                                                 No.    86-74

                 I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                    1986




ROBERT H .     BURKLAND,

                    C l a i m a n t and A p p e l l a n t ,

         -vs-
COP CONSTRUCTION,           Employer,

         and

STATE COMPENSATION INSURANCE FUND,

                     D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:         T h e Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e
                     T i m o t h y R e a r d o n , Judge p r e s i d i n g .


COUNSEL OF RECORD:


         For A p p e l l a n t :

                     Nye & Meyer;           J e r r o l d L. N y e , B i l l i n g s ,    Montana


         F o r Respondent:

                     C r o w l e y Law F i r m ; W i l l i a m J. M a t t i x , R i l l i n g s ,
                     Montana




                                                     S u b m i t t e d on B r i e f s :   Oct.   23,   1986

                                                        Decided:          November 2 5 , 1 9 8 6



Filed:    H o V 2 5 4986




                                                    Clerk
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.

         Claimant, Robert    H.    Burkland       (Burkland) appeals the
decision of the Workers' Compensation Judge to deny claimant
an   award of     costs and       attorney's fees.        We    affirm the
decision of the lower court.
         Burkland. fractured the neck of his left femur on April
     ,
1,   1983,     while   employed      by   COP       Construction.       COP

Construction's insurer, the State Compensation Insurance Fund
(State Fund) , agreed the injury was compensable.                Temporary
total disability benefits at the statutory rate of $254.93
per week were paid by State Fund from April 18, 1983, until
March 19, 1985.
         Burkland achieved maximum medical healing by March 15,
1984.       At that time, Burkland's physician determined his
permanent physical impairment rating to be 25%.                     After a
~e~tember
        4, 1984, visit, Burkland's physician determined
that Burkland's leg had regained 90           -    95% of its musculature
strength and that there was a very low probability of future
difficulties.      Burkland was therefore released to return t-o
work as a truck driver.
         On March 19, 1985, the State Fund converted Burkland's
temporary total disability benefits                to permanent partial
disability benefits of $131.50 per week.               Burkland expressed
apprehension      about     competing     with       younger,    healthier
individuals for truck driver positions.               He determined that
his ability to support himself would improve if he owned
either a home or his own truck.                   Negotiations were thus
commenced with the State Fund for a lump-sum settlement.
     Burkland initially suggested $45,000, a figure based on
the temporary total disability benefits rate rather than the
permanent partial disability rate.            The State Fund countered
with    an    initial      offer   of    $16,437.50   as    a    "compromise
settlement."         That figure represents the rate of $131.50 per
week over 500 weeks, rather than the scheduled term of 300
weeks for a leg, diminished by 25%. Subsequent to that offer,
the State Fund made a lump-sum payment of $6,500 to Burkland
and increased its settlement offer to $19,200, including the
$6,500.
       Burkland refused the offer and filed a petition for
hearing with the Workers' Compensation Court requesting the
Court to find and order the following:
       1.    That Burkland suffered a compensable injury;
       2.    That Burkland has been totally disabled since the
date of      that    injury and will remain so until obtaining
employment;
       3.    That Burkland's earning capacity has been impaired,
resulting in a permanent partial disability;
       4.     That    the    State Fund     is   liable    for Burkland's
injuries;
       5.    That Burkland shall receive a lump-sum settlement;
and
       6.    That Burkland shall receive from the State Fund his
reasonable attorney's fees and costs.


