                             No.    89-479

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990



ROSE LEE WINCHELL,
           Claimant and Appellant,


G & B MOTORS, INC.,

           Employer,
     and
WESTERN GUARANTY FUND SERVICES,
           Defendant, Respondent and
                Cross-Appellant.



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


COUNSEL OF RECORD:
           For Appellant:
               Donald R.     Marble; Marble Law Office, Chester,
               Montana
           For Respondent:
               K. Dale Schwanke; Jardine, Stephenson, Blewett        &
               Weaver, P.C., Great Falls, Montana


                                   Submitted on Briefs:   June 28, 1990
                                               Decided:   November 8, 1990
Filed:                                    J
Justice Diane G. Barz delivered the Opinion of the Court.


     This appeal arises from a judgment entered by the Workers1
Compensation Court.      Both claimant and Western Guaranty Fund
Services appeal.     We affirm in part and remand.
     On June 1, 1981, claimant injured her lower back while helping
two co-workers carry a new pickup box to a wrecked pickup truck.
It is undisputed that claimant's injury occurred while in the
course and scope of employment with G   &   B Motors, whose carrier is
                                              1
Western   Guaranty    Fund   Services   (insurer).       Claimant   was
hospitalized at the Northern Montana Hospital from June 5, 1981 to
June 14, 1981.       Claimant's treating physician, Dr. James E.

Elliott, diagnosed her injury as a severe paravertebral muscle
spasm. Claimant returned to work on July 1, 1981, and at that time
was taking medications to relieve her back pain.
     On September 20, 1981, during her lunch break at work,
claimant fainted and was found lying on a concrete floor.      She was

taken to Dr. Elliott for medical services.           Claimant told Dr.
Elliott that she was experiencing back pain and that the back pain

was related to the industrial accident of June 1, 1981.       Claimant
stopped working near the end of October, 1981, and has not worked
since.
     On July 6, 1981, claimant filed a workers' compensation claim.
The insurer accepted her claim and paid benefits from June 3, 1981
to June 30, 1981.       The insurer denied subsequent demands for
benefits, claiming that claimantls problems were not due to the

June 1, 1981 accident on the basis that the claimant had returned
to work and that it had received no medical reports since the last
report of June 5, 1981.

      Claimant filed a petition with the Workers' Compensation Court
to resolve the dispute between herself and the insurer.          A trial
was   conducted   on   September    30,   1986    before   the   Workers'
Compensation Court.    The issues before the court were whether the
claimant was temporarily totally disabled, permanently totally
disabled, or permanently partially disabled, and if permanently
partially disabled, whether claimant was entitled to permanent

partial disability benefits.       Also in issue was whether claimant
was entitled to attorney's fees and costs and a 20% penalty.
      The court heard the testimony of the claimant and nine
witnesses.   Other testimony was presented to the court by way of
post-trial depositions of various physicians and psychologists who

had treated or examined the claimant.       Conflicting testimony was
presented regarding claimant's condition.        For example, claimant's
treating physician and a psychologist opined that claimant's pain
was legitimate while two other physicians opined that claimant was
malingering for economic gain.

      On December 22, 1987, the Workers' Compensation Court entered
its findings of fact and conclusions of law and judgment.            The
court concluded that claimant's disability and benefits could not
be determined at that time.         Claimant was ordered to undergo
further testing, treatment and evaluation at a pain clinic to be
selected by the parties.      The court retained jurisdiction and
ordered the insurer to pay $93.33 per week in interim temporary
total benefits until a final judgment was issued.               The court also
determined that claimant was not entitled to a 20% penalty and the
issue of attorney's fees and costs were held in abeyance until
issuance of final judgment.
     After the issuance of the court's order there were numerous
post-judgment motions        filed and eventually claimant underwent
treatment    and       evaluation    at     the   Montana     Deaconess    Pain
Rehabilitation Center in Great Falls from May 22, 1988 until June
17, 1988.   The insurer, under order of the court, paid the cost of
claimant's treatment at the pain clinic.
     A rehearing was conducted on October                   18, 1988 before a
hearing examiner.       The evidence submitted was limited to the time
period after the first trial. However, the parties stipulated that
the court could rely upon the record already before it in addition
to further evidence in making its determination on rehearing.                On
rehearing, claimant again testified as did her vocational expert.
Others testified for the defense.               Post-trial depositions were
taken of the insurer's vocational expert and of the director and

