BYRD v RAMSEY ENGINEERING

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No. 84-517 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 KENNETH BYRD, Claimant and Appellant, -vsRAMSEY ENGINEERING, Employer, and AMERICAN HOME ASSURANCE CO., Defendant and Respondent. APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Keefer, Roybal, Hanson, Stacey & Jarussi; Neil S. Keefer argued, Billings, Montana For Respondent : Herndon, Harper, & Munro; James Edmiston argued, Billings, Montana Submitted: Decided: Filed: MaY 2 3 1 1935 July 2 , 1 9 8 5 J ~ L . 1985 2 -- P Clerk Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. Kenneth Byrd, appellant, filed a petition in Workers' Compensation Court to resolve a dispute over his disability benefits. The matter was heard by a court-appointed Hearing Examiner, James P. Harrington, who conducted the hearing, considered the evidence, and submitted findings of fact and conclusions of law for consideration by the court. The Workers' Compensation Court considered the record and findings of fact and conclusions of law of the hearing examiner and entered an order and judgment on November 7, 1984. Mr. Byrd appeals this judgment. Appellant was injured on August 18, 1976, when he fell from the cab of his truck and twisted his knee. Since then, appellant has had five operations on his knee and may require a total knee replacement in the future. At the time of his injury, appellant was employed in construction as a truck driver and made $8.10 per hour under a Teamsters' Labor Agreement. old He has tried to return to his occupation, but has been unable to because of pain. Since returning to the labor market, appellant's income has been at the minimum wage level. In addition he has been paid permanent partial benefits of $81.00 per week since August 2, 1983. The Workers' Compensation Court in its judgment of November 7, 1984, awarded appellant 200 weeks of permanent partial benefits S 39-71-705, MCA. under the specified injury statute, The court ordered $3,150.00 of the bene- fits to be paid in a lump sum to pay some of appellant's pressing debts. Appellant appeals the Workers' judgment on the following issues: Compensation Court's 1. Whether the Workers' Compensation Court erred in awarding S; 200 weeks of permanent partial disability under 39-71-705, MCA, instead of 500 weeks under $ 39-71-703, MCA, on the basis that appellant's back condition and ulcerative proctitis are causally related to his knee injury. 2. Whether appellant's permanent partial award should have all been paid in a lump sum to meet a balloon payment due on his home. Our standard of review of decisions of the Workers' Compensation Court is set forth in Steffes v. 93 Leasing Company (1978), 1 7 Mont. 83, 86, 580 P.2d 450, 452, in which .7 it was held: "Our function in reviewing a decision of the Workers' Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that Court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Work~rs' Compensation Court, this Court cannot overturn the decision. Bond - -v. St. Regis Paper Co., (1977) Mont., 571 P.2d 372, 34 St.Rep. 1237. ~n :s b i v. Anaconda Aluminum Co. (1978), Mont., 575 P.2d 6 7 35 St.Rep. 213." The Workers' Compensation Court found that appellant failed to prove that his ulcerative proctitis was caused or aggravated by his knee injury. There is substantial evidence in the record to support this finding. Dr. Walton performed three of the operations on appellant's knee. testified injury that he and Dr. Wal-ton found no relationship between the knee appellant's colitis condition. (Dr. Walton's deposition March 5, 1984, p. 21.) Dr. Korb, a specialist in intestinal- diseases, testified that the cause of the appellant's ulcerative proctitis condi- tion was not known and he could not say "to a reasonable degree of medical certainty" that stress from appellant's knee injury caused the intestinal problems. (Dr. Korb's deposition p. 30.) In fact the great weight of the evidence supports the Workers ' Compensation Court finding that the evidence fails to establish a causal relationship between the appellant's ulcerative proctitis and the industrial injury. We must affirm. There is no medical evidence that appellant has a back problem. The Workers' Compensation Court did not discuss it and we find no evidence to support appellant's argument that he is additionally disabled by this back problem. We affirm the Workers' Compensation Court finding that appellant is entitled to 200 weeks permanent partial disability pursuant to 5 39-71-705, MCA. Lump Sum The Workers' Compensation Court ordered that appellant was to receive $3,150.00 of his