                                        NO.       92-235
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                              1992



GLORIA J.       WEAVER,
                       Claimant     and Appellant,
         -vs-
BUTTREY FOOD AND DRUG,
                       Employer/Insurer,           Respondent
                       and Cross-Appellant,




APPEAL FROM:           The Workers'       Compensation    Court,
                       The Honorable       Timothy   Reardon,    Judge          presiding.


COUNSEL OF RECORD:
                For   Appellant:
                       Richard   J.     Martin,       Alexander,      Baucus        & Linnell,
                       Great Falls,      Montana
                For   Respondent:
                       G. Curtis  Drake, Keller,    Reynolds,           Drake,      Stemhagen
                       & Johnson,   Helena,   Montana



                                      Submitted      on Briefs:       September           10,   1992
                                                           Decided:   October       29,      192
Filed:
Justice            John            Conway           Harrison           delivered                  the      Opinion           of      the      Court.


          This           is        an appeal                from      the         Workers'               Compensation                    Court,        the
Honorable                Timothy               W. Reardon                   presiding.                    Claimant               Gloria           Weaver

(Weaver)             appeals              the       Workers           ' Compensation                     Court        judgment              that       she

is     not         entitled               to        past        and         present               temporary              total           disability
benefits             for        certain              injuries           incurred                  during        the        course          and scope

of     her       employment                    at      Buttrey              Food        and        Drug.           Respondent                 Buttrey

Food         and        Drug          (Buttrey)               cross-appeals                        the      Workers'                Compensation
Court        judgment                 that      Weaver's              back            condition            is     causally               related            to

her     work         injury.                 We affirm.

          Weaver               was        injured               on     June            15,        1986,          while           working              as     a
checker            at        the      Buttrey           store          in     Cut        Bank,          Montana.             At      the      time          of

the     accident                she was a 46-year                           old       high        school         graduate            and married

with         two        dependent                   children.                 She        had        been        working             at      the       same
Buttrey            store            for       approximately                       twenty-one               years.

          The accident                       occurred            when a customer                         pushed          a cart          piled        high
with       large             canned           goods          through              Weaver's              checkstand.                  When Weaver

opened         the            front          gate       of      the     cart,            the       cans         began        to      tumble           out.

To avoid            being             struck          by a can,              Weaver           jumped          backward              and sideways

with      a twisting                   motion.               As she did                 so,       she felt            a hot         searing           pain

in     her     left            thigh.               She finished                      her      shift,           but      by that            time       two

large         lumps            had        formed            on her           thigh.               Her      supervisor                immediately

took       her          to      a doctor               who diagnosed                        the      injury           as     a hematoma                    and
recommended                    elevation               and ice              packs.

          Weaver               continued               to     work      at the              Buttrey           store         until          September

17,     1986.                By then           her      leg        was bothering                    her         so much that                she took

                                                                                  2
vacation          and then,                on tne        manager's               recommendation,                  a leave           of
absence.               Buttrey's            insurer            paid       benefits            for        temporary          total
disability             from September                 17,       1986 until                April         4,     1987.       During
this     period         Weaver consulted                    Dr. J. W. Bloemendaal,                             an orthopedic
surgeon          in     Great        Falls.              Dr.     Bloemendaal                diagnosed                 a possible
rupture        of the facia                around Weaver's                left      quadriceps                and prescribed
physical         therapy           and exercise                to strengthen                the muscle.                 On March