personnel from the pain clinic.
     On July 7, 1989, the Workers1 Compensation Court entered its
findings of fact, conclusions of law and judgment. The court held
that: (1) claimant is permanently partially disabled and under 5
39-71-703, MCA     (1979), is entitled to 500 weeks of permanent
partial benefits at the rate of $26.68 per week; (2) insurer is to
receive credit for benefits paid after December 22, 1987; (3)
claimant    is   not    entitled    to    any   temporary    total   disability
benefits; and (4) claimant is entitled to attorney's fees based on
the amount of benefits now awarded above the benefits paid by the
insurer since December 22, 1987. Other facts will be discussed as
necessary.
     The issues raised by claimant on appeal are:
        1.   Did   the   Workers1   Compensation   Court    err    in   its
determination of claimant's permanent partial disability benefit
rate?
        2.   Do the findings of fact and conclusions of law support the
Workers1 Compensation Court's determination that claimant is not
entitled to back temporary total disability benefits?
        3.   Did   the   Workers1   Compensation   Court    err    in   its
determination of claimant's attorney's fees and in denying claimant
a 20% increase in her award pursuant to 5 39-71-2907, MCA (1979)?
     The insurer presents the following additional dispositive
issue on cross-appeal:
     Did     the Workers'    Compensation Court    err     in   ordering   a
rehearing?




     The Workers1 Compensation Court determined that claimant is
entitled to 500 weeks of permanent partial disability benefits at
the rate of $26.68 per week, pursuant to 5 39-71-703, MCA (1979),
which states in pertinent part:
          Compensation    for   injuries    causing     partial
     disability. (1) Weekly compensation benefits for injury
     producing partial disability shall be 66213% of the actual
     diminution in the worker's earning capacity measured in
      dollars, subject to a maximum weekly compensation of one-
      half the state's average weekly wage.
      On appeal, claimant contends the court's finding that she is
entitled to benefits at the rate of $26.68 per week is not
supported by substantial credible evidence. The insurer, in turn,
argues that claimant is not entitled to any permanent partial
disability   benefits    because    claimant    failed    to    prove   by   a

