                                         No.      96-329
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                 1996


JOSEPH EVANS,
          Petitioner          and Appellant,
     v.
STATE COMPENSATION INSURANCE FUND,
          Respondent          and Respondent,
ROSCOE STEEL & CULVERT COMPANY,
          Employer.




APPEAL FROM:     Workers'  Compensation Court
                 The Honorable  Mike McCarter,                        Judge     presiding.


COUNSEL OF RECORD:
          For   Appellant:
                 Brad        L.     Arndorfer,          Billings,     Montana
          For   Respondent:
                 Ann E.            Clark,  State            Compensation        Insurance          Fund,
                 Helena,           Montana

                                   ~!S
                        :,         ,.I
                              .,>,$       Submitted          on Briefs:       October        10,    1996
Justice          William        E. Hunt,         Sr.,        delivered            the Opinion             of the Court.

        Pursuant              to Section         I,      Paragraph          3(c),         Montana Supreme Court
1988 Internal                 Operating      Rules,          this        decision          shall     not be cited                as
precedent             and shall      be published                 by its        filing         as a public           document
with    the Clerk              of the Supreme Court                      and by a report                  of its        result
to Montana Law Week, State                            Reporter           and West Publishing                     Company.
        Appellant              Joseph Evans              (Evans)         appeals          the findings               of fact,
conclusions             of law,      and judgment                 of the Workers'                Compensation            Court
denying              Evans'      claim     for         a lump           sum conversion                   of    his      future
entitlement              to permanent            total       disability             benefits;            denying        Evans'
request          that       the State      Compensation                  Insurance          Fund (State              Fund) be
ordered          to recoup an earlier                    lump sum advance from benefits                               payable
after      Evans reaches             the age of 65; denying                         attorney         fees and costs;
and dismissing                 Evans'     petition.
        We affirm.
        We review               the following               issues:
          I.         Did the Workers'                 Compensation              Court       abuse its           discretion
when it          denied         Evans'    request            for       lump sum conversion?
          2.          Did     the Workers'             Compensation                Court        correctly            conclude
that           the      I994      contract            for         lump     sum           advance         is     clear       and
unambiguous?
                                                             FACTS
          In 1980,             Evans suffered               a shoulder            injury         while        working      as a
laborer          for     Roscoe Steel            in Billings,              Montana.              State        Fund, Roscoe
Steel's          insurer,         accepted            liability           for     the injury             and paid         Evans
both           medical         and   wage         loss        benefits.                   In     1993,         State       Fund

                                                                   2
determined              that         Evans         was      permanently               totally         disabled          and
converted             his      benefits      to permanent                total       status.
         On February              17, 1993, Evans requested                          a lump sum conversion                of
his      remaining              permanent          total      disability              benefits.             State       Fund
indicated             in a letter           to Evans'           attorney             that    while     it     would     not
convert         all     of Evans'          remaining          benefits              to a lump sum payment,                it
would      be willing               to    "offer       a lump sum if                  Mr.    Evans can show the
need      for         financial           assistance.                That           lump     sum would         then       be
recovered             on a biweekly            basis        until        Mr. Evans reaches                  age 65."
         Evans          and       State      Fund          agreed        upon        a lump        sum advance            of
$68,750.              Evans'        primary         purpose         in     pursuing          the     advance        was to
purchase         a     small       home in Bridger,                 Montana.           Evans believed            that     he
was putting             his      life,     and his fiance's                 life,       in danger by remaining
in his       Billings            neighborhood.                Evans had apparently                    been involved
as an informant                    in     a Billings          drug        bust,        had been the            intended
victim       of a drive-by                 shooting,          and was anxious                  to leave       the city.
          Evans'            1994 "Petition           For Lump Sum Advance Of Permanent                                Total
Disability             Benefits"           provided          in relevant             part:
                 I therefore   petition the Department of Labor and
          Industry    for a lump sum advance on any compensation in
          the amount of SIXTY-EIGHT THOUSAND AND SEVEN HUNDRED
          FIFTY AND NO/lOOTH DOLLARS ($68,750.00).
                I understand  the insurer   may recoup this lump sum
          advance from any type of biweekly benefits     or any type of
          award or settlement    I receive in the future.
          I UNDERSTAND:
                      The above amount will                   be recovered              by age SIXTY FIVE
          (65).
Evans'       petition               was approved                    by State            Fund and by the                       Department               of
Labor      and Industry.                        The order             of     approval              issued         by the             Department
of      Labor        and          Industry              stated            that      the          amount          of     Evans'               advance
"will       be recovered                   by age SIXTY-FIVE                            !65)."