18,      1987,          Dr.        Bloemendaal                 wrote       to       a      Workers'              Compensation
adjuster,             stating        that     in his           opinion       Weaver could                    return      to work.
Buttrey        already            had terminated               her employment,                   however,         because the
six-month             disability              leave         allowed          by      her          union         contract          had
expired.          Weaver never                returned           to the Buttrey                   store,         which burned
down in November 1987,                             though       she did           apply          for     work         at the      new
store      in 1988.
         Weaver considered                     Dr.       Bloemendaal's                  letter          a "release,"              but
she did not feel                   that      she could           return          to work because her leg was
weak and she still                        had lumps on her                   thigh          and numbness down the
side      of     her        leg     and in         her      foot.          Buttrey's               insurer            refused       to
extend her temporary                       total     disability             benefits,              however,            and after
a hearing              in     July         1987,      the       Workers'            Compensation                 Court          later
denied         temporary           total      disability                benefits          on the grounds                 that     her
leg     injury         had reached             maximum healing                    on March 18, 1987.
         On June 4, 1987, Weaver's                              injured          leg "gave out"                 while      she was
climbing          a bleacher               at a Little              League game.                    She fell,            injuring
her left         knee and reinjuring                        her left             thigh.           Dr.        Bloemendaal           saw
her     two weeks later.                       In his           July      1989 deposition,                      he testified

                                                                    3
that         she             would           not              have                 fallen                   "if           she          had           had            a         good            strong

quadriceps"                        and       that                   even              after                  the           June            4         accident                       she        still

should                 be        able        to          work                 if           she            kept              that             muscle                     "in           tone             and

function."                          Weaver                   continued                          to          experience                         pain,                  weakness,                        and

numbness                    in    her       leg,              and          at         the           time             of      trial              in        December                     1991            she

still         limped,                    found           it         difficult                          to          drive             a car,               and           had          curtailed

her       homemaking                       and         recreational                                   activities.

             In        August              1988,                  Weaver                  petitioned                          the          Workers'                       Compensation

Court         for            a determination                                  of       permanent                           partial                disability                           benefits

under             g 39-71-703,                          MCA            (1985).                         At          the        hearing                     in     November                      1988,

the       former                 manager                 of          the            Cut             Bank             Buttrey                   store             testified                         that

Weaver             had           worked                for          him             for          nearly                    ten         years,                  that             she          was          an

"excellent                       employee,"                         and            that              he           would            rehire                 her            if         she        had           a

release                     to     return                    to        work                    and           he           had          a        position                         available.

Weaver's                    vocational                   rehabilitation                                           counselor                  testified                         that           Weaver

would             be        physically                       capable                      of         half-time                       work            as        a checker.                              The

court         found               that       Weaver                   was           permanently                             partially                      disabled                     but        held

that         "measurement                         of         her        post-injury                                 earning                capacity                     is       impossible

because                of        [Weaver's]                         failure                    to         introduce                     evidence                        necessary                      for

such         determination."

             Weaver                  interpreted                                the             court's                       order                  as         a             request                  for

additional                       proof            of          disability.                                     Accordingly,                             she              consulted                      Dr.

Lawrence                     Iwersen             of           the          Kalispell                              Orthopedic                      Clinic                  in        May         1989,

without                 seeking                  approval                           from              Buttrey's                        insurer.                               Dr.         Iwersen

recommended                        "nerve              testing"                       and            referred                    her         to        Dr.          John              Stephens,

a rehabilitation                                 specialist                           in        Kalispell.                             Dr.           Stephens                       saw       Weaver


                                                                                                      4
twice      in June 1989,               without         approval              from     Buttrey's         insurer.            He
ordered        magnetic         resonance           imaging          (MFZ), which             showed a "moderate
disk     bulge"         in     her     lower        back,     and conducted                   an electromyograph
study      (EMG), which               showed no evidence                      of radiculopathy,                  or nerve
root     damage.         Despite         the negative               EMG results,              Dr.      Stephens     wrote
in his        notes     for     June 13, 1989 that                   "it       is certainly             possible         that
her work-related                injury         resulted        in the back problem                      as well         as it
is possible           that      the alteration                in her gait              has aggravated              this."
         Dr. Stephens               referred        Weaver to Dr. James Mahnke, a Kalispell
neurologist.             Dr. Mahnke performed                       a complete          examination             in August
1989 and diagnosed                   a "structural            disease           of the lower            spine,"     which
"may respond             only        to surgery."              Weaver learned                  of this          diagnosis
for     the first        time        when she saw Dr. Stephens                         again        in May 1990.            In
his     notes     for        that     consultation,               Dr.        Stephens         stated      that     Weaver
needed further                evaluation            and treatment,                  adding,       "I   would      feel      on
a more probable                than      not basis           that       her problem            is related          to her
work-related            injury."
         In     August          1990,      Dr.       Stephens              referred           Weaver       to     another
neurologist,             Dr.        Stephanie         Herder            in     Great      Falls.           Dr.     Herder
recommended nerve                   conduction         studies           and another            EMG, "in         order      to
definitively            rule        out or rule        in surgery."                   Dr. Stephens          did repeat
the     EMG in          January          1991 and again                      found     no clear           evidence          of
radiculopathy.
         In the meantime,                Weaver was working                     at the tavern            that      she and
her husband             had bought             in    1985.          By 1988 she had taken                        over     the
bookkeeping           function,           replacing           a part           time    employee          who had been

