IN THE SUPREME COURT OF THE STATE OF MONTANA
Claimant and Respondent,
-vsGENERAL HOST CORPORATION,
Employer and Appellant,
LIBERTY MUTUAL INSURANCE CO.,
Defendant and Appellant.
Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
Garlington, Lohn and Robinson, Missoula, Montana
Robert E. Sheridan, Jr. argued, Missoula, Montana
Hirst and Dostal, Plissoula, Montana
John A. Dostal argued, Missoula, Montana
January 19, 1978
Mr. Justice Daniel J. Shea delivered the Opinion of
Liberty Mutual Insurance Company, the insurance carrier
for the employer, General Host Corporation, appeals from an
order of the Worker's Compensation Court determining claimant,
Betty Hutchison, had suffered a compensable injury and was
entitled to compensation and medical benefits.
Liberty Mutual first contends claimant suffered no
compensable injury because she failed to establish her injury
was a "tangible happening of a traumatic nature from an
* * *
unusual strain" within the meaning of section 92-418, R.C.M.
Liberty Mutual also contends that the Worker's Compensa-
tion Court made several errors in determing the weekly benefits
to which claimant was entitled and the Court erred in allowing
claimant's medical expenses introduced in evidence as well as
unlimited future medical expenses.
The claimant agrees in part
that the Court erred in using statutes not in effect at the time
of the injury to award weekly benefits and medical benefits and
agrees the order should be changed to reflect the application
of the correct statutes.
The last contention of Liberty Mutual
is the Court improperly assessed a 10 percent penalty pursuant
to section 92-849, R.C.M. 1947.
Claimant was a part-time employee of Eddy's Bakery in
Missoula, a subsidiary of the General Host Corporation.
dumping pans of buns, pulling racks and pulling pallets she
reached up and slipped, but did not fall.
of pain in her back.
She felt a twinge
She continued to work that day but experienced
pain in her legs and back the following day.
Over the weekend
she and her husband drove to Great Falls to visit their family
and she complained to her husband that her legs and back hurt.
Upon their return from Great Falls on Sunday she telephoned her
foreman and told him of the injury.
at that time.
They discussed insurance
On Monday, March 28, 1973, claimant saw a
doctor concerning her injury and thereafter saw several more
She lost some time from work but did work between
April 19, 1973 and June 23, 1973, but finally quit work because
her back was causing too much distress.
On May 2, 1974, a hearings examiner for the Industrial
Accident Board (the predecessor to Workmen's Compensation
Division) entered his findings and conclusions that claimant
sustained an injury arising out of the course and scope of
her employment and thus was entitled to compensation and
On May 7, 1974, the Board entered an order that
claimant was entitled to compensation benefits under sections
92-701 and 92-702, R.C.M. 1947 and to medical benefits under
section 92-706, R.C.M.
Apparently the issue at the
hearing was confined to that of whether claimant had sustained
a compensable injury.
Accordingly, the order of May 7, 1974
ordered benefits were to be paid "as the facts, yet to be
established, may justify."
Thereafter, Liberty Mutual refused to pay either compensation or any medical benefits.
Claimant contends Liberty Mutual
was aware of the minimum weekly compensation required to be
paid under section 92-701, and that it should have at least
started paying this minimum compensation.
Claimant also contends
Liberty Mutual had copies of claimant's payroll records from
Eddy's Bakery and also had copies of most medical bills then
existing, both contested and uncontested.
Because Liberty Mutual persisted in its refusal to pay
any benefits, between the end of May 1974 and August 20, 1974,
claimant's counsel wrote five letters to Liberty Mutual demanding
that payments be made.
In mid-August 1974 the head of the
Industrial Accident Board issued a directive to Liberty
Mutual demanding that it immediately comply with the order
The directive specifically pointed out that no
agency or court had granted a stay order and thus that any
appeal of Liberty Mutual's would not stay the payment of
Nonetheless, Liberty Mutual still refused to pay
any benefits and has not paid any benefits to this date.
For quite some time, the case was in a state of limbo
caused in part from the switchover from the Industrial
Accident Board to the Workers' Compensation Division and the
creation of a separate Workers' Compensation Court to handle
nothing but industrial injury claims.