preponderance of the medical evidence that she was permanently
partially disabled.
     We begin with whether the Workers1 Compensation Court erred
in   its determination that        claimant    is permanently     partially
disabled.    It is well settled that decisions of the Workers'
Compensation Court will be upheld upon a finding of substantial
credible evidence.      Snyder v. San Francisco Feed      &    Grain (1987),
230 Mont. 16, 25, 748 P.2d 924, 929; Tocco v. City of Great Falls
(1986), 220 Mont. 221, 226, 714 P.2d 160, 163.           The determinative
question, therefore, is whether in looking at the record as a
whole, substantial credible evidence exists to support the decision
of the Workers' Compensation Court that claimant is permanently
partially disabled. In reviewing the record on appeal, we find the
medical evidence, together with the other evidence, is sufficient
to establish that claimant is permanently partially disabled.
     Section 39-71-116(12), MCA (1979), defines permanent partial
disability as:
     [A] condition resulting from injury as defined in this
     chapter that results in the actual loss of earnings or
     earning capability less than total that exists after the
     injured worker is as far restored as the permanent
     character of the injuries will permit.
It is undisputed that claimant's accident and injury occurred while
in the course and scope of her employment with G               &   B Motors.     The
evidence shows that prior to the accident, claimant had been a
strong    person     with    no   history      of   previous   back       problems.
Claimant's position with G          &    B Motors involved cleaning duties
including cleaning floors, washing and vacuuming cars, changing
tires, and cleaning water, mud, oil and dirt from a sump pit and
carrying this sludge in two five-gallon buckets weighing 40 to 50
pounds apiece.       These duties required heavy lifting, kneeling,
bending and pushing.
       The evidence also shows that after the accident claimant went
to numerous physicians and all diagnosed a soft tissue injury.
Claimant's treating physician, Dr. Elliott, testified that most
cases of pain have a psychological component and in claimant's case
there is a high psychological basis to her pain. Additionally, Dr.
Shubat, a clinical psychologist, testified that claimant is ''a
characteristic long-term, low-back pain, pain patient."
       Dr. Elliott, Dr. Shubat, and Dr. Labunetz, a neurologist, all
were of the opinion that claimant's problems began with her
industrial       injury, based     on     a   reasonable degree          of medical
certainty and all testified claimant would benefit from treatment
at a pain clinic.           Dr. Elliott further testified that without
treatment at a pain clinic, claimant's condition would remain the
same.
       Dr. Hinde, the director of the pain clinic, testified that
upon     entry    into   the      pain    clinic    claimant       had     all   the
                                          7
characteristics of a chronic pain patient.             He noted claimant's
inconsistent behavior regarding her pain and testified that this
is frequently seen in a chronic pain state and does not necessarily
indicate malingering.    Dr. Hinde diagnosed claimant as suffering
from predominately myofascial pain or soft tissue-based pain, which
followed a lumbar strain injury. Dr. Hinde was of the opinion that
claimant's discomfort occurred as a result of the industrial
injury, based on a reasonable degree of medical certainty.
     The record shows claimant performed very well at the pain
clinic and her condition improved dramatically.            At the time of
discharge claimant only had occasional reports of discomfort which
did not interfere with any of the physical activities she was asked
to perform. However, claimant still suffers from limitation in her
functional capacity.     Occupational therapist Kelly Scott in her
discharge summary found claimant could return to work in a medium-
range employment where lifting is not greater than twenty-five
pounds.    Additionally, standing and sitting was limited to I1[o]ne
hour at a time, no more than 4 hours total out of [an] 8-hour day.
     The    Workers1   Compensation   Court,      after    reviewing   the
supplemental medical evidence and the testimony of the parties1
vocational experts, found that claimant could return to work and
earn essentially the same wage,   $3.50   to   $4.00   per hour, as before
her injury.    However, the court also considered the other factors
for determining earning capacity set forth in Beck v. Flathead
County    (1988), 230 Mont.   294, 749 P.2d        527.     The court in
conclusion of law number 3 stated the following:
          The other factors that must be included in the
     determination of a loss in earning capacity under Section
     39-71-703, MCA, include claimant's age, (42); education
     and training, (ninth grade education with no vocational
     training); her previous health (good, although there may
     have been a preexisting lumbar disc disease aggravated
     by the injury).    She has been released for light or
     medium work.   She does experience pain, which can be
     minimized by following the pain clinic recommendations.
     Her 10 percent impairment rating recognizes her pain,
     which does limit her ability to work long hours standing,
     or in one position.
          Claimant's vocational witness testified that the
     claimant has a 78 percent reduction in her job market,
     as a result of the injury. However, she testified that
     the claimant was earning entry-level wages of $3.50 at
     the time of the injury and at this date, could also work
     at entry-level wages and therefore had no actual wage
     loss at this time.
          Defendant's vocational    consultant, D.     Bruce
     Carmichael, testified that the claimant could return to
     her job at the time of her injury or a number of
     vocational alternatives, which paid equivalent to or
     greater than what she was earning at the time of her
     injury.
          In considering all of the above factors, the Court
     concludes that the claimant did suffer a loss of earning
     capacity under Section 39-71-703, MCA, and with her
     difficulty in competing in her reduced labor market, has
     suffered a loss of earning capacity of $1.00 per hour,
     or $40.00 per week. Claimant's entitlement to permanent
     partial benefits under Section 39-71-703, MCA, is 66 2/3
     percent of her actual diminution in earning capacity,
     which is $40.00 times 66 2/3 percent, or $26.68 per week.
     Since claimant's injury is a back injury, not scheduled
     in Section 39-71-705, MCA, claimant is entitled to 500
     weeks, or a maximum of $13,340.00.
     The insurer argues that claimant has failed to prove her
disability by a preponderance of the medical evidence. In support
of its argument the insurer points out the testimony of those
medical experts who were of the opinion that claimant was a
malingerer. The insurer also stresses that testimony was elicited
from pain clinic personnel.regarding claimant's inconsistent pain
behavior.     However, this Courtts function upon review is to
determine whether substantial credible evidence exists to support
the Workerst Compensation Court's findings of facts and conclusions
of law; it is not this Court's function to determine whether there
is sufficient evidence to support contrary findings.     OtBrien v.
Central Feeds (Mont. 1990), 786 P.2d 1169, 1172, 47 St.Rep. 251,
254.   We hold that the Workers1 Compensation Court did not err in
finding claimant permanently partially disabled.
       Having concluded that substantial credible evidence exists
supporting the lower courtts determination that claimant         is
permanently partially disabled, we now turn to whether the court
erred in its determination of claimant's benefit rate.    As noted
earlier, the Workers1 compensation Court found that claimant is
entitled to benefits at the rate of $26.68 per week.       claimant
contends that the correct rate is $93.33 per week, arguing that the
court totally ignored the testimony of claimant's vocational expert
that claimant suffered a 78% reduction in her job market as a
result of the injury.   She claims that the court missed the point
presented by her vocational expert that the only work claimant
would be able to find in her normal labor market would be in Havre,
twenty-eight miles away from home, and that the work, due to her
back pain, could only be part-time work.
       In the personal injury context, the impairment of earning
capacity has been defined as 'Ithe permanent diminution of the
ability to earn money in the future.'' Thomas v. Whiteside (1966),
148 Mont. 394, 397, 421 P.2d 449, 451. "Pre-injury and post-injury
wages are but one factor to consider when determining earning
capacity. Earning capacity also includes age, occupational skills,
education, previous health, remaining number of productive years
and degree of physical or mental impairment."                 (Citation omitted.)
Beck v. Flathead County (1988), 230 Mont. 294, 296, 749 P.2d 527,
529. "The correct test for loss of earning capacity is whether the
injury has caused la loss of ability to earn in the open labor
market.    l1    (Citation omitted.)        Beck, 749 P.2d at 529.
      In        the    case    at   bar    the   Workers1    Compensation    Court
appropriately considered             the    factors in       determining    earning
capacity.         The court found that claimant does have a number of
vocational alternatives and although claimant does experience pain,
the   pain       can    be    minimized    by    following   the   pain    clinic's
recommendations.              We hold that substantial credible evidence
supports        the    Workers1 Compensation        Court's    determination    of
claimant's earning capacity and her permanent partial disability
benefit rate.