          After            receiving                 his      advance,              Evans          purchased                  the          house       in

Bridger.               The         purchase                 price          was      initially                   $55,000,              but       Evans

successfully                  renegotiated                    a lesser             price          after          certain             structural
defects           were        discovered.                     Evans          purchased                 the      house          for         $35,000,

intending             to     use        the      $20,000             savings            for       repairs.

          After        State            Fund issued                 Evans         the      lump        sum advance,                   it     reduced

Evans'       biweekly               benefits               by $134.66,               an amount               calculated                    to recoup

the      advance             by     the         time         Evans         reaches             age        65.         Evans'               attorney

wrote           to      State             Fund             protesting                this          method               of       recoupment,

indicating              in        the     letter            that      it         was his          understanding                      that       State

Fund would              recoup            the        amount          of     the      advance              "from         the     backside               of

the      contract            as had been discussed."                                    Evans'            attorney             explained               in

the      letter             that         by      age         65     Evans           would          be        eligible                for      social

security             benefits            and would                 be better            able           to withstand                  a decrease

in workers'                compensation                     benefits.               Evans'             attorney              requested             that

the      entire         case        be settled                   so that           Evans         could          purchase             an annuity

to      provide              himself             future              income.                  State           Fund           rejected              this

request,             and       Evans            thereafter                 filed           the         action         in       the          Workers'

Compensation                  Court           that         we are          reviewing              here.

           Evans'            petition              to      the      Workers'               Compensation                    Court            sought          a

lump       sum conversion                     of the          entire             amount          of benefits                 due him during

his      lifetime.                 Evans        also         requested              that         the     court        order           State        Fund


                                                                             4
to recoup         its    1994 advance from the distal                                     end of Evans'            benefits,
after     he reaches            age 65.           After             a hearing,            the court        denied      Evans'
requests        and dismissed                his petition.                   It     is from this            judgment         that
Evans appeals.
                                                         ISSUE ONE
         Did the Workers'                  Compensation                   Court      abuse its        discretion             when
it    denied      appellant's                request           for       lump sum conversion?
         Evans contends               that       the court                should         have considered             his     best
interests         before         ruling          on his              request         for       lump sum conversion.
Evans argues            that     because his biweekly.benefits                                    checks      are subject
to      recoupment             his     monthly               income          is      well        below       his      monthly
expenses.          Evans explains                     that     the $68,750                 he was advanced            in 1994
has     been      depleted            by      the        purchase              of        the     Bridger          house,       the
unexpectedly            high cost            of repairing                  that      house,        and attorney             fees.
Evans contends                 that     it       is     undoubtedly                 in     his     best     interests           to
receive        a lump sum rather                      than biweekly                 payments:        with     a lump sum,
he can finish             the repairs                 to make his                 Bridger        home habitable;               pay
off     debts     incurred            as a result               of the repairs                   already      made on the
Bridger         house;     and purchase                      an annuity             to provide            himself          future
income.         On the other            hand, Evans argues,                          the biweekly            payments          are
simply         insufficient                for        monthly             necessities,              let      alone          house
repairs         or the purchase                  of an annuity.
         We have stated                 that           "Workers'            Compensation              Court         decisions
denying         lump sum settlements                         will        not be interfered                 with     on appeal
unless      there        is an abuse of discretion."                                     Sullivan      v. Aetna Life                &
Casualty         (1995),         271 Mont.              12, 15, 894 P.2d 278,                        280 (citing             Byrd