A hearing was finally
held in January 1977 before the Workers' Compensation Court.
It is from the findings and conclusions entered after the
hearing that Liberty Mutual appeals.
Liberty Mutual first contends claimant did not sustain
a compensable injury under section 92-418, R.C.M. 1947.
argument is although claimant alleges she injured her back
while in the scope and course of her employment, she is unable
to relate the unusual strain to a tangible happening of a
Liberty Mutual argues claimant did not
relate the strain to any particular task or function she was
required to perform, and could not relate the strain to any
particular time period within the working day.
It is true claimant was unable to state exactly what time
during the day she suffered the twinge in her back, but we do
not feel one is compelled to punch a time clock at the time of
injury in order to qualify for coverage under the Act.
enough that she suffered the twinge in her back while working
and testified what she was doing at the time.
On direct examination claimant testified what she was
doing at the time she felt the twinge in her back.
she slipped on the floor while performing the work but did
not know why she slipped.
She continued to work for the
remainder of the shift although her back occasionally bothered
On cross-examination she testified:
"Q. Specifically, on the date of March 23,
what specific thing did you do that day and
suddenly become aware that your back bothered
you? A. As close as I can remember, I was
pulling the red pallets to put them on the
dolly to take the buns to the racks, and they
were high above my head. I was pulling and
pushing to get them down to where I could
get them, and I kind of slipped.
"Q. On the floor? A. Yes, I didn't go all
the way down, I just twisted and kind of
changed my balance and I got a little twinge.
"Q. Are you aware of what time of day this
happened? A. No, I'm not."
In attacking claimant's credibility Liberty Mutual contends she is unworthy of belief because her co-workers on the
day involved did not know she was injured and because she
later made a statement to her foreman that she injured her
back while changing a flat tire.
This testimony, however,
does not establish claimant was not injured.
was within the province of the Workers' Compensation Court to
give this evidence the weight to which it thought entitled.
Obviously, the Court did not think the evidence was entitled
to much weight.
One co-employee testified she did not see any injury take
place and did not know of claimant's injury until after claimant
had called in to report it.
She asked claimant how she injured
her back and apparently claimant did not state she injured it
while she was lifting or straining.
The second co-employee
worked closely with claimant on the day involved and she did
not know claimant had injured herself.
When they later
discussed claimant's problem claimant was not specific about
how she injured her back.
However, it does not appear co-employee
ever asked claimant how she injured her back.
co-employee testified she worked on a different floor than
claimant on the day involved with the exception of one hour
and therefore would not have known of the injury.
testimony does not establish claimant was not injured in the
manner in which she testified.
After claimant had reported the injury to her employer,
she still had back problems and did not want to report to
On one occasion she called the foreman and told him
she could not make it to work because she had injured her back
while changing a flat tire.
During the hearing claimant admitted
she had given this story to the foreman, but had fabricated
it because she thought she would lose her job if she told her
employer she could not come to work because of the injury
sustained on the job.
She agreed she had never been threatened
with the loss of her job.
A friend of the claimant testified
she had helped claimant fabricate the story.
Whatever the situation may be, we again emphasize this
evidence is strictly within the province of the lower court
Our function is simply to determine if there is
substantial evidence in the record to support the lower court's
findings and conclusions.
Moffett v. Bozeman Canning Co., et
al. (1933) 95 Mont. 347, 26 P.2d 973.
On the basis of the
record before us there certainly is substantial evidence to
support the lower court's order.
Liberty Mutual next contends Workers' Compensation Court
applied the wrong formula in awarding weekly compensation
benefits to claimant.
Although available for work on a full-time
basis, claimant was called for work by Eddy's Bakery only on a
She did not work a regular schedule and was
primarily called to work at the convenience of her employer.
During some weeks she might work only one day and other
weeks she might not be called to work at all.
Claimant started working at Eddy's Bakery on August 17,
1972 and terminated on June 21, 1973.