                                                              5
paid      $6.50            an hour.                 Thiswork                      occupied             Weaver         for        three             hours          each
weekday              morning.                    During               the     summer           of       1988,          she           began          to      assume

afternoon                  and      evening                 bartending                     duties             as      well.               The            bar       was

equipped              with         a stool                 at     each            end so that                 she could                 sit         down when

not      waiting             on customers.                             By 1989 Weaver                    had taken                   over          the      duties

of      three             part-time                 bartenders,                      and       by       the         time         of     the          trial           in

December              1991,         she and her husband                                    were        doing         all        the     work          required

to      run        the      business,                 seven             days         a week.
              In     September                   1991,            the         Weavers             sold         the         tavern             to      Weaver's

sister             and her          husband.                     At         her     deposition                 in     October               1991,           Weaver

said          that         the          "anticipated                         arrangement"                     for          running             the          tavern
would          include             herself                and her              husband,                "mainly             to    give          us a way to

earn          a living              until            things                 [her      Workers'                Compensation                         claim]          are

resolved."                   At      the          time           of     the        trial          in     December                1991,             Weaver          and

her      husband              were          paying                themselves,                  as they                had        in      the          past,          by
"taking              cash         out       of      the          bar."

          Weaver              petitioned                        the          Workers'               Compensation                      Court              for       the

third              time      in      May           1991,              seeking              reinstatement                        of     her          temporary

total          disability                 benefits                    retroactively                     and prospectively,                                as well

as medical                  benefits,                     costs         and attorney's                        fees.              The basis                   of    her

claim          was her             lower           back           condition,                which          had not               been          reported              as

an injury                 at the          time            of her             accident             at the            Buttrey             store             in      1986
and       therefore                     had         not          been             considered               when            her         benefits                   were

terminated                  on April                4,          1987.

              The         court          held             that              although           Weaver               was         not           entitled               to

temporary                   total                disability                        benefits,                  Buttrey's                  insurer                   was


                                                                                     6
responsible                   for      the        medical           expenses              related             to her             "low      back         pain"
because           Dr.         Stephens              had related                  the     back         pain          to     the         June      15,      1986

injury.                 The         court           found          that          "a      preponderance                           of      the      medical

evidence"               supported                  the     conclusion                  that      Weaver's                  lower          back      injury

was caused                by the              June         15,      1986         accident               or     by the                 change        in      her
gait       due to             her         left       leg        pain.            The          insurer          was held                  liable           only

for        future              medical               bills            for        Weaver's                  lower               back        condition,
however,                because              Weaver             had        not         obtained               its          approval               for       the

examinations                        performed                by     Drs.             Iwersen,                Stephens,                   Mahnke,            and

Herder.                  The           court             also       found              that        because                     Buttrey            had       not
unreasonably                   refused              payment           of disability                     benefits,                     Weaver       was not

entitled            to        the      20 percent                 penalty              authorized                   by 5 39-71-2907,                        MCA

(1985) .            Weaver             was awarded                  costs            and attorney's                        fees         on the           issue
of     medical            benefits                 only.

           The issues                     on appeal               are:

            (1)          Did        the      Workers'              Compensation                      Court           err         in     finding           that
Weaver's            back            condition                was caused                 by her          1986 work                      injury?

