                             No.    92-305

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1992


ELAINE S. WILDIN,
           Claimant and Respondent,
     -v-
CNA INSURANCE COMPANY,
           Insurer and Appellant.




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


COUNSEL OF RECORD:
           For Appellant:
                Todd A. Hammer, Warden, Christiansen, Johnson      &
                Berg, Kalispell, Montana
           For Respondent:
                Victor R. Halverson, Halverson, Sheehy & Plath,
                Billings, Montana; James G. Edmiston, Billings,
                Montana; L. Randall Bishop, Jarussi & Bishop,
                Billings, Montana


                             submitted on Briefs:   October 22, 1992
                                         Decided:   February 4, 1993
Justice R. C. McDonough delivered the Opinion of the Court.

     This is an appeal from the Workersq Compensation Court order
affirming a Department of Labor and Industry         (DOLI) hearing
examiner's allocation of a settlement between the Claimant and
State Farm Insurance. We affirm.
     There are two issues on appeal:
     1.   Did the DOLI have jurisdiction over this matter?
     2.   Did the DOLI err     in allocating the money      from the
     settlement between the Claimant and State Farm?
     Elaine Wildin (Claimant) was injured in a rear end collision
with another motor vehicle while in the course and scope of her
employment.     CNA   Insurance company   (CNA) insured   Claimant's
employer, the    ~illings Gazette,     with   workers8 compensation
coverage.     State Farm c ire and Casualty Company (State Farm)
insured the driver of the vehicle which hit Claimant.     CNA paid to
the Claimant medical and disability benefits of over $35,000 after
accepting liability for the payments.
     Shortly thereafter, Claimant filed a civil action against
State Farm's insured and contacted CNA to determine if they would
join the action.      Claimant's attorney never received an answer
regarding CNAts participation in the action.      In July 1989, the
Claimant and State Farm agreed on a settlement of $15,000 in
exchange for a full release and discharge of the claims in the
third party action.     Drafts and the release were forwarded.   CNA
would not agree with the terms of settlement and took the position
that $15,000 was insufficient considering the overall amount of
                                  2
workers' compensation benefits already paid.
       Claimant then filed a "Petition for Division Order Determining
Subrogation" to allocate the settlement funds.      CNA responded to
the petition stating that the settlement payment was inadequate.
The DOLI concluded that it had jurisdiction over the allocation
determination and that CNA should receive $6,666.67 and Claimant
should receive $3,333.33 after a $5,000 deduction for attorney's
fees.     CNA appealed to the Workers' Compensation Court which
affirmed the hearing examiner.      CNA now appeals to the Montana
Supreme Court.
       Our standard of review as to findings of fact, made by the
Workers' Compensation Court, is whether they are supported by
substantial evidence. McIntyre v. Glen Lake Irr. Dist. (1991), 249
Mont. 63, 67, 813 P.2d 451, 454.         "[O]ur   standard of review
relating to conclusions of law, whether the conclusions are made by
an agency, workers' compensation court, or trial court, is whether
the tribunal's interpretation of the law is correct."        Steer Inc.
v. Dept. of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601,
603.
       The   first question on   appeal is whether the DOLI had
jurisdiction to allocate the funds from the settlement between the
Claimant and State Farm. The jurisdiction question actually hinges
upon whether State Farm and the Claimant had actually settled the
claim and whether the Claimant could settle the claim without CNA1s
consent.
       Section 39-71-412, MCA,   provides that:   ". . .   the employee
. . . shall, in addition to the right to receive compensation under
this chapter, have a right to prosecute any cause of action he may
have for damages against such persons or corporations."           The
statute provides that the right to bring a cause of action against
the third party belongs to the claimant alone.           There is no
provision which mandates the insurer's consent before the action
can be brought.         The "[f]unction   of the Supreme Court when
construing a statute is simply to ascertain and declare what is in
substance stated therein, and not to insert what has been omitted
or to omit what has been inserted."       Mont. Dept. of Rev. v. Am.
Smelting   &   Refining (1977), 173 Mont. 316, 324, 567 P.2d 901, 905-
906.    Here, CNA would have us insert language to provide that the
insurer also controls the handling of the action.        The right to
