                              NO.    91-191

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991



MARGO PEILE,
                 Petitioner and Appellant,
     -vs-
DEPARTMENT OF HIGHWAYS, STATE OF MONTANA,
STATE COMPENSATION MUTUAL INSURANCE FUND,
                Employer, Defendants and Respondents.



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


COUNSEL OF RECORD:
            For Appellant:
                 D. Patrick McKittrick; McKittrick Law Firm, Great
                 Falls, Montana
            For Respondent:
                 Darcy M. Crum: James, Gray       &   McCafferty, Great
                 Falls, Montana



                               Submitted on Briefs:      August 15, 1991
                                              Decided:   September 17, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    Margo Peile appeals the denial by the Workers' Compensation
Court of her claim for temporary total disability benefits during
retraining.    We reverse and remand.
     The issues are:
     1.     Did the Workers' Compensation Court err in determining
that Peile was not entitled to temporary total disability benefits
while engaged in a course of vocational rehabilitation through the
Department of Social and Rehabilitation Services?
     2.     Did the court err in determining that Peile was not
entitled to the 20 percent penalty pursuant to 5 39-71-2907, MCA
(1985)?
     3.     Did the court err in determining that Peile was not
entitled to costs and attorney fees under 5 39-71-611, MCA (1985)?
     The parties have stipulated to the facts.     Peile suffered an
on-the-job injury while working as a survey aide for the Montana
Department of Highways in Cascade County, Montana, on February 17,
1987.     She injured her wrist while pounding stakes with a hammer
and has been diagnosed as suffering from "overuse syndrome.I'
Peile's employer, the Montana Department of Highways, has accepted
liability for her industrial accident.   It is insured by the State
Compensation Mutual Insurance Fund (State Fund).
     Peile's doctors believe that she cannot return to her prior
position at the Montana Department of Highways but that she can

                                  2
return to a job which does not require overuse of her arm.   She has
been evaluated by a vocational rehabilitation consultant who found
that she is motivated to return to the work force as soon as
possible.   The consultant determined that Peile could perform a
position as a janitor, a central supply worker, or a store laborer,
but that because of her academic and physical limitations, it is
doubtful that she will be able to find employment at wages
comparable to those she has earned before without the benefit of
vocational counseling and a structured job search.
     Peile requested that the State Fund refer her to the Depart-
ment of Social and Rehabilitation Services for vocational rehabili-
tation pursuant to Title 39, Chapter 71, Part 10, MCA (1985). The
State Fund refused to make the referral on the basis that Peile is
employable and not permanently disabled. The Department of Social
and Rehabilitation Services nevertheless certified Peile for
rehabilitation services and has provided those services to her
since September 1988.
     Peile received temporary total disability benefits         from
February 3, 1988, through March 7, 1989.    At that time, she had
achieved maximum healing and was switched to permanent partial
disability benefits.    Peile is not receiving temporary total
benefits while she is undergoing vocational rehabilitation.
     On July 3 , 1990, Peile filed a petition with the Workers'
Compensation Court alleging that she is entitled to temporarytotal

                                 3
disability benefits while undergoing vocational rehabilitation,
under the statutes in effect at the time of her injury.     The court
found that she is not entitled to receive temporary total dis-
ability benefits during retraining because, as Peile's doctor had
approved three jobs he deemed appropriate considering her physical
restrictions, "[tlhere is no necessity for retraining here. 'I    In
addition, the court concluded that a claimant must meet the
requirements of temporary total disability in order to be eligible
to receive that type of benefits during vocational rehabilitation.
A s a result of those rulings, the court concluded that Peile was

not entitled to the 20 percent penalty under 5 39-71-2907, MCA
(1985), or to costs and attorney fees.