      Claimant argues the Workers1 Compensation Court's findings
after the rehearing do not support a conclusion that claimant is
not entitled to temporary total disability benefits.                 She contends
the issue of temporary total disability benefits was still before
the court at the time of the rehearing but the court's findings are
silent on the issue and the only reference regarding this issue is
the court's conclusion of law number 4:
          Claimant is not entitled to any temporary total
     disability benefits.
          This Court did not find any temporary total
     disability benefits due prior to the Judgment of December
     22, 1987, and the evidence presented after that date at
     the rehearing does not change that determination.
     Claimant argues this is an unacceptable conclusion because
nothing in the court's judgment following the first trial indicated
that the court at that point felt claimant was not entitled to
temporary total wage loss benefits.   We agree.
     The Workers' Compensation Court, after the initial trial, made
numerous findings detailing the   conflicting testimony which was
presented as to whether claimant's back pain was legitimate or
whether she was malingering.    The court then made the following
pertinent conclusions of law:
     2. Claimant's disability and benefits             cannot   be
     determined by this Court at this time. .     ..
          While it is undisputed that claimant suffered an
     injury to her back from an industrial injury that arose
     out of and was in the course of her employment, serious
     questions exist as to claimant's current physical
     condition.
          The record in this case is sated with conflicting
     testimony as to whether claimant's alleged back pain is
     legitimate or whether she is malingering. . .      .

