Jensen v. Zook Bros. Construction Co. , 174 Mont. 78 ( 1977 )

No. 13671
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
HARLEN JENSEN,
Claimant and Respondent,
ZOOK BROTHERS CONSTRUCTION CO.,
Employer, and ARGONAUT INSURANCE COMPANY,
Defendant and Appellant.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant,
Harris, Jackson & Utick, Helena, Montana
Aridrew J. Utick argued, Helena, Montana
For Respondent:
Harrison, Loendorf & Poston, Helena, Montana
Jerome T. Loendorf argued, Helena, Montana
Submitted: June 7, 1977
Decided: ' . ,
Filed:
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Clerk
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.
Defendant-insurer, Argonaut Insurance Company appeals
from t h e f i n d i n g s of f a c t and conclusions of law, o r d e r and
judgment of t h e workers' compensation c o u r t . The workers'
compensation c o u r t r u l e d i n s u r e r was l i a b l e t o claimant f o r
compensation b e n e f i t s due a s t h e r e s u l t of c l a i m a n t ' s i n d u s t r i a l
injury .
O n August 28, 1974, claimant s u f f e r e d an i n d u s t r i a l i n j u r y
i n t h e course of h i s employment with Zook Brothers Construction
Co. An examining physician described t h e i n j u r y a s a severe
crushing i n j u r y t o t h e l e f t hand. Ckimant incurred t h e i n j u r y
when he was i n t h e process of greasing a backhoe, one of
c l a i m a n t ' s d u t i e s a s an o i l e r on heavy equipment. The backhoe
o p e r a t o r moved the backhoe bucket,cruaking c l a i m a n t ' s hand.
The i n s u r e r accepted l i a b i l i t y f o r c l a i m a n t ' s i n j u r y and
made compensation payments t o claimant f o r temporary t o t a l d i s -
a b i l i t y during t h e period August 28, 1974, through October 3, 1975,
pursuant t o s e c t i o n 92-701.1,R.G.M. 1947. Claimant's d i s a b i l i t y
s t a t u s was changed t o permanent p a r t i a l d i s a b i l i t y and d i s a b i l i t y
b e n e f i t s were paid during t h e period October 4 , 1975 through
March 26, 1976. By l e t t e r dated October 10, 1975, i n s u r e r i n v i t e d
claimant t o d i s c u s s a f i n a l settlement of t h e claim; t h e p a r t i e s
f a i l e d t o reach any agreement on settlement of t h e claim.
By l e t t e r dated May 24, 1976, i n s u r e r advised claimant
it had paid a l l b e n e f i t s which claimant was e n t i t l e d t o under
t h e Montana Workers' Compensation Act. On June 14, 1976 claimant
f i l e d a p e t i t i o n f o r hearing with t h e workers' compensation c o u r t
a l l e g i n g claimant was t o t a l l y d i s a b l e d a s a r e s u l t of h i s indus-
t r i a l i n j u r y of August 28, 1974, and was wrongfully refused com-
pensation b e n e f i t s . Claimant sought a r u l i n g of the workers'
compensation court ordering t h a t :
"1. Claimant continues t o be t o t a l l y disabled a s
a r e s u l t of h i s i n d u s t r i a l injury of January 1, 1976.
"2. That Defendant i n s u r e r wrongfully refused t o r e i n s t a t e
by-weekly compensation and i n accordance
with Section 92-701.1, R.C.M. 1947, the Claimant i s en-
t i t l e d t o temporary t o t a l d i s a b i l i t y payments a t t h e
weekly r a t e provided by law, r e c t r o a c t i v e t o March 26, 1976,
and i s e n t i t l e d t o weekly temporary t o t a l d i s a b i l i t y
payments a s long a s Claimant continues t o be temporarily
t o t a l l y disabled a s a r e s u l t of h i s i n d u s t r i a l injury.
"3. Claimant i s e n t i t l e d t o t h a t amount of compensation
which represents the difference betwken t h e r a t e of
compensation he was paid and the r a t e he should have been
paid between August 28, 1974 and March 26, 1976.
