                                  NO. 87-158
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      1987


RAYLYNN LAIJDERDALE,
                Claimant and Respondent,
       -VS-

MONTANA DEPARTMENT OF
AGRICULTURE,
                Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                Defendant and Appellant.



APPEAL FROM:    The Workers' Compensation Court, The Honorable
                Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Hughes, Kellner, Sullivan      &   Alke; Thomas E. Martello,
                Helena, Montana
       For Respondent :
                Utick   &   Grosfield; Norman Grosfield, Helena, Montana


                                      Submitted on Briefs:      Sept. 10, 1987
                                        Decided: November 19, 1 9 8 7
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     The State Compensation Insurance Fund (State Fund)
appeals the decision of the Workers' Compensation Court
awarding Ms. Lauderdale 500 weeks of permanent partial dis-
ability benefits in a lump sum. We affirm.
     The issues are:
     I-. Did the Workers' Compensation Court err in determin-
ing that Ms. Lauderdale's headaches were related to her
automobile accident?
     2. Did the court err in determining that Ms. Lauderdale
suffered a loss of earning capacity entitling her to 500
weeks of permanent partial disability benefits?
     3. Did the court err in awarding Ms. Lauderdale a lump
sum payment of benefits for her proposed business venture?
     From August 1983 to July 1986, Raylynn Lauderdale was
employed as an administrative assistant for the Montana
Department of Agriculture.    Her duties originally involved
public relations, but she was later given administrative
duties as well. In January 1985 Ms. Lauderdale's car struck
a deer while she was driving home to Helena from a
work-related meeting in Bozeman.     She was able to continue
driving home, and saw her doctor the next morning. He took
X-rays of her neck, but the X-rays did not disclose a 5     n7
evidence of injury.
      Ms. Lauderdale testified that approximately two or three
months after the accident, she started to suffer from extreme
headaches which were aggravated by leaning over her desk at
work.     She again sought medical help, first from an
acupuncturist and her physician, and later from a physical
therapist and a neurologist. She took two months off work in
an attempt to correct her headache problem, but ultimately
resigned her position in July 1986.
     Ms. Lauderdale filed a petition asking the Workers'
Compensation Court for 500 weeks of permanent partial dis-
ability benefits to be paid in a lump sum. She proposes to
start her own business of professionally planning special
events.   At the hearing on her petition, the State Fund
introduced the deposition testimony of a neurologist who has
examined Ms. Lauderdale and who testified that it was improb-
able that Ms. Lauderdale's headaches were related to her
accident. Ms. Lauderdale's physician testified by deposition
that the headaches did result from the accident. The State
Fund also presented testimony that Ms. Lauderdale had failed
to apply for a job for which she was qualified and physically
able, and which would pay as well as the job she left. It
then presented expert testimony that Ms. Lauderdale's pro-
posed business is too risky a venture. Ms. Lauderdale pre-
sented an expert who supported her business proposal.
     The Workers' Compensation Court found for Ms. Lauderdale
and gave her a 500 week lump sum award.       The State Fund
appeals.
                              I
     Did the Workers' Compensation Court err in determining
that Ms. Lauderdale's headaches were related to her automo-
bile accident?
     This Court's general standard of review of decisions of
the Workers' Compensation Court is whether substantial evi-
dence supports the lower court's findings and conclusions.
Perry v. Tomahawk Transp. (Mont. 1987), 735 P.2d 308, 310, 44
St.Rep. 686, 688. Where medical testimony is entered solely
through depositions, this Court may determine the weight to
be given the evidence. Lamb v. Missoula Imports, Inc. (Mont.
1984), 684 P.2d 498, 499-500, 41 St.Rep. 1414, 1416.   The
expert testimony on the etiology of Ms. Lauderdale's head-
aches consisted of depositions of two physicians whose
opinions conflict. The State Fund argues that the deposition
opinion of the neurologist should have been given greater
weight than the deposition opinion of Ms. Lauderdale's treat-
ing physician.
     Dr. Dwight Hiesterman was Ms. Lauderdale's treating
physician. He testified by deposition that he first saw her
for her headaches three months after her automobile accident.
He prescribed medication, an exercise program, and physical
therapy over the course of his treatment. He also referred
her to the neurologist whose opinion is discussed below. Dr.
Hiesterman testified by deposition that he concluded Ms.
Lauderdale's headaches were caused by chronic cervical strain
which is the result of her work-related automobile accident.
His notes indicate that "it is felt by the orthopedist and
the osteopath that probably her symptoms began in relation-
ship to the trauma from an automobile accident some time ago.
I certainly concur with that."
     Dr. Stephen Johnson, the Missoula neurologist to whom
Dr. Hiesterman referred Ms. Lauderdale, testified by deposi-
tion that he had examined Ms. Lauderdale once, for approxi-
mately thirty minutes.     His conclusion was that "I have
trouble relating something that began several months after
the accident to the accident itself."       He also stated,
though, that:

          I   would    have   a   little   easier   time
     relating ...   radiculopathy [disease of the spinal.
     nerve roots] to the accident instead of headaches,
     because things can happen immediately to a disk and
     then it gets out of place after some delay, so that
     is possible.   But again, I don't have a good way,
     since I don't have--didn't have an examination to
     review and I wasn't able to examine her immediate-
     ly, to know what was going on with that reflex
     before the accident or right afterwards or even--I
     didn't have any follocv-up after I saw her, even
     though I did write to Dr. Hiesterman and said I
     think this is going to be a difficult management
     problem. I would be happy to try and help out some
     more if you would like. We're talking about one
     point in time that I saw her and it's hard for me
     to make, you know, big judgments on that. I would
     like to see somebody several times to get a better
     view of things for that matter.
Dr. Johnson diagnosed Ms. Lauderdale's problems as migraine
headaches.
     In its findings and conclusions, the Workers' Compensa-
tion Court quoted portions of the depositions of both physi-
cians. It concluded that:

          Although Dr. Johnson may, by education and
     specialization, be slightly more qualified to
     render an opinion as to claimant's condition, given
     the fact that Dr. Hiesterman is claimant's treating
     physician and relied not only on his own profes-
     sional opinion but consulted with several other
     professionals, the Court finds greater weight in
     Dr. Hiesterman's finding.       Claimant's present
     condition is the result of her industrial accident
     and her present condition prevented her from work-
     ing at her job with the Department of Agriculture
     or any such similar desk-bound position.
     It is clear from the lower court's findings and conclu-
sions that the court carefully reviewed the deposition testi-
mony of both doctors. Dr. Johnson's conclusion is less than
unequivocal, and he recognized that his opinion was based on
limited information.   In contrast, Dr. Hiesterman's opinion
is based on his long-term treatment of Ms. Lauderdale.     In
this context, Dr. Hiesterman's opinion is not outweighed by
Dr. Johnson's, even in light of Dr. Johnson's greater quali-
fications in this area of specialization. This is true even
if we discount the opinions of other professionals mentioned
in Dr. Heisterman's notes, as the State Fund requests. We
hold that the lower court properly gave greater weight to the
opinion of Ms. Lauderdale's treating physician, and that the
court did not err in determining that Ms. Lauderdale's head-
aches were related to her automobile accident.
                               I1
      Did the court err in determining that Ms. Lauderdale
suffered a loss of earning capacity entitling her to 5 0 0
weeks of permanent partial disability benefits?
      The lower court found that Ms. Lauderdale had unsuc-
cessfully applied for several positions which would alleviate
her physical problems because they involved less desk work.
It found that retail sales positions for which Ms. Lauderdale
is qualified pay between $ 3 . 3 5 and $ 3 . 5 0 per hour, in con-
trast to the $8.89 per hour which she was earning at her
State job. The court found that the rehabilitation counselor
who testified for the State Fund was not able to locate
appropriate employment for which Ms. Lauderdale was quali-
fied.    It concluded that Ms. Lauderdale's actual loss in
earning capacity was $216 per week.
     After reviewing the transcript, we conclude that the
above findings of the Workers' Compensation Court have sub-
stantial support in the evidence. Ms. Lauderdale testified
that she was able to perform desk work for only four hours
per day and that she had investigated retail sales opportu-
nities in Helena, with the above-described results.             Dr.
Hiesterman testified by deposition that desk work could
aggravate Ms. Lauderdale's headache problem.             The State
Fund's rehabilitation counselor found only one full-time
position which he concluded would be appropriate for Ms.
Lauderdale. That position required education and experience
equivalent to a bachelor's degree in journalism, advertising,
public administration, broadcasting, public relations, or a
closely related area, plus three years of related experience.
Ms. Lauderdale does not have a bachelor's degree, and has
been in the workforce for less than ten years.            The lower
court concluded that the State Fund had failed to overcome
Ms. Lauderdale's showing that she cannot return to the posi-
tion she held at the time of injury, or to a comparable
position. We hold that this conclusion was not error.
                             I11
     Did the court err in awarding Ms. Lauderdale a lump sum
payment of benefits for her proposed business venture?
     The statute which governs whether Ms. Lauderdale is
entitled to a lump sum conversion is B 39-71-741, MCA (1983):

     The biweekly payments provided for in this chapter
     may be converted, in whole or in part, into a
     lump-sum payment. . .   . A controversy between a
     claimant and an insurer regarding the conversion of
     biweekly payments into a lump sum is considered a
     dispute for which the workers' compensation judge
     has jurisdiction to make a determination.
Conversion of biweekly payments to a lump sum is proper when
the best interests of the claimant require it, but lump sum
settlements should be the exception rather than the rule.
Willoughby v. Arthur G. McGee & Co. (1980), 187 Mont. 253,
256, 609 P.2d 700, 701-02. This Court's standard of review
of lump sum awards is whether the lower court's decision is
supported by substantial evidence.    Garmann v. E.R. Fegert
Co. (Mont. 1987), 736 P.2d 123, 124, 44 St.Rep. 781, 783.
     Ms. Lauderdale presented an extensive economic analysis
of her proposed event-planning business. Her expert witness
testified about the projected market and earnings of the
business over its first three years of operation.         Ms.
Lauderdale testified about the steps she had already taken to
get the business off the ground. The Workers' Compensation
Court found her to be "an enthusiastic and determined woman
with an obvious drive to succeed and an equally obvious
belief that she can succeed in this business." Her attorney
points out that her 500 weeks of permanent partial disability
benefits would expire when she was only 40 years of age.
     Despite the conclusion by the State Fund's expert wit-
ness that the proposed business venture is highly specula-
tive, substantial evidence supports the lower court's
decision that a lump sum award for the proposed business is
in Ms. Lauderdale's best interest.     We conclude that the
court did not err in awarding Ms. Lauderdale a lump sum
payment of benefits for her proposed business venture.
     Affirmed.




We concur:
    A




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