            (2)          Did         the         Workers'           Compensation                     Court               err      in     refusing            to

reinstate               Weaver's                 temporary            total           disability               benefits                  for     injuries

sustained                at      the       Buttrey              store         on June            15,         1986?

            (3)         Did the             Workers'              Compensation                   Court         err         in denying               Weaver

medical            benefits                  for       the        diagnostic                  work       done             on her           lower          back

during            the     1989-91                 period?

            (4)         Is Weaver                 entitled            to     a penalty               for      unreasonably                       withheld

temporary                total            disability               and medical                   benefits?

            (5)          Is         Weaver          entitled                to       reasonable                costs              and      attorney's


                                                                                 7
fees      for    the disability                   issue        as well          as for       the medical                benefits
issue?
                                                                    I
          The first           issue         is      whether             the    Worker's           Compensation                  Court
erred      in finding             that      Weaver's              lower       back injury           was caused by her
accident         at the Buttrey                  store      in June 1986.                  We will            not substitute
our     judgment            for      that        of      the       Workers'          Compensation                 Court          when
substantial,            credible            evidence              supports         the court's                conclusion,           as
it    does here.              McIntyre            v.      Glen Lake Irrigation                          Dist.      (1991),
813 P.2d 451,            455, 48 St.Rep.                       579, 581; Anderson                   v. Hammer (1992),
826 P.2d 931,               934,         49 St.Rep.            165,        167.
          The immediate,                  visible         consequences               of Weaver's                accident          had
to     do with         her        left      leg.           Because            she told            the     physicians              who
examined her during                      the next         several             months that          her leg hurt,                 they
focussed         exclusively               on the leg.                   Not until         May 1989,            after       Weaver
had experienced                   pain      and weakness                 in her leg          for        three      years,         did
a doctor         suspect           that         she might           have a back problem.                         The medical
evidence         accumulated               since       then establishes                    that         she has a damaged
disc      in    her     lower            spine      but     does not              establish             what     caused          this
injury.           It     may have                 been         a pre-existing                 condition                 that      was
aggravated            by the accident                    itself          or by the          fact        that     the pain           in
her left         leg caused her to limp.                                 Whether      it     was caused             or merely
aggravated             by         the       accident,                   however,       it          is      a     compensable
disability.              Belton            v.     Carlson           Transport          (1983),             202 Mont.             384,
386,       658     P.2d           405,      407        ("An         accident          is      comepnsable                  if     the
traumatic             event         or      unusual               strain          aggravates              a     pre-existing

                                                                    8
injury.").                    See Jones            v.      St.         Regis           Paper            Co.         (1981),           196 Mont.              138,
639 P.2d            1140          (claimant               injured                his        back         while           working              as a logger

in     1976        but         was        entitled                to        benefits                    for        subsequent                  disability

caused         by bending                  and          lifting              activities                       in      his      work        as a lumber

grader).                We hold           that          substantial,                        credible                  evidence           supports             the

Worker's                Compensation                      Court's                     award             of         medical              benefits              for

Weaver's            lower           back         condition.

                                                                                 II
            Given          that       Weaver's                 back              injury            is         compensable,                     the        second

question            is        whether            she is            entitled                  to        temporary                total          disability

benefits                for       that        injury.                       To        be      entitled                  to          temporary              total

disability                benefits,              a claimant                      must       meet             the      requirements                   of    5 39-
71-116(19),                    MCA (1985),                  which            defines               temporary                    total          disability

as:

            a condition        resulting                       from an injury    as defined     in this
            chapter     that     results                      in total    loss of wages and exists
            until    the     injured                        worker     is as far     restored    as the
            permanent      character                        of the injuries     will    permit.