4 The Defendant has unreasonably refused t o r e i n s t a t e
compensation payments, and i n accordance with Section
92-849, R.C.M. 1947, Claimant i s e n t i t l e d t o an increased
award of ten (10) per cent i n accrued weekly compensation
benefits.
"5. I n accordance with Section 92-616, R.C.M. 1947, t h e
i n s u r e r s h a l l pay reasonable c o s t s and attorneys fees."
(Emphasis added.)
Hearing was held before t h e workers' compensation court
on August 31, 1976. On November 15, 1976, the workers' compensa-
t i o n court issued i t s findings of f a c t and conclusions of law
and order holding:
"CONCLUSIONS OF LAW
' 1 That t h e claimant Harlen Jensen, was injured
i n the course of h i s employment with the Zook Brothers
Construction Company on t h e 28th day of August, 1974.
"2. That the claimant i s t o t a l l y disabled within
the meaning of the Workers' Compensation Law.
"3. That the Defendant, Argonaut Insurance Company,
i s l i a b l e t o the claimant f o r a l l compensation provided
by the Workers' Compensation laws of the s t a t e of Montana,
which a r e due a s a r e s u l t of the i n j u r i e s received by
claimant on August 28, 1974.
"4. That claimant i s e n t i t l e d t o t h e payment of
reasonable attorneys' f e e s and f o r c o s t s expended i n
the course of the workers' Compensation hearing and prep-
atattons f o r the same." (Emphasis added.)
On December 6, 1976, the insurer petitioned the workers'
compensation court for rehearing. Insurer's petition for re-
hearing was denied and judgment was entered for claimant on
Deceinber 9, 1976. The workers' compensation caurt's judgment
adopted the court's conclusions of law, set out heretofore, and
set claimant's attorney fees and costs at $937.50.
On December 10, 1976, the Division of Workers' Compensation
issued a memorandum. It reads in pertinent part:
"The impairment rating as given by the attending physician
of 5% has been paid out. There is no indication whether
the Judge in his conclusion No. 2 refers to temporary
total disability or permanent total disability, nor does
it refer to any specific amount of compensation. Under
the circumstances, I am unable to request the carrier to
make any payments until we have some clarification as to
what should have been ordered."
Insurer appeals directly to this Court, from the final
judgment of the workers' compensation court, pursuant to section
92-852(2), R.C.M. 1947. McAlear v. Arthur G. McKee & Co.,
Mont. , 558 P.2d 1134, 33 St.Rep. 1337; Skrukrud v. Gallatin
Laundry Co., Inc., - .
Mont , 557 P.2d 278, 33 St.Rep. 1191.
The insurer presents two issues on review:
1. Whether the findings of fact and conclusions of law
and order,and judgment of the workers' compensation court are
intelligible and capable of comprehension?
2. If the first issue is resolved in the affirmative,
whether there is substantial evidence to support the findings
of the workers' compensation court?
The law is clear in Montana that the findings and decision
of the workers' compensation court are presumed to be correct
and if supported by credible evidence, must be affirmed. McAlear
v. Arthur G. McKee & Co., supra; Skrukrud v Gallatin Laundry
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Go., Inc., supra; Miller v. City of Billings, Mont . 3
555 P.2d 747, 33 St.Rep. 984. .
The initial obstacle confronting this Court is determining
the meaning of the conclusions of law and judgment of the
workers' compensation court. The issues which confronted the
workers' compensation court were:
1 Whethet claimant is presently disabled, within the
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meaning of the Montana Workers' Compensation Act?
2 If claimant is found to be disabled, whether claimant's
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disability is total or partial, permanent or temporary?
3. To what amount of compensation is claimant entitled?
The workers' compensation court concluded "claimant is totally
disabled within the meaning of the Workers ' Compensation Law"
and insurer "is liable to the claimant for all compensation
provided by the Workers' Compensation laws of the state of Montana".
Such a holding is incomplete and fails to provide this Court
with a final judgment capable of being reviewed on appeal.
We refrain from considering the second issue on appeal--
there is
whether/substantial evidence to support the findings of the
workers' compensation court, until its decision is clarified.
The cause is remanded to the workers' compensation court for
clarification, consistent with
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We concur:
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Chief Justice
Justices.