                                                                     5
v. Ramsey Engineering                 (1985),          217 Mont.         18, 21-22,        701 P.2d 1385,
1387; Kent v. Sievert                (1971),           158 Mont.     79, 81, 489 P.2d 104, 105).
Our deferential            standard         of review         reflects       our holdings          that        lump
sum payments           are the       exception           to the rule          of biweekly          payments,
Stanley       Structures      v. Scribner               (19921,     253 Mont.         236, 240, 833 P.2d
166,    169 (citing          Phelps v. Hillhaven                   Corp.      (1988),      231 Mont.           245,
252, 752 P.2d 737, 741-42),                      and that        the claimant         has the burden of
proving       that     a lump sum conversion                     of his      future     permanent          total
disability        benefits         is in his best             interests,       Sullivan,         894 P.2d at
280;    Stanlev        Structures,          833 P.Zd at 169.
        Here,        Evans failed           to     meet his        burden       of proof.           While        he
testified       that     his income from his reduced biweekly                           benefits          checks
was insufficient              to     meet        his     own needs          and pay        his     debts,        he
neglected        to provide          the     court        with     any documentary               evidence        to
support       this     contention.               As well,         Evans did       not    present          to    the
court       an investment          plan     with        any degree         of detail.        Furthermore,
as noted       by the court,          Evans'           annuity     quote which was presented                     at
trial        was flawed       in     that        its      computations          included         as benefit
monies due him the $68,750                       Evans was advanced              in 1994.          The court
concluded:
               In this case, I am not satisfied             that a lump sum
        advance to pay indebtedness         is in the claimant's           best
        interest.        His explanation      of his        expenditures      is
        undocumented,      wholly unsatisfactbry,       and not credible.
        If he is to be believed,       he has expended almost as much
         ($28,000 to $29,000)       on his house in Bridger             as its
        entire purchase price ($35,000),          and still     needs $30,000
        to finish    repairs.    If he is believed,      necessary repairs
        will   cost almost twice as much as the original               cost of
        the house.
               According to claimant,     his run-up of his credit         card
        balances included money for his living            expenses.      Adding
                                                          6
      that money to his biweekly    benefits                       and the $5,000 he
      says he used from the 1994 lump sum                         advance to pay for
      living  expenses,   the money he has                        had available   for
      monthly living  expenses over the last                       18 months has been
      far in excess of his monthly income                          prior  to the 1994
      advance, thus indicating   an inability                        to manage money.
      His       undocumented,     perfunctory       and     superficial
      presentation     concerning  his expenditures    over the last       18
      months     and the need for additional      house repairs,        also
      raises series           [sic1   questions          about his ability        to manage
      money.
       . . . .

            There is also no basis for awarding claimant      a lump
      sum to purchase an annuity.   Claimant's    assertion that he
      will  be better  off with an annuity     is identical  to the
      argument made and rejected  in LaVe v. School Dist. No. 2,
      220 Mont. 52, 55, 713 P.2d 546, 547-48 (Mont. 1986).
                 In    the    instant      case,     appellant       advances        two
                 principle     reasons for requesting         a lump sum payment.
                 They are:         (1) appellant       and her husband have
                 outstanding      debts, and (2) appellant         and her husband
                 wish to invest the money and receive a return which
                 would be greater        than the weekly benefits.              Neither
                 appellant     nor her husband have proposed a concrete,
                 specific    plan of investment.             Neither     of the two
                 have personally       contacted an investment or financial
                 counselor.       An investment      counselor did testify           for
                 appellant     on the return that appellant            could expect
                 if she was granted,         and invested,      a lump sum award.
                 In Kent v. Sievert           (1971), 158 Mont. 79, 81, 489
                 p.2d 104,     105, this Court held that where a claimant
                 requested      a lump sum payment proposing              "to put it
                  'on interest,"'       that proposed use was insufficient
                 to warrant       a lump sum payment.          Kent is still         the
                 law and appellant's             desired     investment         is not
                 reason, by itself,         to award her a lump sum payment.
                 Otherwise,       any claimant     desiring     a lump sum award
                 could secure one by proposing              to invest       it.     This
                 would defeat         the statutory       intent      of Montana's
                 Workers' Compensation scheme, as lump sum awards are
                 to be the exception.           Section 39-71-741,          MCA.
       (Emphasis        added.)