From the date of her
employment until March 23, 1973, she was employed for a
period of thirty-two weeks and earned $774.03.
weekly wage during this period of time was $24.19.
weekly wage that she received during the course of her employment
This occurred on only one occasion.
the weekly benefits to which claimant was entitled, the
Workers' Compensation Court used this maximum figure of $91.35
and Liberty Mutual contends this was error.
Liberty Mutual contends the Court was required to use one
of two wage averaging formulas in arriving at the weekly wage.
It should either have averaged the total earnings over the
entire thirty-two week period or it should have averaged the
total earnings based on the number of weeks plaintiff actually
performed work at Eddy's Bakery.
In the first instance the
average wages would be slightly over $24.
In the second instance,
the average wage would be slightly over $44.
Since the minimum
weekly compensation rate for claimant under section 92-701,
R.C.M. 1947, was then $45, Liberty Mutual contends that claimant
should have been paid only the $45 per week, rather than the
$60.90, which the Court ordered by using the $91.35 figure.
conclude neither of the averaging methods offered by Liberty
Mutual is required for determining the weekly compensation.
Section 92-701 is not a wage loss statute; rather it is
designed to provide a form of insurance to a person who is
on temporary total disability.
The statutes then in effect provided for a scheme of
benefits which differed depending upon the nature and permanency
of the injury.
Section 92-701, R.C.M. 1947, provided compensa-
tion for temporary total disability.
Section 92-702, R.C.M.
1947 provided compensation for an injury causing total
Section 92-703, R.C.M. 1947, provided
compensation for permanent partial disability.
1947, provided compensation to the family of one who
was killed in an industrial accident.
In determining the
benefits sections 92-702 and 92-703 required past earnings as
well as future earnings to be considered before making an award
But section 92-701 requires only a minimum
and maximum compensation that must be paid.
In interpreting a predecessor statute to section 92-701,
this Court in House v. Anaconda Cop. Min. Co. (1942), 113 Mont.
406, 126 P.2d 814, declared the weekly compensation for temporary
total disability is a form of insurance and is not to be
restricted by wage averaging considerations:
* * * Workmen's compensation was provided--not
to pay damages to the injured employee, in which
case the actual wage received would, of course,
be the conclusive measure of the compensation
to be paid, as that would be the loss, plus
pain and suffering--but rather the purpose of
the Act was to provide a form of insurance,
place the loss on the industry and to insure
that the injured workmen would not be charges
on the public."
House has remained the law.
Simons v. C. G. Bennett Lbr.
Co. (1965), 146 Mont. 129, 404 P.2d 505; Graham v. Tree Farmers,
Inc. (1963), 142 Mont. 483, 385 P.2d 83.
To apply ~iberty
Mutual's theory to section 92-701 would be to deny meaningful
benefits to many workers who were injured before they were
fortunate enough to build up an employment history with a
It would confine a great many working
people to receiving only the statutory minimum weekly allowance
for temporary total disability.
Liberty Mutual relies on the case of Infelt v. Horen,
et al. (1959), 136 Mont. 217, 346 P.2d 556 in asserting
claimant's wages must be averaged to arrive at a figure of
weekly compensation for total temporary disability.
Infelt was not a case involving total temporary disability.
The issue concerned a case of permanent partial disability
under the predecessor statute to section 92-703, R.C.M. 1947.
The statute set out a rate of compensation to be calculated
* * *
difference between the wages received at the time
of the injury and the wages that such injured employee is
capable to earn thereafter,
* * *"
Clearly, Infelt involved
an earning capacity issue and has no application to the facts
of this case.
In determining the amount of temporary total disability
weekly wages must first be determined.
Once that is done the
wage figure is applied to the factor contained in section 92-701,
1947 to arrive at the actual amount weekly compensation
to which one is entitled.
Under section 92-423, R.C.M.
"wages" is defined as the "average" wages earned for the "usual
hours of employment in a day."
Here, the working day was
defined by the union contract as 7.5 hours (anything more than
this was overtime).
Prior to her injury claimant had worked
an entire week at 7.5 hours per day.
was $2.426 per hour.
The hourly wage rate
Accordingly, under section 92-423, R.C.M.
