                                                   No.     88-455

                    I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                         1989



DAVID S C I U C H E T T I ,

                         C l a i m a n t and A p p e l l a n t ,



HURT CONSTRUCTION & BOLAND CONSTRUCTION,
and S T A T E COMPENSATION INSURANCE FUND,

                         D e f e n d a n t s and R e s p o n d e n t s .




A P P E A L FROM:        T h e Workers' C o m p e n s a t i o n C o u r t ,
                         I n and f o r t h e A r e a of G r e a t F a l l s , MT,
                         T h e H o n o r a b l e T i m o t h y W. R e a r d o n , Judge p r e s i d i n g .


COUNSEL O F RECORD:

           For A p p e l l a n t :

                         R.   V.   B o t t o m l y , B o t t o m l y Law O f f i c e ;    G r e a t F a l l s , MT

           For R e s p o n d e n t :

                         H o n . M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , MT
                         M a t t h e w F. H e f f r o n , A s s i s t a n t A t t o r n e y G e n e r a l



                                                         S u b m i t t e d on B r i e f s :   M a y 11, 1 9 8 9

                                                            Decided:           July 1 4 , 1989




                .    .
                                                         Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Claimant appeals the decision of the Workers' Compensa-
tion Court awarding him disability benefits for a knee injury
for the statutory maximum of 200 weeks.     Claimant contends
that he should have received 500 weeks of benefits at a
minimum because his disability is attributable to his back in
addition to his knee. Claimant also appeals from a subse-
quent order of the Workers' Compensation Court regarding
attorney fees. We affirm the lower court's decision as to
both disability benefits and attorney fees.
     The issues are:
     1. Did the lower court err in concluding that claimant
has no impairment or disability of his back?
     2. Did the lower court err in its determination of
attorney fees?
     3. Did the lower court err in denying a lump sum award
of attorney fees for future benefits?
     Claimant was 35 years old at the time of trial and was
employed as a heavy duty construction worker when he suffered
two industrial injuries which culminated in his disability.
The first injury occurred on November 19, 1983, while claim-
ant was employed by Hurt Construction earning $11.30 an hour.
While carrying a wall weighing approximately 250-300 pounds,
claimant tripped and fell, causing the wall to strike his
right knee. Under the weight of the wall, claimant testified
that he wrenched both his knee and his back.
     Claimant went to the emergency room where he was treated
by Dr. Adelman, who diagnosed acute low back syndrome. The
claimant was next examined on March 21, 1984, by Dr. Avery,
an orthopedic surgeon. Dr. Avery diagnosed the injury as a
(1) probable tear medial meniscus right knee and a (2) recur-
rent thoracolumbar strain.   He recommended that the claimant
undergo knee surgery, although claimant testified that he
resisted surgery at that time.      Dr. Avery also examined
claimant's back and found not only that the X-rays were
normal, but also that his back had full range of motion. No
treatment was prescribed.    Claimant testified that he just
"put up with the pain." In interpreting Dr. Avery's diagno-
sis, another orthopedic surgeon, Dr. Bloemendaal, described
"recurrent thoracolumbar strain" as a "weakness that throws
his back into spasm. It's something in that particular area
that is very difficult to demonstrate by anything other than
examination when they're in the acute phase.    For example,
X-rays of that area are normal, and that has been the case
with Mr. Sciuchetti. He probably has a weak point up there.
When he overdoes things, he gets muscle spasm."
     Following the 1983 injury, claimant decided to continue
working in the construction field. The Workers' Compensation
Court found that he did not see another doctor until he
suffered his second industrial injury on August 13, 1984,
while working for Boland Construction. This injury resulted
in a broken right ankle and aggravation of the right knee.
While the ankle was healing, claimant's treating physician,
Dr. Bloemendaal, suggested that claimant undergo surgery on
his knee.    On November 27, 1984, the medial meniscus of
claimant's right knee was removed.
     At the time he sought treatment for the second injury,
claimant testified that he did not mention his back problems
to Dr. Bloemendaal, nor did he state it as an injury on his
claim for compensation. Regarding the connection between the
1984 injury and claimant's back condition, the Worker's
Compensation Court found that " (a) dispute exists as to
whether or not the second injury also aggravated the claim-
ant's back."
     Following the second injury, claimant received temporary
total disability benefits of $277.00 per week from August 14,
1984 to January 7, 1985 for the ankle injury. After January
7, 1985, claimant received his maximum total disability rate
of $286.00 per week for his injured knee. Claimant has not
been regularly employed since the second injury. In July of
1985, he filed a cause of action with the Workers' Compensa-
tion Court to determine the nature and extent of his inju-
ries, whether he was receiving the correct temporary total.
disability rate, whether he was entitled to a lump sum or an
increased award as a penalty, and attorney fees. The Work-
ers' Compensation Court concluded that claimant had reached
maximum healing of his ankle with no impairment or disabili--
ty, and that his back had reached maximum healing in November
of 1985 with no impairment or disability.     The court also
concluded that claimant's right knee had reached maximum
healing on December 1, 1985, with a maximum seven percent
impairment based on the testimony of Dr. Bloemendaal, and
that as a result of the knee injury claimant could not return
to his former employment as a heavy construction worker. The
court determined that claimant was totally disabled pending
completion of retraining, and ruled that if claimant failed
to enter retraining, he would be determined permanently
partially disabled. These determinations were based solely
upon the injury to claimant's knee, with none of the disabil-
ity premised upon the claimant's back problems.
     Pursuant to § 39-71-703, MCA (1983), the court calculat-
ed claimant's permanent partial disability benefit rate to be
$143.00 per week for the maximum 200 weeks for a knee injury,
thereby totalling $28,600. The court disallowed any lump sum
payment or a 20 percent penalty, but did allow reasonable
costs and attorney fees.
     On appeal, claimant challenges the sufficiency of the
benefits awarded, alleging that it was error for the court to
limit a finding of disability to his knee.      Claimant also
challenges the court's subsequent award of attorney fees.



