CLARK v HENSEL PHELPS CONSTRUCTION
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No. 13399 I N THE SUPREPlE COURT O THE STATE O M N A A F F O T N 1977 J O H N CLARK, C l a i m a n t and A p p e l l a n t , HENSEL PHELPS CONSTRUCTION C O . , Employer and AETNA CASUALTY & SURETY C O . , I n s u r e r and R e s p o n d e n t . Appeal from: W o r k e r s ' Comp. C o u r t J u d g e W i l l i a m E . Hunt, p r e s i d i n g . Counsel o f Record: For Appellant: Hoyt and B o t t o m l y , G r e a t F a l l s , Montana J o h n C . Hoyt a r g u e d , G r e a t F a l l s , Montana Thomas Lewis a p p e a r e d , G r e a t F a l l s , Montana For Respondent : J a r d i n e , S t e p h e n s o n , B l e w e t t & Weaver, G r e a t F a l l s , Montana James Aiken a r g u e d , G r e a t F a l l s , Montana Submitted: J a n u a r y 27, D e c i d e d : FEB Filed: :E @ g/I 1 6 1a 9 1977 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal concerns written notice to claimant and approval of the Division of Workers' Compensation prior to the termination of workers' compensation benefits to an injured workman. Claimant John Clark was injured in an industrial accident on August 16, 1973. He was employed by Hensel Phelps Construction Co. insured under Plan I1 of the Workers' Compensation Act. Aetna Casualty & Surety Co., "carrier", was the con- struction company's insurer. Clark was paid temporary total disability benefits from the date of the accident through October 2, 1973. The carrier stopped payment of benefits without notice to claimant or approval of the Division of Workers' Compensation. In June 1975, claimant requested a hearing before the Workers' Compensation Court. That court found claimant entitled to temporary total disability benefits from the date of the accident through October 2, 1973 and again from October 28, 1975 until further order of the court or until the claimant was able to return to work. No benefits were awarded for the period of October 3, 1973 through October 28, 1975, and it is from this omission claimant appeals. The record reveals the injury suffered by claimant was an extremely painful and disabling back injury. claimant has experienced Since the accident recurcihg- burning pains in his lower back and left leg. The injury has created a weakness in his left leg causing a limp which is becoming progressively more pronounced. Immediately after the accident claimant was examined by Dr. Schroeder in Eureka, Montana. Dr. Schroeder diagnosed claimant's injury as a 1 I muscle spasm, left lumbar" and referred him to a specialist. Later D r . Schroeder informed t h e c a r r i e r claimant could r e t u r n t o work on October 3, 1973. This bpinion was used by t h e c a r r i e r a s t h e b a s i s f o r termination of workers' compensat i o n b e n e f i t s t o claimant. The record i s c l e a r , claimant was unable t o do any kind of p h y s i c a l labor f o r t h e period i n question. From t h e d a t e of t h e accident through October 1975, claimant was examined by a t l e a s t e i g h t d i f f e r e n t doctors f o r treatment f o r h i s i n j u r e d back. O October 28, 1975 claimant was examined f o r t h e f i r s t n time by D r . Richard A . Nelson. O t h a t d a t e D r . Nelson determined n claimant was d i s a b l e d and unable t o engage i n h i s normal kind of work a s a r e s u l t of t h e e x i s t i n g back i n j u r y . Apparently D r . Nelson's r e p o r t was used by t h e Workers' Compensation Court i n f i x i n g t h e d a t e f o r t h e resumption of b e n e f i t payments t o claimant. There was no reason given by t h e c o u r t f o r t h e f a i l u r e t o r e q u i r e t h e c a r r i e r t o comply with t h e n o t i c e and approval provisions of t h e Workers' Compensation Act p r i o r t o t h e termination of compensation b e n e f i t payments. A t i s s u e i s t h e n e c e s s i t y of giving claimant w r i t t e n n o t i c e and acquiring approval of t h e Division of Workers' Compensat i o n , p r i o r t o t h e termination of b e n e f i t s . The controlling s e c t i o n of t h e Workers' Compensation Act i s s e c t i o n 92-615, R.C.M. 1947, amended i n 1974, but provided i n 1973: "* ** If t h e i n s u r e r determines t o i n i t i a l l y deny a claim, o r a f t e r a claim has been accepted, terminates biweekly compensation b e n e f i t s , i t may do so only a f t e r f i f t e e n (15) days w r i t t e n n o t i c e t o t h e claimant and t h e d i v i s i o n , and a f t e r w r i t t e n approval of t h e division." The effect of this statute upon a fact situation as in the instant case, is a matter of first impression. However, the statute clearly and unambiguously states that notice to claimant and the division, and written approval of the division are prerequisites to the termination of compensation benefits. Where the language of a statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court strue. Hammill v. Young, Mont . , 540 P.2d con- 971, 32 St. Rep. 935; Dunphy v. Anaconda Co., 151Mont. 76, 438 P.2d 660. The Rhode Island Workmens' Compensation Act contains a provision similar to section 92-615, R.C.M. 1947. Rhode Island General Laws 1956, section 28-35-46 states in pertinent part: "Before an employer may discontinue, suspend or reduce compensation payments whether they are being received under an agreement, award, order, finding or decree, the employer shall notify the commission and the employee of his intention to discontinue, suspend or reduce payments and the reason therefor.* * &'' An interpretation of the effect this statute fact situation similar to the instant case is found in Carpenter v. Globe Indemnity Co., 65 R.I. 194, 14 A.2d 235, 240. There the carrier terminated compensation payments to an injured workman on the basis of a doctor's report which stated claimant was able to return to work. Claimant denied receiving notice of the termina- tion of benefits and it was clear the Workers' Compensation Commission had received no such notice. The court found the unilateral termination ineffective noting: "9; * * In our opinion, a finding that such disability has ended or diminished can be reached only by a supplemental agreement, also approved by the director of labor * Jc **'I A more recent case Raymond v. B.I.F. Industries, Inc., 112 R.I. 192, 308 A.2d 820 is in accord. It is clear Rhode Island courts interpret their statute as meaning the employer or his insurer may not unilaterally terminate workers' compensation benefits. Further, if the employer does attempt to unilaterally terminate the payment of benefits such attempted termination is ineffective. The employer remains liable for the payment of benefits until the termination is accomplished by following the statutory notice provision. The cause is remanded to the Workers'. Compensation Court with instructions to direct payments to claimant for the period October 3, 1973 to October 28, 1975. With that exception,the decision of the Workers' Compensation Court is affirmed. We Concur: Chief Justice ll
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