Polich v. Whalen's O. K. Tire Warehouse

• Court: Montana Supreme Court
• Writing for the Court: WEBER; HASWELL
• Citation: Polich v. Whalen's O. K. Tire Warehouse, 634 P.2d 1162, 194 Mont. 167, 38 St.Rep. 1572 (Mont. 1981)
• Decision Date: 25 September 1981
• Docket Number: No. 81-153,81-153
• Parties: William T. POLICH, Claimant and Respondent, v. WHALEN'S O. K. TIRE WAREHOUSE, Employer, and Glacier General Assurance Co., Defendant and Appellant.

Page 1162

634 P.2d 1162

194 Mont. 167

William T. POLICH, Claimant and Respondent, v. WHALEN'S O. K. TIRE WAREHOUSE, Employer and Glacier General Assurance Co., Defendant and Appellant.

No. 81-153.

Supreme Court of Montana.

Submitted on Briefs June 17, 1981.

Decided Sept. 25, 1981.

Garlington, Lohn & Robinson, Missoula, for defendant and appellant.

Dowling Law Firm, Helena, for claimant and respondent.

WEBER, Justice.

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 late 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, 701, 37 St.Rep. 620, 622.

In a recent case, Utick v. Utick (1979), Mont., 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 Mont. 469, 474, 342 P.2d 752, 755.) 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 an 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..." Willoughby, supra, 609 P.2d at 704, 37 St.Rep. at 625, (citation omitted)...