       Thereafter, on April 15, 1985, Burkland started driving
truck again, part-time.            He was still employed as a truck
driver and earning approximately $200 a week at the time of
the hearing on his petition.            The hearing consisted primarily
of testimony from Burkland and rehabilitation and vocational
counselors      as    to    Burkland's     prospects       for   employment
comparable in earnings to his previous employment at COP
Construction.
       At the close of the hearing, both parties were ordered
to submit proposed              findings and conclusions to the lower
court.       From those documents and accompanying briefs, it is
clear       that    both      parties    agree      Burkland   is    entitled       to
benefits of $131.50 per week.                  The controversy centers around
the number of weekly payments to which Burkland is entitled.
Burkland contends he is entitled to the statutory maximum of
300 weeks.          See S$      39-71-705 and -706, MCA.              State Fund
contends Burkland is entitled to at least 75 weeks of $131.50
per week benefits.               Then, at that point, the State Fund
requests the right to adjust Burkland's benefit rate to more
accurately reflect his actual diminution in earnings.
       In addition, Burkland, in his proposed                       findings and
conclusions, contends that because the law at that point in
time     allowed        the     State        Fund   to   reduce     any     lump-sum
entitlement to present value, a lump-sum award would serve no
useful purpose to Burkland and should be denied.
       The    Workers '        Compensation         ,Judge found     that     "   [t]he
parties' proposed             findings substantially limit the issues
before the court."               He then stated that Burkland is not
entitled      to    a      lump-sum; that           claimant's proper       current
benefit      rate    is     $131.50     per week; and that the maximum
duration      of    those benefits             is   300 weeks.       Having       thus
eliminated several of the issues before him, the Workers'
Compensation Judge stated the two remaining issues to be:
       1. Is the State Fund entitled to a periodic update in
Burkland's income status so that the State Fund may determine
whether       an    adjustment          of    claimant's    benefit       rate      is
appropriate?
       2.     Is Burkland entitled to attorney's fees and costs?
       In his order, the Workers' Compensation Judge granted
the State Fund leave to petition the court one year after the
date of trial for a review of claimant's earnings and awarded.
Burkland    attorney's     fees    and   costs.       The    State   Fund
petitioned for rehearing on the issue of attorney's fees and
costs.     Upon review, the judge reversed his earlier decision
and refused to grant attorney's fees and costs to Burkland.
      The sole issue on appeal is whether Burkland is entitled
to attorney's fees under S          39-71-612, MCA.         That section
states in pertinent part:
      Costs and attorneys' fees that may be assessed
      against an employer or insurer - by workers'
      compensation judge. (1) If an employer or insurer
      pays or tenders payment of compensation under
      chapter 71 or 72 of this title but controversy
      relates to the amount of compensation due, the case
      is brought before the workers ' compensation judge
      for adjudication of the controversy, and the award
      granted by the judge is greater than the amount
      paid or tendered by the employer or insurer, a
      reasonable attorney's fee as established by the
      workers' compensation judge if the case has gone to
      a hearing may be awarded by the judge in addition
      to the amount of compensation.
      Burkland contends that the sum awarded him by the court,
$39,450     ($131.50   x   300    weeks),   exceeds    the    compromise
settlement offer of $19,200 made by the State Fund prior to
trial.    Therefore, "the award granted by t.he judge is greater
than the amount    . ..     tendered by the   . ..     insurer" and he
is entitled to attorney's fees.
     The State Fund contends, on the other hand, that the
$19,200 was     an offer for a        lump-sum settlement made         in
response to Burkland's initial request for a lump-sum payment
of   $45,000.     Because    Burkland's     request for a       lump-sum
settlement was dropped, the award granted by the judge h3.d
nothing to do with the original lump-sum settlement offer.
Claimant walked out of court with nothing more than with what
he had walked in, $131.50 a week for a maximum of 300 weeks.
Because Rurkland's award was not greater than what the State
Fund had previously paid, there is no ground for an award of
attorney's fees.          The Workers' Compensation Judge agreed with
the State Fund, as do we.
        We     find     Burkland's       argument     that      the      pre-trial
settlement offer by the State Fund was not one for a lump-sum
payment to be without merit.                  Burkland himself started the
pre-trial       settlement       negotiations       because      he     wished   to
purchase       his     own    truck     and/or    trailer       and     become   an
independent truck driver.               The reasons proferred by Burkland
for the       lump-sum payment are identical to the statutory
purpose       of      lump-sum    payments,      to   make      more      probable
claimant's ability to sustain himself.                   See    $   39-71-741(2),
MCA.     In addition, Burkland's first letter to the State Fund
refers to the settlement as a lump-sum payment.                         The State
Fund termed its offer a "compromise settlement," because it
was offered in lieu of going to trial.                   It was still a lump-
sum     settlement,          however,    as    opposed     to       a   structured
settlement.
        Section 39-71-612, MCA, governs the award of attorney's
fees when the claimant prevails in a hearing where the issue
centers around a lump-sum settlement.                     Polich v. Whalen's
O.K.    Tire Warehouse (Mont. 1981), 634 P.2d 1162, 38 St.Rep.
1572.        However, there is no controversy with respect to a
lump-sum payment as Burkland withdrew his request for one.
The award granted Burkland by the Workers' Compensation Judge
is no greater than the weekly benefits paid to Eurkland prior
to the hearing.         There is no basis for an award of attorney's
fees to Burkland.
       The decision of the lower court is affirmed.
We concur:
