the area. While littleevidence was submitted incomparing Butte and Phoenix winter living conditions, the facts are sufficientto show that lifeaway 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 [theperiodic payment] method 

### is topreclude any possibility of an imprudent employee or dependent wasting themeans for support and thereby becoming

a burden upon society. [Citationomitted,

### 1

### " Laukaitis, supra, 135Mont. at472, 342 P.2d at754. But theWorkers' Compensation Court has found "thatthe claimant 

### is a prudent man, able to handle his financial affairs. 

# .

# ." The record indicates thatPolich 

### is solvent, and that hiswife 

### 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

### isprecisely this type of human need and financial burden that section 39-71-741, MCA 

### isdesigned to cover. Without a lump sum payment of benefits, claimant and his wife 

### willbe unable tomake a move that 

### is clearly intheir best interests considering their age and deteriorated health. In all likelihood, once settled inPhoenix the Polichs 

### willcontinue to live, as they have inButte, quietly and within theirmeans. 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 

### isno abuse of discretion in

### itsjudgment that, in accordance with section 39-71-741, 

### MCA, Polich 

### isentitled to a conversion of his future biweekly benefit paymentsinto a lump 

### sum payment. The second issue raised 

### iswhether the claimant 

### is entitled to attorney fees and costs. Appellant contends

a that, since 

### it has atall

### timesbeen complying with the

Workers' Compensation Act, claimant 

### isnot entitled to

recover attorney fees and costs. Compliance or noncompliance with the Workers' Compensation Act 

### isnot relevant to this issue. The award of attorney fees and costs inthis case 

### isgoverned 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 

### isgreater than the amount paid or tendered by the employer or insurer, a reasonable attorney's fee asestablished by the division or theworkers' compensation judge if the case has gone to a hearing based solelyupon the differencebetween the amount settled for or awarded and the amount tendered or paid, may be awarded inaddition to the amount for compensation. (2) When an attorney's fee 

### is awarded againstan employer or insurer under this section theremay 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 feesmust 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 toreasonable attorney fees and costswithin 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, asit 

### is the function of this Court toreview 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 towhich claimant is entitled.

We

### Concur:

Chief Justice

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