     Did the lower court err in concluding that claimant
suffered no impairment or disability to his back?
     After reviewing the deposition testimony of four medical
experts, the Workers' Compensation Court made findings there-
on and concluded that claimant's disability was limited to
his right knee as a result of the two industrial injuries.
Claimant argues that, in reaching this conclusion, the lower
court considered only the medical testimony relating to
"impairment," and completely ignored the medical testimony
relating to back "disability."     He contends that without
findings relating to back disability, the lower court erred
in attributing disability solely to claimant's right knee,
and he should be entitled to 500 weeks of benefits.
     We note that impairment is but one factor of disability,
and both terms are defined under the 1983 Workers' Compensa-
tion Act as follows:
     39-71-121. Disability defined.    A worker is dis-
     abled when his ability to engage in gainful employ-
     ment is diminished as a result of impairment, which
     in turn may be combined with such factors as the
     worker's physical condition, age, education, work
     history, and other factors affecting the worker's
     ability to engage in gainful employment. Disabili-
     ty is not a purely medical condition. Disability
     may be temporary total, permanent total, or perma-
     nent partial as defined in 39-71-116.
    39-71-122.   Impairment defined.  Impairment means
    any anatomic or functional abnormality or loss of
    bodily function. Impairment refers to functional
    use of the body and is a purely medical condition.
    Permanent impairment is any anatomic or functional
     abnormality or loss of bodily function after the
     maximum medical rehabilitation has been achieved.
     The anatomic or functional abnormality or loss must
     be considered stable by the physician at the time
     the impairment rating evaluation is made.        An
     impairment rating is purely a medical determina-
     tion.    Impairment may or may not result in
     disability.
     In reviewing the lower court's determination of disabil-
ity, this Court must determine whether sufficient evidence
exists to support that conclusion. Linton v. City of Great
Falls (Mont. 1988), 749 P.2d 55, 61, 45 St-Rep. 68, 74.
Claimant points out that because all of the medical testimony
in this case was by deposition, this Court is in as good a
position as the Workers' Compensation Court to judge the
weight to be given that testimony, citing Snyder v. San
Francisco Feed & Grain (Mont. 1987), 748 ~ . 2 d924, 929, 44
St.Rep. 2216, 2224. While that standard of review is cor-
rect, this Court will nevertheless uphold the lower court if
there is substantial credible evidence to support its conclu-
sion. We note that in Snyder, the conclusion of the Workers'
Compensation Court was found to be "in stark contrast with
the evidence presented at trial," and the case was reversed.