To demonstrate                       "total             loss           of        wages,"                a claimant                   must        establish

what        jobs         constitute                her            normal              labor             market              and      prove           complete

inability                 to        perform              the           duties               associated                        with         those           jobs.
Metzger            v.         Chemetron            Corp.               (1984),               212 Mont.                      351,        355,         687     P.2d

1033,        1035.              Here,         Weaver              failed               to     meet            her       burden           of     proving             a

complete                inability             to         perform                 the        jobs             within            her       normal            labor

market.                  She        had       been          working                   for         at          least           three         years           as      a

bookkeeper                and bartender,                          and she had applied                                   for        a job       as checker

in    the     new Cut Bank                    Buttrey               store.                  At     the          trial          in     December             1991,

she stated                that        she thought                      she could                  work             as a checker                  and would

                                                                                  9
"give           it         a good                  try,"              but             that              she          was        waiting                       for        a resolution                                of

her       Workers'                    Compensation                                    claim                  before             applying                      at      the            new         Cut        Bank

IGA        store.                As          the           Workers'                          Compensation                                hearing                     examiner                      put         it,

"[t]he               evidence                      of          her          ability                      to        work             is      overwhelming."

              Weaver                asserts                          that                  she          has             not         been                "gainfully                           employed"

since           her          temporary                         benefits                          were             terminated                        in        March                 1987.              She           is

paid          no          money               as           a     direct                     wage               for            her         work                at      the             tavern,                  she

says,           and             receives                       no      benefits.                                This            Court,                   however,                     has          adopted

the       "economic                      gain"                  standard                         for           determining                             eligibility                           for         total

disability                       benefits.                            Anderson                          v.      Hammer                   (1992),                   826         P.2d          931,           936,

49       St.Rep.                 165,              168.               Under                  the             Workers'                    Compensation                               Act,           "wages"

simply               means               gross                   earnings,                              or         "anything                        of          value                 received                       as

consideration                                for         work               .     . . constituting                                        real            economic                     gain            to      the

employee."                          Scyphers                          v.         H & H Lumber                                   (1989),                      237         Mont.               424,           426,

774        P.2d            393,              394.

              Here,               Weaver                       and              her          husband                      took             a        "draw"                     on       the            tavern

income               to      meet            their                  living                  expenses.                          Weaver's                       contribution                             to      the

effort                that              generated                                this              income                     was          at            least                 equal                to         her

husband's.                        In         her           October                         1991          deposition,                             for          example,                     she         stated

that            she             worked                   in          the              bar               "three                 or         four                nights                  a       week"                  in

addition                   to      her             daily               bookkeeping                                duties,                  and           that             "I         can't             handle

it       by      myself,                      but              my      husband                          is        not          a bookkeeper                               and             he's           not              a

bartender.                        He don't                          like              it         and          he's            not         good."                     Whether                     Weaver's

share           of         the         tavern                    receipts                          is         described                        as        a      "draw"                or         "wages,"

it        has             covered                   her              living                      expenses                       for            at            least              four             years.

Indubitably,                            it          is         "real                  economic                     gain."


                                                                                                             10
         The Workers'                  Compensation                     Court     also         based         its         denial          of
temporary           total        disability              benefits              on its       previous               finding         that
Weaver had reached                     maximum healing                    with        respect       to her leg injury.
That finding            was based on Dr. Bloemendaal's                                     "releasel'              of March 18,
1987.         Weaver argues                  that       Dr.    Bloemendaal's                   opinion           referred          only
to her leg injury,                    that       further          evaluation            and treatment                   was needed
for     the    back          injury           that       was discovered                   in      1989,          and that           she
therefore           has        not       reached           maximum healing                       and        is     entitled              to
temporary           total       disability               benefits.               We do not address                      this      issue
because        we hold                that       Weaver's               earnings          from       the          tavern          alone
disqualified            her       for        those       benefits.
                                                                  III
         Next,         we must decide                    whether              Weaver is          entitled               to medical
benefits         for    the diagnostic                    work done on her back during                                    the 1989-
91 period.              The Workers'                    Compensation              Court          found       that         Buttrey's
insurer        is      not      responsible                for      Weaver's            medical             expenses            during
this       period            because              Weaver           neither             requested                 nor       obtained
authorization                 from       the         insurer            for     her     visits         to        Drs.      Iwersen,
Stephens,           Mahnke and Herder.                                   Rule         24.29.1403,                ARM, requires
authorization                 from      the         insurer         for        changing          a worker's                treating
physician           or referring                 a worker           to a medical                 specialist.                   Carroll
v.     Wells     Fargo          Armored             Service         Corp.         (1989),          240 Mont.               151,     783
P.2d 387.
         Weaver argues                  that         under       Rule         24.29.1403           the       injured            worker
selects        the          initial           treating            physician;              that         Drs.            Iwersen      and
Stephens            were        the          "initial            treating             physicians                 for      her      back