1947, the "usual hours of employment in a day" was 7.5 hours
multiplied by the hourly wage rate of $2.426 per hour.
section 92-422, R.C.M. 1947, a "week" for the purposes of fixing
compensation is considered to be "five (5) working days".
Accordingly, the daily wages multiplied by 37.5 hours in the
work week, came to $91.35.
We find no error.
The actual weekly benefits that the Workers' Compensation
Court determined claimant was entitled to was $60.90 per week.
This was arrived at by multiplying the $91.35 by the 66 2/3
percent factor contained in section 92-701.1.
however, was not in effect at the time and thus the Court
should have used its predecessor statute, section 92-701,
which had a compensation factor of 66.5 percent for one in
the claimant's position.
statute was used.
Claimant agrees that the wrong
The weekly compensation therefore, must
be amended to reflect use of the proper statute.
compensation to which claimant is entitled under temporary
total disability is $57.09.
After finding her claim compensable the Workers'
Compensation Court awarded unlimited medical benefits under
section 92-706.1, R.C.M.
This statute went into effect
on July 1, 1975, more than a year after claimant's injury.
Liberty Mutual contends that the Court followed the wrong
statute and should have applied section 92-706, R.C.M. 1947,
which was in effect at the time.
The claimant concedes that
the Court applied the wrong statute but argues that the circumstances of this case require that section 92-706 be applied
to allow claimant the maximum possible medical coverage.
Section 92-706 provides:
"During the first thirty-six (36) months after the
happening of an injury, the employer or insurer
or the board, as the case may be, shall furnish
reasonable services by a physician or surgeon,
reasonable hospital services or medicines when
needed, and such other treatment approved by
the board, not exceeding in amount the sum of
twenty-five hundred dollars ($2,500.00) provided,
however, that in cases of total disability
when apportionment of such sum does not meet
all hospitalization expenses, the board may
allow an additional amount for additional
hospital and medical expenses as in special
cases it may deem proper."
As far as we can tell from the record, claimant has
been disabled since her injury.
During this time she has
submitted medical bills in the amount of $1,833.37 and Liberty
Mutual has not paid them.
Claimant cannot pay for them
She needs a back operation which at the time was
estimated conservatively to cost $3,000.
a guess as to what the cost may be today.
We would not venture
Not having the
resources, claimant has not been able to have the recommended
surgery even though an operation on her back was advised as
soon as possible.
The general thrust of Liberty Mutual's argument is if it
must pay medical expenses, then that duty ended three years
(36 months) after the date of the injury.
should only be held responsible for those medical and hospital
expenses incurred during the 36 months immediately following
Under section 92-706, R.C.M. 1947, the
former Industrial Accident Board was authorized in its discretion,
to allow additional amounts for hospital and medical expenses
in special cases.
One of the conditions of a special case is
that it must be a total disability.
claimant is totally disabled.
Here, we do not know if
While it appears she is in need
of a spinal fusion we cannot say what the future holds for her
in terms of the extent of disability.
It could well be that claimant's situation may amount to
a special case of total disability.
If so it would work an
injustice to hold that since the 36 months has passed she is
not eligible for consideration as a special case.
it has been Liberty Mutual that has been fighting this case all
the way and which has steadfastly refused to recognize and pay
any benefits that have been awarded to claimant, even though
it has not obtained a stay order.
In any event, a special case
of total disability would have to be presented to the now
existing Workers' Compensation Division for its consideration.
But even if it is later determined claimant is not a
special case of total disability, we do not feel that in good
conscience, Liberty Mutual can avoid any expenses incurred
by claimant after the expiration of the 36 months from the
date of the injury and which may be incurred in the future.
It would be unconscionable to allow Liberty Mutual to use the
court system to its advantage and thereby avoid its obligations
to claimants under the Workmen's Compensation Act simply
because the time has elapsed for the payment of benefits.
the extent of its statutory obligation under section 92-706,
1947, we hold Liberty Mutual must pay any expenses
incurred after the expiration of the 36 months from the injury,
or which may be incurred in the future, which are related to
Liberty Mutual also contends that the Workers' Compensation
Court improperly allowed the payment of all medical bills which
claimant submitted to the Court during the January 1977 hearing.