The record        shows that      with   the exception          of Evans'     testimony,      which
the   court       did   not   find    particularly           credible,      the   court    was not

                                                     7
 presented            with     any evidence                which would have prompted                               it     to grant
 Evans'        request         for     a lump sum conversion.                              The court            did not abuse
 its      discretion             when         it     denied                Evans'        request          for      a      lump       sum
 conversion.
                                                           ISSUE TWO
          Did     the Workers'                 Compensation                    Court      correctly             conclude            that
 the 1994 contract                    for     lump sum advance                        is clear        and unambiguous?
          Evans argues                that         the     provision                in   his     signed          petition            for
 lump sum advance                     which        states            his      understanding               that         the     amount
 advanced         to him would be recovered                                   by age 65 is            ambiguous.                   Evans
 contends         that        the provision                    is     susceptible              to the       interpretation
 and understanding                    he had when he signed                         the petition,               that      recovery
 of     the     advanced            amount         would            not      begin       until     he neared                 age 65.
 Evans        claims         that      State         Fund concurred                      with      this         understanding
 during        preliminary             negotiations.                         The.provision            states:
                I understand  the insurer  may recoup this lump sum
          advance from any type of biweekly benefits    or any type of
          award or settlement   I receive in the future:
               I UNDERSTAND: The above amount will                                               be recovered                 by
          age SIXTY FIVE (65).

          The court            concluded            that            "[tlhe      agreement          expressly              provides
'that      the        State         Fund       shall           recoup           the      advance          from          claimant's
 biweekly         benefits            and that             recoupment                 shall      be completed                 by the
 time         claimant          reaches            age         65."            The       court      refused              to        allow
 testimony            on the matter,                and denied                 Evans'         request       that         the court
 order        State      Fund to recoup                  its        1994 advance from the distal                               end of
 his     benefits,            after         he reaches               age 65.

                                                                       8
         The court's             conclusion            that      the provision            is unambiguous                is a
conclusion              of    law.           We must           determine        if      that          conclusion        was
correct.             Stanley           Structures,             833    P.2d     at       169.           The provision
expressly          allows        State        Fund to recoup              the amount of the advance in
a number           of    ways:         from      Evans'        biweekly        benefits;               from     a future
award;       or,        from     a future              settlement.             The provision                    expressly
requires         that        the amount of the advance be recovered                                      by age 65.
         Evans has apparently                        confused        clearly         expressed           alternatives
with       ambiguity.                 There      is      nothing          ambiguous           about       any      of   the
recovery           options       available             to State        Fund under              this      provision          of
Evans:       petition.                  Evans'          contention           that       State          Fund      was    not
required           to recoup           its     advance         from his        biweekly           benefits         is   not
relevant         to the issue                of ambiguity.            The court           correctly             concluded
that     the provision                 clearly         and unambiguously                allows          State     Fund to
recoup       its        advance         from      Evans'         biweekly        benefits.                The court's
subsequent           decisions           to disallow             testimony           regarding          the provision
and to          deny         Evans'      request          to      order      State       Fund to              recoup     its
advance         after         Evans reaches              age 65 were also                correct.               "The rule
has      long       been        that         where      no      ambiguity            exists       in      the     written
documents,              no parol             evidence        may be taken,              and the           duty     of    the
court      is simply           to apply          the language             as written."                Montana Bank of

Circle       v. Ralph Meyers & Son, Inc.                             (1989),         236 Mont.          236, 243,        769
P.2d 1208,              1212 (citation                omitted).
         Affirmed.




                                                                9
-we concur :




               Justices




                          10