                                                                   11
injury;"                       and         that              under                 §      39-71-704(l),                                   MCA         (1985),                 Buttrey's

insurer              is          required                        to          pay        for          reasonable                             services                   provided              by

those            doctors.                        Further,                       Weaver                   argues,                  because                Drs.           Mahnke             and

Herder             were             neurological                                consultants                            for           Dr.          Stephens,                   Buttrey's

insurer              should                pay          for             their             services                     too.

            Weaver                  did         not,             however,                     consult                    Dr.              Iwersen            about             her        back

problem.                    Her           purpose                      in       calling                  him          was            to      find           support               for      her

Workers'                  Compensation                                 claim,                 for          which                 Dr.          Bloemendaal                        was        the

initial             treating                     physician.                             It      is         undisputed                         that          she         did       not       ask

for        authorization                           to            consult                  Dr.            Iwersen                  or        Dr.       Stephens                  and       that

she         also              did          not              seek                approval                       for             Dr.           Stephens'                   subsequent

referrals                  to        other             doctors.                        We hold                 that              the        Workers'               Compensation

Court            applied                 Rule          24.29.1403                         correctly                        in        denying             medical                benefits

for        the       1989-91                    period                  while             awarding                      future                benefits                 for        medical

expenses                 incurred                      in        compliance                         with             the          rules.

             We distinguish                                 our             holding             here             from            our         holding              in     Chapman                 v.

Research                   Cottrell                         (1991),                    248           Mont.                   353,            811         P.2d            1283.                   In

Chapman,                 the         Workers'                     Compensation                            Court                 denied             medical              benefits                 to

a     claimant                  who          had            consulted                        a neurologist                                  without              authorization

from         her         employer's                          insurer.                        We reversed                               on     the       grounds                 that        the

doctor             designated                      by            the          insurer                as        the            initial               treating                  physician

was        not        selected                     by            the           claimant                    and           had              performed               no          treatment

other             than              to       prescribe                           medication,                             while                the        neurologist                        was

selected                 by         the         claimant                       and        was            the          first               doctor            to     diagnose                 her

injury             correctly.                               Here,                Dr.          Bloemendaal,                                 who        was        considered                      by

Buttrey's                       insurer                     to          be         Weaver's                          initial                  treating                   physician,


                                                                                                    12
treated       Weaver's           leg     extensively                   from       October             1986 through                 June
1987.       His letter           of March 18, 1987 was regarded                                      by both Weaver and
the      insurer          as a "release"                indicating                    that         her        leg     was healed
enough for          her to return               to work.                 Moreover,             Weaver waited                     nearly
two years          after      her       last    visit         to Dr.             Bloemendaal                   to consult              Dr.
Iwersen,          while      the     claimant           in Chapman consulted                                  the    neurologist
within      a month after                her accident.                         We held,            therefore,              that        the
Chapman claimant                 had only        one initial                   treating             physician,             for        whom
the insurer's              authorization              was not required.                            Here,       Weaver changed
her treating              physician,           which     does require                        authorization.
                                                              IV
          Next,     we consider             whether          Weaver is entitled                           to a penalty                 for
unreasonably              withheld          benefits.                  Section             39-71-2907,               MCA (1985),
provides           that      the       Workers'          Compensation                        Court            may increase                   a
claimant's           benefit           by      20 percent                 if     it         finds         that        payment            of
compensation               has      been       unreasonably                     delayed             or        refused            by      an
insurer.            Unreasonableness                  is a question                        of fact,           and we will              not
overturn           the      trial           court's          finding                  if      it         is      supported              by
substantial           evidence.              Milender             v.     Carpenter                 (1987),           230 Mont.           1,
6, 748 P.2d 932,                 935.
          Here,       Weaver           argues         that             Buttrey's              insurer               unreasonably
withheld          payment        of disability                and medical                     benefits              for    her        back
injury.            We disagree.                 Since        it        was not              self-evident                  that        this
injury      was caused by Weaver's                       accident                at Buttrey's                       in June 1986,
and since          the medical              evidence         linking             the injury                   to the accident
was submitted              at least         three       years           after         the accident                   occurred          and

