Clark v. Hensel Phelps Const. Co.
| Decision Date | 16 February 1977 |
| Docket Number | No. 13399,13399 |
| Citation | 560 P.2d 515,172 Mont. 8,34 St.Rep. 61 |
| Court | Montana Supreme Court |
| Parties | John CLARK, Claimant and Appellant, v. HENSEL PHELPS CONSTRUCTION CO., Employer and Aetna Casualty & Surety Co., Insurer and Respondent. |
Hoyt & Bottomly, John C. Hoyt (argued), Thomas L. Lewis, Great Falls, for claimant and appellant.
Jardine, Stephenson, Blewett & Weaver, James E. Aiken (argued), Great Falls, for insurer and respondent.
This appeal concerns, written notice to claimant and approval of the Division of Workers' Compensation prior to the termination of workers' compensation benefits to an injured workman.
Claimant John Clark was injured in an industrial accident on August 16, 1973. He was employed by Hensel Phelps Construction Co. insured under Plan II of the Workers' Compensation Act. Aetna Casualty & Surety Co., 'carrier', was the construction company's insurer. Clark was paid temporary total disability benefits from the date of the accident through October 2, 1973. The carrier stopped payment of benefits without notice to claimant or approval of the Division of Workers' Compensation. In June 1975, claimant requested a hearing before the Workers' Compensation Court. That court found claimant entitled to temporary total disability benefits from the date of the accident through October 2, 1973 and again from October 28, 1975 until further order of the court or until the claimant was able to return to work. No benefits were awarded for the period of October 3, 1973 through October 28, 1975, and it is from this omission claimant appeals.
The record reveals the injury suffered by claimant was an extremely painful and disabling back injury. Since the accident claimant has experienced recurring burning pains in his lower back and left leg. The injury has created a weakness in his left leg causing a limp which is becoming progressively more pronounced.
Immediately after the accident claimant was examined by Dr. Schroeder in Eureka, Montana. Dr. Schroeder diagnosed claimant's injury as a 'muscle spasm, left lumbar' and referred him to a specialist. Later Dr. Schroeder informed the carrier claimant could return to work on October 3, 1973. This opinion was used by the carrier as the basis for termination of workers' compensation benefits to claimant. The record is clear, claimant was unable to do any kind of physical labor for the period of question. From the date of the accident through October 1975, claimant was examined by at least eight different doctors for treatment for his injured back.
On October 28, 1975 claimant was examined for the first time by Dr. Richard A. Nelson. On that date Dr. Nelson determined claimant was disabled and unable to engage in his normal kind of work as a result of the existing back injury.
Apparently Dr. Nelson's report was used by the Workers' Compensation Court in fixing the date for the resumption of benefit payments to claimant. There was no reason given by the court for the failure to require the carrier to comply with the notice and approval provisions of the Workers' Compensation Act prior to the termination of compensation benefit payments.
At issue is the necessity of giving claimant written notice and acquiring approval of the Division of Workers' Compensation, prior to the termination of benefits.
The controlling section of the Workers' Compensation Act is section 92-615, R.C.M.1947, amended in 1974, but provided in 1973:
'* * * If the insurer determines to initially deny a claim, or after a claim has been accepted, terminates biweekly compensation benefits, it may do so only after fifteen (15) days written notice to the claimant and the division, and after written approval of the division.'
The effect of this statute upon a fact situation as in the instant case, is a matter of first impression. However, the statute clearly...
To continue reading
Request your trial
-
Mackin v. State
...unambiguous, direct and certain, the statute speaks for itself and there is nothing for a court to construe. Clark v. Hensel Phelps Const. Co. (1977), 172 Mont. 8, 560 P.2d 515; Security Bank and Trust Company v. Connors (1976), 170 Mont. 59, 550 P.2d The prosecution of a tort claim against......
-
Chagnon v. Tilleman Motor Co.
...an insurer's termination of benefits without the statutorily-required 14 days notice is ineffective. See Clark v. Hensel Phelps Constr. Co. (1977), 172 Mont. 8, 11, 560 P.2d 515, 517. In this case, Travelers did not terminate payments without notice, but carefully followed the requirements ......
-
State ex rel. Swart v. Casne
...and neither insert what has been omitted nor omit what has been inserted. Section 93-401-15, R.C.M.1947; Clark v. Hensel Phelps Construction Co., Mont., 560 P.2d 515, 34 St.Rep. 61; Hammill v. Young, Mont., 540 P.2d 971, 32 St.Rep. Defendants argue, however, that such construction of the pe......
-
Montana Ass'n of Underwriters v. State, By and Through Dept. of Administration, 13555
...and neither insert what has been omitted nor omit what has been inserted. Section 93-401-15, R.C.M.1947; Clark v. Hensel Phelps Construction Co., Mont., 560 P.2d 515, 34 St.Rep. 61; Hammill v. Young, Mont., 540 P.2d 971, 32 St.Rep. 935. Accordingly, we will not construe the language of sect......