Legowik v. Montgomery Ward & Co.

• Court: Montana Supreme Court
• Writing for the Court: DALY; JAMES T. HARRISON
• Citation: Legowik v. Montgomery Ward & Co., 486 P.2d 867, 157 Mont. 436 (Mont. 1971)
• Decision Date: 30 June 1971
• Docket Number: No. 11967,11967
• Parties: M.P. LEGOWIK, Claimant and Respondent, v. MONTGOMERY WARD & COMPANY, Inc., of Illinois, Employer, Defendant and Appellant.

Page 867

486 P.2d 867

157 Mont. 436

M.P. LEGOWIK, Claimant and Respondent, v. MONTGOMERY WARD & COMPANY, Inc., of Illinois, Employer Defendant and Appellant.

No. 11967.

Supreme Court of Montana.

Submitted April 13, 1971.

Decided June 30, 1971.

Alexander, Kuenning & Hall, Edward C. Alexander, Great Falls, Neil Ugrin, Great Falls, (argued), for appellant.

Hoyt & Bottomly, Great Falls, Richard V. Bottomly, Great Falls, (argued), for respondent.

DALY, Justice.

This is an appeal from a judgment of the district court of the eighth judicial district, county of Cascade, Hon. Paul G. Hatfield presiding, affirming a decision of the Industrial Accident Board. The appeal is limited to the lump-sum payment of the award and does not contest the Board's determination that claimant was and is totally and permanently disabled.

Claimant Matthew P. Legowik was a thirty year employee of Montgomery Ward & Co., Inc., an Illinois corporation, defendant herein. Montgomery Ward is a self-insurer under Plan I of the Workmen's Compensation Act. Claimant's initial injury occurred during the course of his employment on August 16, 1967, when a heavy boat loaded on a trailer suddenly dropped while he was holding the trailer tongue. The result was a downward jolt to claimant's shoulders.

Claimant's injury was diagnosed October 13, 1967, as capsulitis of the right shoulder which is an inflammatory reaction of the capsule of the joint. The injury was one which ordinarily should have cleared up within two or three months. Dr. John Layne, of the Great Falls Clinic, the attending physician, diagnosed this condition but by the first part of November 1967, claimant continued to have appreciable stiffness in both arms and the diagnosis was changed from acute capsulitis to adhesive capsulitis. In adhesive capsulitis there is greater limitation of motion and more pain, and it indicates a more severe inflammatory reaction. By January 1968, claimant's shoulders were markedly limited in motion and the term "shoulder-hand syndrome" was applied. He had lost motion in most fingers of both hands and both hands were swollen and puffy.

Throughout 1968 and 1969, claimant was seen by his physician Dr. Layne, by Dr. Forbeck, Dr. Bloemendaal, and Dr. Thomas Powers, all of Great Falls, and by doctors at the Mayo Clinic, all highly respected specialists. These medical men examined claimant for both parties in this action, and their reports and testimony firmly established that claimant's condition has markedly deteriorated due to psychosomatic trauma brought on by nervousness, depression, and underlying emotional problems. The evidence produces no indication of malingering being involved.

Claimant believes he was unjustly treated by his employer of thirty years after an on the job accident. There was considerable confusion in regard to this claim of claimant. He received sick pay and vacation pay from Montgomery Ward following the accident, but an employer's first report of injury was not filed until October 23, 1967. There was also a disability insurance payment under a policy carried by Montgomery Ward to which Legowik had contributed. When claimant was placed on compensation the amount was in error, and upon the suggestion of Dr. Layne that claimant return to part-time employment, Montgomery Ward refused unless a complete medical release was furnished. During this time Legowik was demoted from his job as service department manager. Also at this time, the bill from the Mayo Clinic fell into an area of misunderstanding and was not paid. Litigation followed.

Proceedings were instituted before the Industrial Accident Board to determine the extent of the disability of claimant; to request his bimonthly payments be made in one lump sum; and, to determine the amount of medical payment to be made to adjust the controversy over the Mayo Clinic medical bill and others. A hearing was had at Great Falls on February 13, 1970. The findings resulting from that hearing pertinent to this action were: that Mr. Legowik was permanently and totally disabled; that a reasonable showing of need had been made for commutation of the award to a lump sum; and, that it was to the best interest of claimant to convert the balance of his scheduled bimonthly payments to a lump-sum award.

The Board's order was entered April 6, 1970. Montgomery Ward petitioned the Board for rehearing which was denied by the Board on May 18, 1970. Montgomery Ward then filed a partial appeal to the district court from the Board's order of April 6 and the Board's order denying a rehearing, insofar as the orders concerned the payment of the award in a "lump sum".

The district court permitted additional testimony by one Dr. George Gelernter, a psychiatrist, offered by the claimant. No other testimony was offered or taken.

The district court on September 8, 1970, found there was sufficient credible evidence before the Industrial Accident Board to demonstrate a reasonable basis for a lump-sum payment; that the additional testimony of the psychiatrist in district court substantiated the already sufficient showing of need and necessity for commutation of the award to a lump-sum payment; and, affirmed the findings of fact, conclusions of law, and order of the Industrial Accident Board. From this judgment the employer, Montgomery Ward, appeals.

Only one issue is presented for review: Is there substantial credible evidence in this case to support a lump-sum award of workmen's compensation?

The statute that authorizes lump-sum payments is section 92-715, R.C.M.1947; it provides in pertinent part:

"The biweekly payments provided for in this act may be converted, in whole or in part, into a lump-sum payment ***. Such conversion *** shall rest in the discretion of the board, both as to the amount of such lump-sum payment and the advisability of such conversion."

As to the discretion of the Industrial Accident Board in awarding lump-sum payments, this Court in Williams v. Industrial Accident Board, 109 Mont. 235, 240, 97 P.2d 1115, stated:

"Wide discretion is vested in this board. A very high degree of good faith, impartiality, and fairness should be...