                                    No. 8 7 - 2 0 3
                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        1987




DAVID L. CALDWELL,
                  Claimant and Appellant,
         -vs-
GREAT WESTERN SUGAR CO., and HUNT
INTERNATIONAL RESOURCES CORPORATION,
Employer, and UNINSURED EMPLOYERS'
FUND, Defendant, and STATE COMPENSATION
INSURANCE FUND,
                  Defendant and Respondent.




APPEAL FROM:      The Workers' Compensation Court, The Honorable
                  Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                  Whalen   &   Whalen; Timothy J. Whalen, Billings, Montana
         For Respondent:
                  Allen B. Chronister, Agency Legal Services, Helena,
                  Montana



                                         Submitted on Briefs:     Aug. 1 3 , 1 9 8 7
                                            Decided:   December 10, 1 9 8 7
Filed:    ;     i'agE(7'


                  p-




                                        Clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.


     Claimant Caldwell appeals the Workers' Compensation
Court's order dismissing his claim for benefits from the
Uninsured Employer's Fund. We affirm.
     On May 5, 1983, Caldwell suffered an industrial injury
while working at Great Western Sugar in Billings, Montana.
Great Western, a self-insured employer, accepted liability
for Caldwell's injury and paid temporary total benefits until
February 23, 1985.     Subsequently, Great Western Sugar went
bankrupt and benefits ceased.
     After benefits ceased, Caldwell petitioned for coverage
from   the   Uninsured   Employers'   Fund.     The Workers'
Compensation Court denied coverage holding that at the time
of the injury    and thereafter, the claimant's employer was
not an uninsured employer.     The issue on appeal is whether
the court properly dismissed the Uninsured Employers' Fund.
     The matter presented by this appeal concerns the court's
conclusion of law defining who is and when an employer is an
uninsured employer within the meaning of the Uninsured
Employers' statute as applied to the Uninsured Employers'
Fund. We will decide this issue accordingly.      Statutory
construction must give proper effect to legislative intent.
Here, the question concerns the purpose and function of the
Uninsured Employers' Fund.    Hendy v. Industrial Accident
Board (1944), 115 Mont. 516, 146 P.2d 324. At the time of
the injury, the law called for liberal construction of the
Workers' Compensation statutes, § 39-71-104, MCA (1981),
however, this does not mean that the clear meaning of the
statute can be ignored, Olson v. Manion's Inc. (1973), 162
Mont. 197, 510 P.2d 6.
     Section 39-71-508, MCA, provides that an employee is
entitled to a claim against the Uninsured Employerst Fund if
he "suffers - injury out of and in the course of employment
             an
while working - - uninsured employer as defined in
                 for an
                            .
39-71-501. " (Emphasis added) Uninsured employer is defined
by $ 39-71-501, MCA, as "an employer who has not properly
complied with the provisions of 39-71-401."           Section
39-71-401 requires that employers "shall elect to be bound by
the provisions of compensation plan No. 1, 2 or 3."      When
Caldwell was injured, Great Western Sugar was not an
uninsured employer, it was properly enrolled under plan No. 1
and paid benefits for approximately two years.       Clearly,
Caldwell was not injured while working for an uninsured
employer.    Therefore, Caldwell is not eligible to have a
claim against the Uninsured Employerst Fund. We hold that the
Workerst Compensation Court      properly   interpreted   the
statutory law. Affirmed.                                        l
                                                                '



We Concur:
                ,
                                  & &+
                                     P   C   tice




         Justices
Mr. Justice John C. Sheehy, dissenting:


     The majority have selectively interpreted $ 39-71-401,
MCA, regarding that portion of the statute which accords with
their view of the case, and disregarding an equally
applicable portion of the statute because it is troublesome.
     Under § 39-71-501, MCA, an "uninsured employer" means an
employer who has not properly complied with the provisions of
S 39-71-401, MCA.    Note that the definition refers to the
whole of S 39-71-401, and not merely to subdivision (1)
thereof.
     The majority have relied on subdivision (1) of S
39-71-401, which provides in part:
     An employer who has any employee in service under
     any appointment or contract of hire, express or
     implied, oral or written, shall elect to be bound
     by the provisions of compensation plan number 1, 2
     or 3.. ..
     However that is not the only duty placed upon employers
under $ 39-71-401. It is provided in subdivison (4) (a) of
that statute as follows:
     (4) (a) A     rivate corporation shall        rovide
     coverage fzr 5 s officers and other employee: under
     the provisions of compensation plan number 1 [self
     insurance], 2 [private insurer] or 3 [state fund
     insurance]  ...  (Emphasis added. )
     Great Western Sugar Company enrolled under plan number
1, a self insurer.    It is a private corporation and so is
bound by subdivision (4) of S 39-71-401. It has not provided
coverage for its "other employees" as a self insurer as it is
required to do under that subdivision.         Thus under S
39-71-501, Great Western Sugar Company is an "uninsured
employer" because it has not properly complied with the
provisions of 39-71-401.
      In § 39-71-505, MCA, it is provided that with respect to
uninsured employers, all appropriate provisions in the
Workers' Compensation Act apply to the fund in the same
manner as they apply to compensation plan number 1, 2 and 3.
Included in that command is the statute requiring liberal
construction of the Workers' Compensation Act in favor of the
employee, a statute which was in effect at the time of this
loss.
      In Gidley v. W. R. Grace and Company ( 1 9 8 6 ) , 717 P.2d
21, 43 St.Rep. 616, we had before us the Montana Occupational
Disease Act (MODA)  .   In that case, we determined that the
rationale that applies to Workers' Compensation cases applied
to MODA, because both Acts involve the same employer/employee
relationship and the same rules of liberal construction
should apply.    We should apply the same rules of liberal
construction to this case and determine Caldwell in effect is
in fact an employee of a "insured employer" because his
employer has not provided coverage to him to the extent that
he is entitled.
      Liberal construction is not required in this case;
literal construction is.      Under 39-71-401 (4)(a), MCA, a
private corporation such as Great Western is required to
provide coverage for its employees under some compensation
plan.    It has not complied with that provision.        It is an
"uninsured employer" under B 39-71-501, MCA.
      It is mere babble in this case to talk about the clear
meaning of the statute, where literally and clearly Great
Western is an uninsured employer. In the construction of a
statute, the office of the Court is simply to ascertain and
declare what is in terms or is substance contained therein,
not to insert what has been omitted or to omit what has been
inserted; where there are several provisions or particulars,
such a construction is, if possible, to be adopted as will
give effect to all. Section 1-2-201, MCA.
     This Court is conunitting a grave error in denying this
worker access to such benefits as may he available from the
uninsured employer's fund.


                                     {

Mr. Justice William E. Hunt, Sr:




     I concur in the foregoing dis