     In this case, the relevant findings made by the lower
court regarding the medical evidence presented on claimant's
back disability and impairment are as follows:
     9.   The claimant was working for Hurt Construction
          when he injured his right knee and low back on
          November 29, 1983. He went to the emergency
          room and was treated by Dr. Adelman, who
          diagnosed the claimant as having acute low
          back syndrome.
     10.   The claimant was next examined by Dr. Avery on
           March 21, 1984. He found that his back x-rays
           were normal and that the claimant's back had
           full range of motion.    He did not prescribe
           any treatment for the claimant's back at that
           time.
           The claimant did not see another doctor until
           he suffered his second industrial injury when
           he fractured his right ankle while working for
           Boland Construction on August 13, 1984. The
           claimant did not mention a back problem to his
           treating physician Dr. Bloemendaal, nor did he
           state it as an injury on his claim for compen-
           sation. It was not mentioned in his claim for
           compensation. (Exhibit 3 at 2) or the Employ-
           er's First Report.
     14.   It is agreed by all medical experts that the
           claimant's back reached maximum medical heal-
           ing in November of 1985.
     15.   Claimant's     treating     physician,     Dr.
           Bloemendaal, testified that he did not treat
           the claimant's back and found no back impair-
           ment.   Dr. Schutte testified that the claim-
           ant's back last "went out" in 1984, but there
           was no back impairment in January, 1986. Dr.
           Hinde reported that there had been no progres-
           sion in the back pain and that it was stable,
           so he did not address the issue.
     25.   The claimant has no impairment of the back.
     Having reviewed the record, we conclude that these
findings accurately reflect the medical testimony presented
and are not clearly erroneous. Tenderholt v. Travel Lodge
Intern. (Mont. 1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792,
1794.   However, claimant contends that these findings are
inadequate based upon additional medical evidence which he
claims clearly establishes that his back bars him from labor-
ing activities.    In essence, claimant requests that this
Court make additional findings regarding disability which are
not confined to "impairment." Claimant refers us to several
statements made by the medical experts which he contends the
lower court overlooked in reaching its conclusion.
     First, claimant contends that although his treating
physician, Dr. Bloemendaal, rendered a conclusory opinion of
no back impairment, the fact that he prescribed drugs for
back pain over a considerable period of time is evidence of
back disability. The record indicates that it was the claim-
ant who stated that he was given muscle relaxants by Dr.
Bloemendaal. The doctor himself, however, testified that he
did not recall ever prescribing anything to the claimant for
his back. He further testified that he did not recall ever
treating claimant's back in any manner. Claimant's assertion
on this point is therefore not supported by the record.
     Claimant also contends that Dr. Bloemendaal's testimony
establishes that claimant is unable to work in heavy con-
struction because of his back condition. The record indi-
cates that Dr. Rloemendaal did not attribute the upper back
problems to either of the accidents involved in this action,
nor did he testify that claimant could not perform heavy
construction work because of his back.    Given this lack of
conclusive evidence, we hold that the Workers' Compensation
Court did not err in its refusal to find that claimant cannot
work in construction because of his back.
     Next, our attention is directed to the testimony of Dr.
Hinde, a physiatrist who examined the claimant at the request
of claimant's counsel in November, 1985.      Claimant argues
that Dr. Hinde's testimony establishes objective manifesta-
tions of pain and loss of motion in his back, thereby justi-
fying a finding and conclusion of back disability.        The
doctor's notes state that:
     I did document some mild limitation of internal and
     external rotation of the shoulders, and that these
     maneuvers did produce mild discomfort in the area
     of the mid-thoracic spine at the level of T6, T7.
     He also reported some tenderness to my palpation of
     the paraspinal structures in this location.
     Claimant told Dr. Hinde that his back problems stemmed
from an injury which occurred in 1976 while lifting some
heavy pipes. Dr. Hinde did not attribute the back condition
to either of the accidents involved in this action.        He
testified that the scope of his examination was limited to
"any disability which still related to injuries to his right