                                                                  13
was somewhat                   equivocal,                   denial             of        the     claim           was not          unreasonable.

We hold,             therefore,                that         substantial                    credible               evidence            supports             the

Workers'              Compensation                     Court's               denial             of     the       20 percent                penalty.

                                                                                   V

           Finally,                 we address                   the         issue         of        costs        and      attorney's                  fees.

Under         5 39-71-611,                    MCA (1985),                     an insurer                   who denies               liability              for

a       claim          that           is       later             adjudged                  compensable                    by        the         Workers'
Compensation                    Court          is      liable                for        reasonable                costs          and       attorney's

fees.            Here,          Buttrey's                  insurer                 has     consistently                    denied              liability

for      Weaver's              back         injury,              which         the       Worker's               Compensation                   Court       and
now this              Court          have       adjudged                 compensable.                           Weaver         argues           that       she

therefore               is     entitled               to      all       costs            and attorney's                      fees       incurred            in
connection                   with      this           claim            for         a back            injury.             The      court            awarded

costs           and       attorney's                    fees           for          litigating                   the      issue           of      medical

benefits               only.
           We held              in     Buckman              v.        Montana             Deaconess                Hospital               (1989),          238

Mont.           516,         521,          776 P.2d              1210,             1213,         that           attorney's             fees          should

not       be awarded                  for       issues                on which             the         claimant            did       not        prevail,

for       the        same           reason          that            an attorney                      would        not      receive              attorney

fees       in        a case          where       he did               not      prevail               on any issue.                   Here,           Weaver

is      not      entitled              to       attorney's                    fees         and costs                   associated               with       the

issue           of      disability                    benefits                because                the         Workers'            Compensation
Court         found          that          she is          not        entitled             to disability                     benefits              at this

time.           Although,                  as the          court         pointed                out,       Weaver         might           be entitled

to      permanent               partial             disability                     benefits                if    she were            to        apply       for

them,         she is           not         entitled              to     attorney's                   fees        on this          issue          now.       At


                                                                                   14
    present,      the      court      has    ~found    only       the    medical         benefits           to    be

    payable.          Therefore,        Weaver    is   entitled         to     costs       and      attorney's

    fees   only    for     that     claim.

           Affirmed        on all      issues.

                                                                    -\~d';-;I:&cc, ( ;~I!.‘ ibid;;: <'j ,/i,;&,   [ )$‘,
                                                                                       Justicd          '

    We c


4




                                                       15
                                      State nf montann
                          QBfficn of (IUerk of the Supreme Mourt
                                         i&ha 54620
                                         406.444-3858


EDSMITH
 CLERK
                                       October 29, 1,992

                                CERTIFICATE        OF SERVICE

   I hereby certify that the following order was sent by United States mail, prepaid, to the
   following named:


   Richard .I. Martin
   ALEXANDER,         BAUCUS   & LINNELL,   P.C.
   P.O. Box 2629
   Great Falls, MT 59403

   G. Curtis Drake
   KELLER, REYNOLDS, DRAKE,
   STERNHAGEN      & JOHNSON. P.C.
   38 South Last Chance Gulch
   Helena, MT 59601

                                                    ED SMITH
                                                    CLERK OF THE SUPREME          COURT
                                                    STATE OF MONTANA  _