bring an action would be meaningless without the right to also
dispose of the action through settlement or other means.
       Moreover, 5 39-71-414, MCA, provides for the insurer's role in
the action.         It provides that the    insurer is entitled to
subrogation for compensation and benefits paid.       If the claimant
brings an action against the third party, claimant is to inform the
insurer, who may decide to participate in the action.         It also
states that the insurer may bring an action itself if the claimant
does not bring an action within a year of the date of the injury
and that the insurer may enter its own settlement for subrogation,
The statute provides for no more than these rights.       The insured
may settle an action without the consent of the insurer.       If the
legislature wanted the insurer to exercise such control over the
insured, they would have so stated.
       The question of whether the Claimant and State Farm had
settled their claim before the Claimant petitioned the D O L I to
allocate the proceeds of the settlement is answered in the
affirmative.    Subsection (5) of 5 39-71-414, MCA, states that:
"[ilf the amount of compensation and other benefits payable have
not been fully determined at the time the employee,       . . .   have
settled in anv manner the action as provided for in this section,
the division shall determine what proportion of the settlement
shall be allocated under subrogation.   . . ."   (Emphasis added.) In
this case, the Claimant and third party (State Farm) fulfilled this
requirement before the Claimant petitioned for the allocation of
the settlement funds.
       Claimant's attorney informed the CNA Claims Adjuster in charge
of Claimant's workers' compensation case, that he had received a
settlement draft for $15,000.    CNA took the position that $15,000
was inadequate compensation considering the payments and benefits
already paid.    The Claimant thereafter filed a petition with the
DOLI   Workers' Compensation Division for an allocation of the
settlement funds.
       As far as the Claimant and State Farm were concerned, there
was total agreement on the third party settlement.           This is
sufficient to meet the 5 39-71-414(5), MCA, requirement that the
action be "settled in any manneru before the D O L I could allocate
the settlement funds.
       CNA argues that the case should not have been settled because
the Claimant had not arrived at maximum healing before she settled
her claim with State Farm.     There is no provision in 5 39-71-414,
MCA, which mandates that a third party action cannot be settled
until the claimant reaches maximum healing.
     Subsection     (5) of      39-71-414, MCA,      contemplates that
compensation and other benefits may not be completely decided when
the claim is settled and the Division is asked to allocate the
funds. Subsection (5) states that "Jilf the amount of compensation
and other benefits payable under the Workers' Compensation Act have
not been fullv determined at the time the emolovee,...have settled
in anv manner the action     ...    , the division shall determine what
proportion of the settlement shall be allocated under subrogation."
(Emphasis added.)
     This Court stated in First Interstate Bank v. Tom Sherry Tire
(1988), 235 Mont. 48, 52, 764 P.2d 1287, 1289, that "where the
settlement of a third-party action precedes full determination of
the workers' compensation claim, the Division is the proper forum
for resolving the issue of the proper amount of subrogation
allocated to the insurer."     Maximum healing does not have to occur
before a claimant can settle her claim.
     Finally, CNA argues that the hearing examiner and the lower
court   ignored   principles   of     equity   and   fairness   in   their
disposition of this case.       However, this Court has stated that
"[ilt has always been our rule that it is the province of courts to
construe and apply the law as they find it and to maintain its
integrity as it has been written by a coordinate branch of the
state government.    When the terms of the statute are plain,
unambiguous, direct and certain, it speaks for itself and there is
no room for construction."   Bay v. State, Dept. of Admin. (1984),
212 Mont. 258, 265, 688 P.2d 1, 4.

     AFFIRMED.

                                     @c-&A&~/    Justice
                                        February 4, 1993

                                  CERTIFICATE OF SERVICE

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


Todd A. Hammer
WARDEN, CHRISTIANSEN, JOHNSON & BERG
P.O. Box 3038
Kalispell, MT 59903-3038

L. Randall Bishop
Attorney at Law
P.O. Box 3353
Billings, MT 59103-3353

James G . Edmiston
Attorney at Law
P.O. Box 7187
Billings, MT 59104-7187

Victor R. Halverson
Halverson, Sheehy, and Plath
P. 0 . Box 1817
Billings, MT 59103-1817


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
