                                   No. 8 5 - 1 3 8
               IN   THE SUPREME COURT OF THE STATE OF MONTANA
                                        1985




YOUNG MOTOR. COMPANY I
                 Employer,
         and
FEDERATED MUTUAL INSURANCE,
                 Insurer,
                 Petitioners and Respondents,


DIVISION OF WORKERS' COMPENSATION,
STATE OF MONTANA,
                 Respondents and Appellants.




APPEAL FR.OM: Workers' Compensa.tion Court, The Honorable Timothy
              Reardon, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                    Steven J. Shapiro, Chief Legal Counsel, Workers' Comp.
                    Division, Helena, Montana

         For Respondent:
                                           TI
                               I   M-
                                    ,
                    Robert Carlson, Butte, Montana



                                        Submitted on Briefs: Sept. 12, 1 9 8 5
                                                     Decided: December 5, 1985

               - 5 %9@5
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

        This is an appeal from an order of the Montana Workersf
Compei~sation Court relieving the                   insurer of liability to
Rebecca Campbell Holmberg for the sum necessary to bring the
total amount to which she is entitled to the sum she would
have received without the reduction of benefits granted by
the     Social     Security         Act,      and     orderina     the     Workers'
Compensation Division to assume liability for the benefjts
which no longer belong to the insurer.                  We affirm.
        Raymond Campbell injured his back January 8,                             1974,
whi1.e working         for    his    employer, Young Motor               Company, in
Anaconda, Montana.               Surgery and physical therapy did not
relieve the pain.            He became depressed and drank alcohol for
pain    relief.        In     1976     he    worked    for     another employer.
January 10, 1979, he committed suicide after his wife and
children left him.            The Workers' Compensation Court awarded
benefits    to     the       widow,       Rebecca     Campbell,     now     Rebecca
Holmberg,       finding      a   causal      connection        between    Ra.ymondls
industrial injury in 1974 and his death in 1979.                         This Court
affirmed in Campbell v. Young Motor Company and Federated
Mutual Insurance          (Mont. 1984), 684 P.2d                1101, 41 St.Rep.
1218.     Following this decision, Federa.ted Mutual Insurance
advised the Division of Workers ' compensation (Division) of
its     position       that      the      Division      wa.s    liable      to    the
beneficiaries for all past due and future benefits pursuant
to 5 92-704.2, R.C.M.            (1947).      The Division denied liability
for these benefits.                 The     insurer began       paying past and
present benefits September 25, 1984, and subsequently filed a
petition    for declaratory               judgment seeking indemnification
against the Division.            The Division filed a motion to dismiss
and the insurer then filed a motion for summary judgment.
The    motion     to   dismiss       was     denied, summary        judgment was
granted, and          the     order above was           issued.            The Division
appeals.
       The Division raises three issues:
          (1) Whether the Workers' Compensation Court erred in
granting the insurer's motion for summary judgment?
          (2)   Whether the Workers' Compensation Court erred in
finding the Division of Workers' Compensation liable for
benefits        to    Rebecca     Campbell         Holmberg        under    §    92-704.2,
R.C.M.?
          (3) Whether            the     i-nsurer's          claim      against          the
respondents          should      be    dismissed       as     a   violation       of     due
process?
         Summary judgment is granted when there are no issues of
material fact to be decided in the case.                          Rule 56, M.R.Civ.P.
and Hollinger v. McMichael I1978), 177 Mont. 144, 580 P.2d
927.      The facts of this case have not changed sirice it was
heard by the Court in Campbell v. Young Motor Company, supra.
Because there is no issue of material fact, summary judgment
properly was granted.
       The outcome of the case turns on the construction of
statutes and their applicability to the facts.                                  The legal
issue is whether S 92-704.2, R.C.M.                     (1947) (Chapter 20, Laws
of 1974) applies in this case and requires the Division to
indemnify the insurer for the benefits it paid to Raymond
Campbell's beneficiaries.                The Division argues this Court has
held     repeatedly         it    is    not   bound      by       the   lower         court's
determination on legal issues, citing Solheim v. Tom Davis
Ranch (Mont. 1984), 677 P.2d 1034, 41 St.Rep. 326; Carlson v.
Cain (Mont. 1983), 664 P.2d                   913, 40 St.Rep.           865; Sharp v.
Hoerner Waldorf Co. (1978), 178 Mont. 419, 584 P.2d 1298.                                 We
agree.          Our    interpretation             of   the    statutes          and    their
application to the facts of this case is that of the Worlters'
Compensation Court.               The statutes in effect on the date of
the injury are controlling.                       Iverson v. Argonaut Insurance
                                              3
CO.       (1982), 198 Mont. 340, 645 P.2d          1366.     The controlling
statutes are 5 92-704.2, R.C.M.             (1947) and 5 39-71-721 (I),
MCA   .
           In 1973, the Montana Legislature enacted Chapter 202,