     Did the Workers' Compensation Court err in determining that
Peile was not entitled to temporarytotal disability benefits while
engaged in a course of vocational rehabilitation through the
Department o f Social and Rehabilitation Services?
     The law which was in effect at the time of Peile's injury
governs our consideration of this case.       See Buckman v. Montana
Deaconess Hosp. (1986), 224 Mont. 318, 730 P.2d 380, aff'd after
remand, 238 Mont. 516, 776 P.2d       1210.   Section 39-71-1001, MCA
(1985), was in effect at the time of Peile's injury and is
applicable.   It provided:



                                  4
          Referral of disabled workers to department of
          social and rehabilitation services for voca-
          tional rehabilitation.    The division shall
          refer to the department of social and rehabil-
          itation services workers who have become per-
          manently disabled as the result of injuries
          sustained within the scope and course of
          employment by an employer enrolled under the
          Workers' Compensation Act and who, in the
          opinion of the division, can be vocationally
          rehabilitated. The department of social and
          rehabilitation services shall provide for the
          vocational rehabilitation of the injured
          workers under the provision of Title 53,
          chapter 7, parts 1 and 2.
Section 39-71-1003, MCA (1985), also applies to this case:
          Eligibility for benefits under chapter not
          affected--other expenses payable. The eligi-
          bility of any injured worker to receive other
          benefits under the Workers' Compensation Act
          is in no way affected by his entrance upon a
          course of vocational rehabilitation as herein
          provided.    A person undergoing vocational
          rehabilitation must be paid temporary total
          disability benefits. .     ..
We note that 5 39-71-1001, MCA (1985), was repealed in 1987 and
5 39-71-1003, MCA (1985), was revised in 1987.
     The State Fund contends that under 3 39-71-1001, MCA (1985),
it was not required to pay benefits during a period of retraining
unless the claimant was both permanently disabled and had no job
prospects without retraining.   That is not what the statute said.
It required that the division of workers' compensation refer to the
Department of   Social and Rehabilitation Services permanently
disabled claimants who, in the opinion of the division, were
capable of vocational rehabilitation. The State Fund has conceded

                                 5
that Peile was undergoing vocational rehabilitation at the time of
the hearing before the Workers' Compensation Court.        That is
tantamount to an admission that she is capable of vocational
rehabilitation.
     The State Fund argues that it is not required to pay Peile
temporary total disability benefits during her retraining because
she is not totally permanently disabled.   However, 5 39-71-1001,
MCA (1985), was not limited to persons who were totally perma-
nently disabled. It applied to all permanently disabled claimants.
     Section 39-71-104, MCA (1985), also was in effect at the time
of Peile's injury and is applicable to this case.   It provided:
          Court to give liberal construction to chapter.
          Whenever this chapter or any part or section
          thereof is interpreted by a court, it shall be
          liberally construed by such court.
This statute has been interpreted to mean that, where there is
doubt, the doubt shall be resolved in favor of the injured worker.
See Gaffney v. Industrial Accident Board (1955), 129 Mont. 394,
287 P.2d 256.

     Nothing in the statutes in effect at the time Peile was
injured indicated that the benefits of 5 39-71-1003, MCA (1985),
were contingent on the claimant's having no prospects for employ-
ment without retraining, as the State Fund argues.    Section 39-
71-1003, MCA (1985), providedthat "[a] person undergoing vocation-
al rehabilitation must be paid temporary total disability bene-


                                6
f t . (Emphasis supplied.) We conclude that, under the statutes
 is"
which apply to this case, Peile is entitled to temporary total
disability benefits during retraining.
     The remaining issues are whether Peile is entitled to a 20
percent penalty and costs and attorney fees as a result of the
State Fund's refusal to pay her temporary total disability benefits
during retraining.   We remand this case to the Workers' Compensa-
tion Court for reconsideration of these issues in light of this
opinion.
                                                          7
     Reversed and remanded.
                                          /-         /,
                                                     -



                                            /&
                                            -
                                         Chief Justice

We concur:
A




                                 7
                                            September 17, 1991

                            CERTIFICATE OF SERVICE

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


D. Patrick McKittrick
McKITTRICK LAW FIRM, P.C.
P.O. Box 1184
Great Falls, MT 59403

Darcy M. Crum
James, Gray & McCafferty
P.O. Box 2885
Great Falls, MT 59403-2885

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
