Lamb v. Missoula Imports, Inc.

• Decision Date: 19 January 1988
• Docket Number: No. 87-207,87-207
• Citation: 230 Mont. 183,748 P.2d 965,45 St.Rep. 127
• Parties: Russell A. LAMB, Claimant and Appellant, v. MISSOULA IMPORTS, INC., Employer, and Universal Insurance Co., Defendant and Respondent.
• Court: Montana Supreme Court

Page 965

748 P.2d 965

230 Mont. 183

Russell A. LAMB, Claimant and Appellant, v. MISSOULA IMPORTS, INC., Employer, and Universal Insurance

Co., Defendant and Respondent.

No. 87-207.

Supreme Court of Montana.

Submitted on Briefs Nov. 13, 1987.

Decided Jan. 19, 1988.

Williams Law Firm, Shelton C. Williams, Missoula, for claimant and appellant.

Garlington, Lohn & Robinson, Robert E. Sheridan, Jr., Missoula, for defendant and respondent.

HUNT, Justice.

Claimant appeals from the judgment of the Workers' Compensation Court which denied him an award of attorney's fees after adjudging that he was entitled to permanent partial disability benefits. Because of a lack of the introduction of relevant wage figures, the judge was unable to determine the exact amount claimant should receive for permanent partial disability benefits. Claimant appeals on the issue of attorney's fees. We reverse and remand.

The specific issues raised for our review are as follows:

1. Whether claimant is entitled to attorney's fees pursuant to a prior ruling on the same case which awarded fees under Sec. 39-71-611, MCA.

2. Whether claimant is entitled to attorney's fees under Sec. 39-71-612, MCA, after going to a hearing which resulted in an increase in benefits.

In 1978, Russell Lamb worked for Missoula Imports as a janitor. On September 11, 1978, he slipped and fell, hitting his head on the cement floor. He was diagnosed as having sustained a concussion. In February, 1979, Lamb was further diagnosed as suffering from epilepsy. Even with medication, Lamb had occasional seizures.

On March 9, 1982, while driving down a busy street, Lamb had a seizure. He drove off the road, and hit his car head on with a tree, causing serious head injuries and permanent brain damage. This Court in Lamb v. Missoula Imports, Inc. (Mont.1984), 684 P.2d 498, 41 St.Rep. 1414, (Hereinafter Lamb I ), affirmed the Workers' Compensation Court in holding that Lamb's epileptic seizures were a direct cause of his 1978 slip and fall injury while working for Missoula Imports. Lamb was awarded temporary total disability benefits, retroactive to the date of the auto accident. In Lamb I, claimant received attorney's fees pursuant to Sec. 39-71-611, MCA.

In January, 1987, Lamb again went to hearing to determine whether he was entitled to increased permanent partial disability benefits and domiciliary care payments Defendant denied liability for domiciliary care payments, and disputed the proper amount of permanent partial disability benefits.

The Workers' Compensation Court found that Lamb was entitled to receive payment for both domiciliary care as well as permanent partial disability benefits. However, claimant failed to introduce evidence of what the pay would be at the time of the hearing for someone working as a janitor in the same capacity as Lamb was at the time of his injury in 1978. Consequently, the court was unable to determine the correct amount which Lamb should receive for permanent partial disability benefits, but did provide a general formula from which to calculate the correct amount. In its order, the court encouraged the parties to resolve their dispute using the guidance the judge provided. The Workers' Compensation Court summarized the issue of a benefits increase in the form of permanent partial disability benefits by stating: "There is no question of whether claimant is disabled, the only question is how much to pay."

In the Lamb II judgment (the present case), the Workers' Compensation Court awarded attorney's fees to claimant on all issues brought upon which he prevailed. Immediately following the entry of the court's order, the parties agreed on an increase of benefits from $52.38 per week to $94.00 per week. In a memorandum subsequent to the Lamb II judgment, the court clarified the award of attorney's fees. The judge ordered defendant to pay as attorney's fees, 25 percent of claimant's future benefits for domiciliary care and a lump sum of 25 percent of those benefits already received. As to the fees pertaining to the issues of permanent partial disability benefits, the court denied Lamb's claim on the grounds that he did not meet his burden of proof regarding the applicable rate.

We will first address the issue of whether claimant is entitled to fees pursuant to Sec. 39-71-611, MCA, or pursuant to the ruling and award of fees in Lamb I.

Claimant was forced to hire an attorney and litigate his claim in order to receive temporary total disability benefits for his 1978 head injury and subsequent injuries sustained in 1982. The insurer denied liability which was later adjudged compensable by both the Workers' Compensation Court and the Montana Supreme Court. In Lamb I the claimant was properly awarded attorney's fees pursuant to Sec. 39-71-611, MCA.

Following that decision, defendant paid claimant $52.38 per week for approximately 5 years. When claimant reached maximum healing and requested permanent partial benefits calculated at a rate which would increase his weekly benefits to $120.50 per week, the insurer disputed the amount to be paid and denied liability for any amount greater than $52.38 per week.

This new round of litigation cannot be construed as falling under Sec. 39-71-611, MCA. The insurer was not denying liability, but was disputing the amount of compensation owed. The facts fall squarely within the language of Sec. 39-71-612, MCA (1983), which was in effect on the date of Lamb's injury. The standards for computations of benefits for the claimant are fixed by the statutes in effect as of the date of injury. Buckman v. Montana Deaconess Hospital (Mont.1986), 730 P.2d 380, 382, 43 St.Rep. 2216, 2218, citing Trusty v. Consolidated Freightways (Mont.1984), 681 P.2d 1085, 41 St.Rep. 973.

Section 39-71-612, MCA (1983) 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 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 of compensation.

We hold that neither Sec. 39-71-611, MCA, nor the Workers' Compensation Court ruling in Lamb I, which awarded fees pursuant to that statute, apply to the facts of Lamb II as it is now before this Court. The applicable statute is Sec. 39-71-612, MCA (1983).

Defendant next requests this Court to rule that Sec. 39-71-612, MCA, does not mandate an award of attorney's fees either. We disagree.

Defendant asserts that claimant did not prevail on the issue of permanent partial disability benefits and therefore does not merit an award of attorney's fees. Defendant relies on the fact that claimant was demanding benefits of $120 per week rather than the $52.38 per week being paid. Further, the order from the Workers' Compensation Court did not specify any correct amount owed to claimant.

Although it is true that the court ultimately held that claimant did not prevail on his claim for permanent partial disability benefits, the language of the opinion and resulting increase in benefits would indicate otherwise. The specific language used by the Workers' Compensation judge is as follows:

In order to calculate a diminution in earning capacity, one must first determine the wages earned at date of injury and then compare those wages with what claimant's capacity to earn is with his disability....