          Therefore, it is this Court's decision that claimant
     shall be ordered to undergo further testing, treatment
     and evaluation at a pain clinic. This Court will retain
     jurisdiction over this matter and will delay its final
     decision until submission of a report by the pain clinic
     is received pursuant to the Judgment below.
     3. Claimant is to receive interim temporary total
     benefits which are to begin on the day of this Judgment
     and are to continue until the final decision of this
     matter.
          Claimant has not worked since terminating with
     employer in October of 1981 and, therefore, has suffered
     a complete loss of wages. There is no question that
     claimant sustained a compensable industrial accident in
     June of 1981.    The only issue is whether claimant is
     still incapacitated because of that injury. Because this
     Court is unable to make a decision as to that issue until
     further medical testimony is submitted from the pain
     clinic, this Court finds that interim temporary total
     benefits of $93.33 a week are appropriate under these
     circumstances.  ...
     These conclusions are inconsistent and conflicting with the
court's conclusion of law number 4 entered after the rehearing.
The Workers1 Compensation Court did not make a determination that
claimant was not entitled to temporary total disability benefits.
The court noted that, due to the conflicting evidence of claimant Is
physical   condition,   it   was   unable     to   determine   claimant's
disability and benefits, including whether claimant was temporarily
totally disabled, and therefore expressly resewed ruling on these
issues until further medical evidence could be obtained. After the
rehearing,   the   court   made    findings   relating   to    claimant's
attendance at the pain clinic and concluded that claimant was
permanently partially disabled.      It was from testimony regarding
claimant's physical condition after treatment at the pain clinic
that the court was able to come to a determination that claimant
was permanently partially disabled.      However, although the issue
was before the court at the time of the rehearing, no definitive
findings were made regarding whether claimant was temporarily
totally disabled from the time claimant terminated employment with
G & B Motors   in October, 1981 until interim total disability
benefits were ordered by the court on December 22, 1987.
       We hold that the findings of fact and conclusions of law are
conflicting within,     and    remand    this    issue   to   the   Workers'
Compensation Court for further proceedings to determine what
temporary total disability benefits are due, if any, from the time
claimant terminated employment with G      &    B Motors until the date of
permanent partial disability.


                                  111.