The expenses amounted to $1,833.37 and the Court allowed all
Liberty Mutual argues many of the bills do not relate
to treatment of claimant's back injury.
It also contends that
the bills should not be allowed because the claimant saw many
doctors without being referred from the first doctor who treated
her and without getting permission from the insurer before
changing doctors, as required by Montana Administrative Code,
Liberty Mutual has not pointed to any bills submitted by
claimant that were not related to claimant's injury and we will
not substitute our judgment for that of the Workers' Compensation Court. Moreover, the administrative regulation does not
apply to the facts of this case.
If would be an idle act for
the claimant to request Liberty Mutual's permission to change
doctors when Liberty Mutual had in fact denied the compensability of the claim.
Indeed, Liberty Mutual would
probably have taken the position that since claimant's claim
was not compensable the claimant did not have to get the
Perhaps Liberty Mutual feared that to
grant permission to change doctors would impliedly recognize
the compensability of claimant's injury.
This Court recently ruled the administrative regulation
involved cannot prohibit a claimant from going to the doctor
of her choice and such doctors could support her claim for
The only effect of the rule is that if no
permission is obtained, the insurer is not obligated to pay
the medical expenses incurred.
(No. 14132, 7/3/78).
Garland v. Anaconda Co.
, 35 St.Rep.
While not factually applicable
to the circumstances of this case, we stated that the admini-.
strative rule could not be used to defeat the general purpose
of the Workmen's Compensation Act.
case at hand.
The same is true of the
Where an insurer refuses to recognize the
compensability of a claim there is no duty on the claimant
to obtain permission of the insurer to change doctors.
denying a claim an insurer is taking a chance that later it
may be proven to be compensable. If so, the insurer, in
denying liability for medical bills, cannot hide behind the
regulation as a sanctuary against the payment of medical
bills incurred by a claimant.
In this case the Workers' Compensation Court ordered
payment of the medical bills and we see no evidence to justify
overturning that order, in whole or in part.
The only evidence
elicited on cross-examination of claimant was that the original
doctor claimant had seen, did not refer her to the remaining
Even if that were so, we cannot conclude under the
facts of this case that claimant had no right, under pain
of losing medical benefits, to seek out the medical treatment
she felt necessary to get to the source of her problem.
Accordingly, the Court was correct in ordering Liberty Mutual
to pay all the bills submitted by claimant.
Finally, Liberty Mutual complains that the Workers'
Compensation Court was wrong in assessing a statutory 10 percent
penalty against them for unreasonably delying or refusing to
Section 92-849, R.C.M. 1947.
of the facts leads us to conclude that reasonable men would
conclude that Liberty
Mutual has been anything but reasonable.
For the past three years Liberty Mutual has not only
denied the compensability of the claim but refused to pay the
weekly compensation and medical benefits after it had been
ordered to do so.
It refused even though it did not have a
stay order delying payment until final resolution of this matter.
Assuming moreover, a legitimate dispute as to the amount of
weekly compensation, Liberty Mutual knew claimant would at
least be entitled to the minimum compensation compelled by
And there were certain medical bills even Liberty
Mutual recognized as being related to the injury, but still
the bills remain unpaid.
Clearly the assessment of the
statutory 10 percent penalty was called for in this case.
The decision of the Workers' Compensation Court is
affirmed except as to the modifications noted herein.
case is remanded to the Workers' Compensation Court for
further proceedings consistent with this opinion and for
such further proceedings as are required to bring this case
to a final resolution.
M r . J u s t i c e John Conway H a r r i s o n D i s s e n t i n g :
I respectfully dissent.
I do n o t f i n d c l a i m a n t , B e t t y H u t c h i s o n , c a r r i e d t h e
burden of proof w i t h r e s p e c t t o t h e j o b - r e l a t e d
c h a r a c t e r of
She c o u l d n o t r e l a t e t h e i n j u r y t o any p a r t i -
c u l a r t i m e of day n o r t o any s p e c i f i c t a s k s h e performed on
t h a t day.
None of h e r co-workers was aware t h a t s h e had
i n j u r e d h e r back w h i l e working.
