Myers v. 4 B S Restaurant Inc. ( 1977 )

IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
EARL R. MYERS,
Claimant and Respondent,
4 B'S RESTAURANT, INC., Employer, and
GLACIER GENERAL ASSURANCE COMPANY,
Defendant and Appellant.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Berg, Angel, Andriolo and Morgan, Bozeman, Montana
Richard J. Andriolo argued, Bozeman, Montana
For Respondent:
Dennett and Bennett, Bozeman, Montana
Lyman H. Bennett, Jr. argued and Lyman H. Bennett, I11
argued, Bozeman, Montana
Submitted: March 2, 1977
Decided: MAR 1 8 1 n
9.
Filed: MAR 1 9 1T
9
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Employer's Plan I1 insurer appeals from a Workers'
Compensation Court award to claimant of permanent total dis-
ability benefits, costs and attorney's fees.
During the pendency of this appeal, claimant died on
December 14, 1976. h ~
. ~. f l It ~is y
l ~
conceded that appellant insurer paid claimant all benefits to
which he was entitled up to the time of his death. As compen-
sation benefits terminated upon claimant's death (section 92-
608, R.C.M. 1947), appellant's first three issues on appeal
relating to the duration and maximum amount of compensation
payable are no longer relevant.
The only remaining issue is whether the award of attor-
ney's fees is permissible in this case.
The controlling statute at the time of claimant's acci-
dent, section 92-616, R.C.M. 1947, provided:
"Costs and attorneys' fees payable on denial
of claim later found compensable. In the event
the insurer denies the claim for compensation or
terminates compensation benefits, and the claim
is later adjudged compensable, by the division
or on appeal, the insurer shall pay reasonable
costs and attorneys' fees as established by the
division. However, under rules adopted by the
division and in the discretion of the division,
an insurer may suspend compensation payments
for not more than thirty (30) days pending the
receipt of medical information."
Insurer argues that attorney's fees are not allowable
because they never denied compensability of the claim but only
contended that claimant was entitled to permanent partial dis-
ability benefits rather than permanent total disability benefits.
Additionally the insurer contends that claimant is not entitled
to attorney's fees because of his neglect to furnish medical
information on request.
Claimant, on the other hand, states that the compensa-
bility of the claim was at issue because of insurer's refusal
to pay permanent total disability benefits which were subse-
quently adjudicated payable by the Workers' Compensation Court.
Claimant further contends that he did not refuse or neglect
to provide medical information available to him or his attorney
and that under such circumstances the furnishing of medical
information is not a condition precedent to an award of attor-
ney's fees.
In our view, the record supports a denial by insurer
to pay the claim for compensation within the meaning of section
92-616, R.C.M. 1947. Insurer denied the claim for total dis-
ability benefits of claimant. The Workers' Compensation Court
subsequently adjudicated such benefits payable. As the purpose
of the statute is to grant claimant a net recovery of compensa-
tion benefits to which he is entitled under the Act, a partial
denial of benefits later adjudged payable is within the purview
of section 92-616 authorizing an award of attorney's fees. If
the statute were otherwise construed to apply only to total
denial of compensation benefits, its purpose and objective of
affording a net recovery would be defeated.
Nor does the statute require medical information not
then possessed by claimant to be furnished insurer as a con-
dition precedent to recovery of attorney's fees. The statute
is completely silent concerning any such requirement. In con-
struing a statute, the duty of the Court is simply to ascertain
and declare what in terms or in substance is contained therein
and not to insert what has been omitted. Section 93-401-15,
R.C.M. 1947; Dunphy v. Anaconda Co., 151 Mont. 76, 438 P.2d 660,
and cases cited therein. If insurer requires further medical
documentation before honoring claimant's claim for compensation,
the burden and expense thereof is its obligation if it seeks to
avoid the risk of payment of attorney's fees should the claim
later be adjudged compensable. We do not excuse claimant from
furnishing insurer on request such medical information as he
possesses or making himself available for medical examination
at the insurer's request, but such are not the facts of this
case.
The record here contains substantial evidence support-
ing the adjudication of the Workers' Compensation Court. We
affirm its findings of fact, conclusions of law and order deny-
ing rehearing. See Skrukrud v. Gallatin Laundry Co., Inc.,
Mont . , 557 P.2d 278, 33 St.Rep. 1191. We remand to the
Workers' Compensation Court for determination of reasonable costs
and attorney's fees on appeal "as established by the division
and Ei,ei.
?s t-
r' . . . Section 92-616, R.C.M.
1947.
Justice
c i ' Justice
h&£ d
A
-IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 13501
EARL R. MYERS,
Claimant and Respondent,
4 B'S RESTAURANT, INC., Employer, and
GLACIER GENERAL ASSURANCE COMPANY,
Defendant and Appellant.
O R D E R
Please make the following change on page 4 of the
above entitled opinion.
In line 12 from the top of the page, please delete
the following: "and in the discretion of the division"
DATED this 22nd
I
Chief Justice
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 13501
EARL R. MYERS,
Claimant and Respondent,
VS.
4 B ' s RESTAURANT, INC .,
Employer,
and
GLACIER GENERAL ASSURANCE
COMPANY,
Defendant and Appellant.
O R D E R
The petition for rehearing, the objections thereto and
the cross-petition for rehearing having been submitted to the
Court for decision,
IT IS ORDERED:
(1) That the opinion of the Court be modified by placing
a period after the date "December 14, 1976" and striking the
words following "from causes other than his injury", all on
line 5, page 2 of the original opinion.
(2) That as so modified, the original opinion is approved
and the petition for rehearing, objections thereto, and the cross-
petition for reharing are denied.
DATED this _$&
d