Laws of          1973, which provided      for 100% offset of         social
security benefits against Workers' Compensation benefits to
the beneficiaries of deceased workers.               Chapter 202 provided
in pertinent part:
                 In cases where it is determined that
                 periodic benefits granted by the Social
                 Security Act, 42 U.S.C. 301 (1935), are
                 payable because of the injury, the weekly
                 benefits payable under this section shall
                 be reduced by the amount of the federal
                 periodic benefits for such week.
The offset was eliminated by the legislature in 1974, Chapter
270, Laws          of   1974, and    S 92-704.2,     R.C.M.,     (1947) was
enacted:
                 The   provisions    of  this  act   apply
                 prospectively    only.     However,   the
                 division shall pay to any widow, widower
                 or beneficiary who did or shall become
                 eligible for compensa.tion for injury
                 causing death after June 30, 1973, and
                 before July 1, 1974, such sum or sums
                 necessary to bring the total amount of
                 compensation paid or to be paid as long
                 as such person has, or remains eligible
                 for compensation, to the amount such
                 person would have received without the
                 reduction for benefits granted by the
                 Social Security Act. The division shall
                 pay such sums in a lump sum as to
                 compensation periods past and bi-weekly
                 as to compensation to become due and from
                 a special fund appropriated for this
                 purpose.
Although this statute was not recodified in the change over
from       the   Revised   Codes    of   Montana    to     the Montana   Code
Annotated, it was not repealed.            In this case it must be read
with S 39-71-721 (I), MCA:
                 Compensation   for    injury   causing
                 death. (1) If an injured employee dies
                 and the injury was the proximate cause
                 of such death, then the beneficiary of
                 the deceased, as the case may be, is
                 entitled to the same compensation as
                 though the death occurred immediately
                 following the injury, but the period
                 during which the death benefit is paid
            shall be reduced by the period during or
            for which compensation was paid for the
            injury.
       Section      92-704.2,      R.C.M.,         (1947),     includes       the
provision     that     a   beneficiary         becomes         eligible       for
compensation if an injury causing death occurred between June
30, 1973, and July 1, 1974.          The question facing the Court is
whether     the     statute     applies       to     benefits         paid    the
beneficiaries of workers who died between June 30, 1973, and
July 1, 1974, as the Division argues, or whether it applies
to workers whose injury in that time frame is the proximate
cause of their subsequent death.
       The Division argues the statute applies to benefits for
beneficiaries and not for the workers themselves. Because the
worker, Mr. Campbell, was alive during this period there were
no eligible beneficiaries.         This argument is unsound.
       Eligibility and entitlement are not the same.                         The
legislature has fixed the date of injury as the point in time
when compensation benefits and beneficiaries are determined.
A beneficiary becomes eligible for benefits when an injury
causing death occurs between June 30, 1973, and July 1, 1974,
pursuant to    $   92-704.2 R.C.M.        (1947).    When this section is
read   with    §   39-71-721(1),     MCA,     the    beneficiary        becomes
entitled to the benefits for which she is eligible as though
the death occurred immediately following the injury, because
the injury was the proximate cause of the death.                             This
section entitles the beneficiaries to benefits at the time of
the injury.
       Mrs. Holmberg became eligible for compensation on the
date of her husband's injury, January 8, 1974, because the
injury was within the time               frame in S 92-704.2,           R.C.M.,
(1947) .    She likewise would have been eligible had the death
occurred    then.      Because     Mr.     Campbell's        injury    was   the
proximate cause of his death, she is entitled to compensation
as though the death occurred immediately following the injury
                                      5
pursuant to S 39-71-721, MCA. Clearly, had the injury not
occurred within the statutory time frame,              $   92-704.2 R.C.M.
(1947) would not apply.               Any   industrial injury occurring
between       June   30,      1973, and   July   1, 1974, which       is the
proximate cause of death is covered by S 92-704.2, R.C.M.,
(1947)    .
         The Division's lack of due process argument is without
merit.        The rules of the Workers' Compensation Court provide
that the Division is served with a copy of the petition for
hearing.       The Division had notice of the beneficiary's claim
in October, 1979.             Further, it is responsible for enforcing
the Workers' Compensation laws of this state and clearly knew
or should have known of the possible effects of                 $   92-704.2,
R.C.M.,       (1947).    It had adequate opportunity to be heard on
this question and has not suffered deprivation of any liberty
or property right.
         The    order      of   the   Workers'   Compensation       Court   is
a£firmed.




We concur:              JQ"




Justices