I n addition, claimant t o l d
h e r foreman s h e had i n j u r e d h e r back changing a f l a t t i r e .
The m a j o r i t y s t a t e s :
"This testimony does n o t e s t a b l i s h t h a t
c l a i m a n t was - i n j u r e d i n t h e manner i n which s h e t e s t i -not
But i t i s n o t n e c e s s a r y f o r a n
employer t o p r o v e t h a t a n employee was n o t i n j u r e d - - t h a t
would p l a c e a n u n r e a s o n a b l e burden on t h e employer.
c l a i m i n g t o have been i n j u r e d on t h e job h a s t h e burden of
p r o v i n g s u c h an i n j u r y .
V e t s c h v . Helena T r a n s f e r
( 1 9 6 9 ) , 154 Mont. 1 0 6 , 460 P.2d 757.
The m a j o r i t y d o e s n o t p r o p e r l y a s s e s s t h e s i g n i f i c a n c e
of s e c t i o n 9 2 - 4 1 8 ( 1 ) , R.C.M.
1947 (Supp. 1 9 7 7 ) .
t o t h e s t a t u t e , a n i n j u r y must be:
" (1) a t a n g i b l e happening of a t r a u m a t i c
n a t u r e - -a n unexpected c a u s e , o r u n u s u a l
strain, resulting i n either external o r
i n t e r n a l p h y s i c a l harm, and such p h y s i c a l
c o n d i t i o n a s a r e s u l t t h e r e f r o m * * *."
(Emphasis added. )
C l a i m a n t , i n t h e i n s t a n t c a s e , h a s f a i l e d t o show a " t a n g i b l e
happening" which m e e t s t h e r e q u i r e m e n t s of t h i s C o u r t ' s
t e s t s t a t e d i n H u r l b u t v. V o l l s t e d t K e r r Co.
Mont. 303, 306-07,
( 1 9 7 5 ) , 167
538 P.2d 344:
" * * * t h e r e a r e two e l e m e n t s i n t h e s t a t u t e
which must b e met (1) t h e r e must b e a t a n g i b l e happening o f a t r a u m a t i c n a t u r e , and ( 2 )
t h i s must b e shown t o be t h e c a u s e of p h y s i c a l harm. I'
A p a r t from t h e q u e s t i o n of whether t h i s was a compens a b l e i n j u r y , I think t h e majority a l s o erred i n allowing
payment of a l l t h e m e d i c a l b i l l s c l a i m a n t s u b m i t t e d .
c l a i m a n t ' s own a d m i s s i o n , c e r t a i n b i l l s were i n c l u d e d which
had - c o n n e c t i o n w i t h t h e a l l e g e d i n j u r y .
When asked a b o u t
her l i s t i n g three gynecologists with her other t r e a t i n g
physicians, claimant admitted:
"Q. The d o c t o r s d i d n o t s e e you f o r your
back, d i d t h e y ? A. No."
F u r t h e r m o r e , s h e s u b m i t t e d b i l l s from a t l e a s t t e n
d i f f e r e n t doctors.
t h e r e i s no a l l e g a t i o n t h a t
claimant's o r i g i n a l t r e a t i n g physician d i d not properly
t r e a t her.
There i s no e v i d e n c e of any emergency neces-
s i t a t i n g c l a i m a n t ' s going t o another d o c t o r .
While I a d m i t
t h e r e a r e o f t e n c i r c u m s t a n c e s a p a r t from t h o s e mentioned
which m i g h t r e q u i r e t r e a t m e n t by a n o t h e r p h y s i c i a n , I would
impose a r u l e of r e a s o n a b l e n e s s i n s e e k i n g a v a r i e t y of
F o r t h e s e r e a s o n s I would r e v e r s e t h e d e c i s i o n of t h e
Workers' Compensation C o u r t a s t o l i a b i l i t y ; o r i n t h e
a l t e r n a t i v e , I would r e v e r s e t h e c o u r t ' s d e c i s i o n r e g a r d i n g
a l l o w a b l e m e d i c a l e x p e n s e s and remand f o r f u r t h e r c o n s i d e r a t i o n i n l i n e with t h i s opinion.