       In its judgment after the rehearing the Workers1 Compensation
Court awarded claimant attorney's fees based on the amount of
compensation benefits awarded her at that time above the benefits
paid by the insurer after December 22, 1987. The court's rationale
in limiting the attorney's fees award was that the court considered
it unwarranted to compensate claimant's counsel at the insurer's
expense for the court's independent decision to order a pain clinic
evaluation.    The court stated attendance at a pain clinic was not
requested by claimant nor was it part of her case.
       Claimant contends she should receive attorney's fees based on
back    temporary   total   disability   benefits, permanent        partial
disability benefits and the attendance at the pain clinic, arguing
that she made attendance at a pain clinic part of her case.
       The insurer also contests the Workers1 Compensation Court's
award, asserting that       claimant was not entitled to an award of
attorney's fees.      The insurer argues the court stated in its
initial decision of December 22, 1987 that claimant had elected to
waive any claim to attorney's fees and costs in exchange for going
forward with the case and taking post-trial depositions of medical
providers.   The insurer contends the court's position on the issue
of attorney's fees and costs was based on the claimant's failure
to exchange all pertinent medical information by the time of the
first trial.
     When reviewing an award of attorney's fees this Court will not
disturb the award absent an abuse of discretion by the lower court.
Martinez v. Montana Power Co. (1989), 239 Mont. 281, 285, 779 P.2d
917, 920. Our review of the record reveals that although the issue
of referring claimant to a pain clinic was not raised before trial,
this issue was presented to the court during the initial trial.
In his opening statement, claimant's counsel stated:
     The medical testimony is to be introduced later. The
     records we have now indicate she should be referred to
     a pain clinic. We are not exactly sure how the court
     would handle this, but our feeling right now is that she
     is probably still in a healing phase. She checked out
     of the Northern Montana Hospital to come here for this
     hearing today, she was in traction and, due to extreme
     pain, she was medicated. It has been since recommended
     that she be referred to a psychological pain clinic. As
     far as I can tell she is probably in some sort of a
     healing phase. If the court felt that she is probably
     more in a presently permanently-total condition, then we
     think that would be reasonable. We aren't here to ask
     for permanent-partial benefits or permanent-total
     benefits, because we are really concerned she get
     adequate medical care at this point, that the insurer be
     required to pay for this.
Moreover,    claimant's   attorney   elicited   the   testimony   from
claimant's medical providers regarding the need for a pain clinic.
     In its December 22, 1987 decision, the Workers's Compensation
Court noted that the following occurred at the commencement of the
trial :
     At trial, a discussion ensued between the Court and
     counsel relative to the status of the exchange of medical
     information and after that discussion, the Court gave the
     claimant the alternative of proceeding with the
     understanding the claimant would be limited to the
     medical the claimant had in her possession on July 16,
     1986, when her petition was filed and any examination
     post-trial would be limited to that period, or the
     claimant could proceed on the basis she would waive any
     claim to attorney's fees or costs but would be able to
     take post-hearing depositions with the medical evidence
     the claimant had at the time of trial to be submitted to
     the Court through the deposition process. Claimant chose
     the latter course.
     Although we recognize that the fixing of attorney's fees is
within the lower court's discretion, from our review of the record
we are unable to determine the reasons why the court subsequently
granted claimant limited attorney's fees after previously noting
that claimant had elected to waive any claim to attorney's fees and
costs.
     Because this Court is unable to determine whether or not the
Workers'      compensation Court abused    its discretion in      fixing
claimant's award of attorney's fees, we remand this issue to the
Workers1 Compensation C0ur.t. The Workers' compensation Court is
instructed to conduct such further proceedings as are necessary and
again consider the amount of attorney's fees claimant is entitled
to, if any, taking into consideration its findings and conclusions
on remand regarding claimant's back temporary total disability
benefits,      claimant's   permanent   partial   disability   benefits,
claimant's attendance at the pain clinic and the possibility of
claimant's waiver of any claim to attorney's fees and costs.
     Claimant further asserts she is entitled to a 20% penalty
under    §   39-71-2907, MCA (1979), arguing there was no legitimate
dispute between the parties such that the insurer was justified in
rejecting her claim after paying less than one month of benefits
in 1981.   We disagree.    Our review of the record finds no evidence
to show that it was unreasonable for the insurer to deny benefits
under the circumstances of this case.        This is especially true
given the Workers1 Compensation Courtls inability to come to a
conclusion as to disability and benefits after the initial hearing.
We hold that the Workers1 Compensation Court properly denied
claimant a 20% increase in her award.


                              Cross-Appeal
     On cross-appeal the insurer argues claimant was not entitled
to a new trial because claimant neither requested a new trial nor
did she have grounds for one pursuant to 8 8 25-11-103 and 25-11-
102 (I), (3) and   (4),   MCA, which set forth the bases for which a
court sitting without a jury may grant a new trial.
     The record demonstrates that it was the insurer, not the
claimant, who filed a petition for I1Rehearing or Modification of
Findings of Fact and Conclusions of Law and Judgment."        In its
petition the insurer argued that the decision of the Workers1
Compensation Court was in error and that the insurer was entitled
to a rehearing or an amendment of the decision.      In granting the
petition and ordering a rehearing, the Workers1 Compensation Court
noted claimant had not responded to the petition and had not
complied with the courtls order to begin evaluation at a pain
clinic.    The court found it had no alternative but to grant the
insurer's motion      since claimant's failure to respond to the
petition and to move the case forward lead to the conclusion that
the insurer's petition had merit.
     The insurer, having filed the petition for rehearing in the
first place, is in no position to argue the court erred in granting
its motion.   We hold the Workers' Compensation Court did not err
in ordering a rehearing.
     Affirmed in part and remanded in part with instructions.




We concur:       y    /




CH        J   tices