disability payments in a lump sum and the rest was to be paid at the rate of $81.00 per week. Appellant asked that the entire award be paid in a lump sum to meet a $25,000.00 balloon payment on a home loan he obtained in anticipation of his disability award. The Court found that appellant was not entitled to a lump sum advance to pay a house loan intentionally incurred in anticipation of a lump sum award. The law in !!lantana on lump sum awards is stated in Willoughby v. Genera1 Accident, Fire and Life (1980), 187 Mont. 253, 256, 609 P.2d 700, 701, as follows: "The general rule concerning the award or denial of lump sum settlements under the Workers' Compensation Act is well settled in this state. Lump sum settlements are only granted in exceptional circumstances. Where the best interests of the claimant are generally served by paying compensation in regular periodic installments, the conversion of benefits to a lump sum settlement has been recognized as the exception rather than the rule. Utick v. U t i c k ( S t a t e Comp. I n s . Fund) ( 1 9 7 9 ) , Mont., 593 P.2d 739, 7 4 1 , 36 S t . R e p . 799, 801; Kuehn v . N a t . F a r m e r s Union Co. ( 1 9 7 4 ) , 164 Mont. 303, 3 0 7 , 521 P.2d 921, 923; Legowik v . Montgomery Ward ( 1 9 7 1 ) , 1 5 7 Mont. 436, 440, 486 P.2d 8 6 7 , 869; K e n t v. S i e v e r t ( 1 9 7 1 ) , 158 Mont. 7 9 , 8 1 , 489 P.2d 1 0 4 , 105. " The c o u r t g o e s on t o s a y : "Lump sum s e t t l e m e n t s a r e o n l y is 'outstanding indebtedness,' where ' t h e b e s t i n t e r e s t s o f f a m i l y and t h e g e n e r a 1 p u b l i c g r a n t e d where t h e r e 'pressing need,' o r t h e claimant, h i s w i l l be served.'" I n t h i s c a s e , w e a r e a s k e d t o review the W o r k e r s ' pensation award of a partial rather than total lump Where w e h a v e c o n s i d e r e d t h i s i s s u e i n o t h e r c a s e s , w e sum. have Court Com- stated that the decision t o award o r deny a lump sum s e t t l e m e n t w i l l n o t b e i n t e r f e r e d w i t h on a p p e a l u n l e s s t h e r e h a s been a n a b u s e o f d i s c r e t i o n . supra. Willoughby, s u p r a . , Utick, The f i n d i n g s o f t h e l o w e r t r i b u n a l o r b o a r d w i l l b e presumed correct evidence. The and affirmed decision w i l l evidence c l e a r l y preponderates if be supported reversed, a g a i n s t it. by substantial however, Legowik, W e have s t u d i e d t h e evidence i n t h i s c a s e . if the supra. Appellant t e s t i f i e d t h a t he purchased a house f o r h i s family i n a n t i c i p a t i o n o f h i s Workers' $25,000.00 by Compensation a w a r d . 1, 1984 t o make February A p p e l l a n t needed a b a l l o o n payment. A p p e l l a n t assumed h e would r e c e i v e a t l e a s t $ 2 5 , 0 0 0 . 0 0 Workers' Compensation, from b u t when h e d i d n o t he had t o b o r r o w t h e money from W e s t e r n S t a t e Rank w i t h t h e u n d e r s t a n d i n g t h a t a p p e l l a n t would e a r m a r k t h e p r o c e e d s o f h i s W o r k e r s ' s a t i o n c a s e t o repay t h e loan. i s s h o r t term, at a Compen- The W e s t e r n S t a t e Rank l o a n 1 5 % i n t e r e s t r a t e and m u s t b e p a i d as soon a s p o s s i b l e . Clearly, finances. appellant has made some mistakes with his W e do n o t e n c o u r a g e t h e i n c u r r i n g of a d e b t i n a n t i c i p a t i o n o f a n award t h a t may n o t come. But t h e d e b t h a s been i n c u r r e d and t h e b o t t o m l i n e i s t h a t a p p e l l a n t w i l l l o s e his house he c a n n o t make a substantial payment on his I t i s a n a b u s e o f d i s c r e t i o n t o f o r c e a man t o l o s e 1.oan. his if home practice simply of because incurring a w e d o n o t want debt in to encourage anticipation of lump the sum The e v i d e n c e i n d i c a t e s t h a t t h e r e i s a n " o u t s t a n d i n g awards. indebtedness", that appellant has demonstrated a "pressing n e e d " f o r t h e lump sum, and t h e b e s t i n t e r e s t s o f t h e a p p e l l a n t and h i s Appellant f a m i l y wil.1 b e s e r v e d by a w a r d i n g a lump sum. s h o u l d r e c e i v e t h e r e m a i n d e r o f h i s 2 0 0 weeks o f b e n e f i t s i n a lump sum. Although appellant the lump anticipated, sum award w i l l hopefully not it w i l l be be as large as sufficient to a l l o w him t o r e f i n a n c e h i s home. W e remand t o t h e Workers' tions to enter judgment in Compensation C o u r t w i t h d i r e c accordance ,; A with this opinion.

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