knee and right ankle," and he did not attempt to tie the
claimant's back problems to any specific injury. When con-
sidered with the whole of Dr. Hinde's testimony, we conclude
that his notes indicating mild discomfort and mild limitation
of rotation do not mandate a finding of pain and loss of
motion to claimant's back, and that the lower court did not
err in failing to make such a finding. Instead, the court's
finding there was no loss of motion reflects the testimony of
Dr. Bloemendaal.    When the Workers' Compensation Court's
findings are based on conflicting evidence, this Court's
review is confined to determining whether there is substan-
tial evidence on the whole record to support those findings.
Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d
1189, 1192, 38 St.Rep. 1632, 1635.       Having reviewed the
record, we hold that a finding there was no loss of motion is
supported by the evidence.
     Next, claimant asks that we reassess the testimony of
Dr. Schutte, a specialist in sports trauma, who reviewed the
medical records of Dr. Adelman, Dr. Avery, and Dr.
Bloemendaal and rendered an opinion that claimant had no back
impairment in January of 1986. Dr. Schutte testified that,
"According to my records, the patient told me that his upper
back continues to go out and that his back has been on and
off in the interim." Claimant contends that it was error for
the Workers' Compensation Court not to make a finding re-
flecting this testimony which would form a basis for a con-
clusion of back disability. Given the whole of Dr. Schutte's
testimony and the other medical evidence, we conclude that
the lower court did not err in its findings. Dr. Schutte
examined claimant's back and found that it was within the
normal range of flexion, extension, and lateral bending. He
also took X-rays of his thoracic spine and found them to be
normal. As with the three other medical experts, Dr. Schutte
did not attribute claimant's upper back problems to either of
the industrial accidents involved in this action. We hold
that the lower court did not err in its findings.
        Finally, the claimant directs our attention to the
deposition testimony of Dr. Pardis, a chiropractor who exam-
ined him in December of 1 9 8 5 at the request of claimant's
counsel. Dr. Pardis was asked to evaluate the current condi-
tion of the upper back based upon his 1 9 8 5 examination of
claimant and additional medical records compiled in 1 9 7 8 when
he treated claimant's back for a separate incident of injury.
The claimant argues that, based on Dr. Pardis' testimony, the
lower court should have found that he was required to leave
the construction field because of his back.        While Dr.
Pardis' testimony establishes that heavy construction is not
advisable given claimant's back condition, the back condition
was not connected to any specific injury, let alone the two
industrial accidents involved here. When asked to make the
connection between the back complaints and the injuries, Dr.
Pardis responded that "there's no way of tying it to a spe-
cific accident," and stated that different conditions such as
spinal cord lesions, tumors, fractures, or dislocations could
also mimic the symptoms of which claimant complained.         We
conclude that the lower court did not err in refusing to find
that claimant was forced to leave construction due to his
1 9 8 3 or 1 9 8 4 industrial accidents.
        Having reviewed the overall record, we conclude that
claimant is attempting to have this Court substitute its
judgment for that of the lower court based on isolated pas-
sages of testimony when, in fact, the lower court's findings
are supported by the record and do not indicate that any
testimony was overlooked or ignored. We conclude that the
lower court's conclusion is not in stark contrast to the
evidence presented at trial, as was the case in Snyder. We
hold that the lower court adequately considered both "impair-
ment" and "disability" in reaching its conclusion, and that
there are no grounds for modifying the findings or conclu-
sions reached in this case.

                             11.
      Did the lower court err in its determination of attorney
fees?
      In a subsequent hearing to determine reasonable attorney
fees, the parties disputed whether fees should be paid on
benefits received after claimant reached maximum medical
healing, until the date he entered retraining pursuant to the
court's order finding him permanently and totally disabled.
The period in question runs from November 26, 1985 to Novem-
ber of 1987, during which time claimant received temporary
total disability benefits.
      The Workers' Compensation Court disallowed attorney fees
for that period based on McKinley v. American Dental Mfg. Co.
 (Mont. 1988), 754 P.2d 831, 45 St.Rep. 892. In that case,
this Court stated that there are two conditions to an award
of attorney fees under § 39-71-612, MCA (1983), which is the
applicable statute in the present case: (1) the amount of
compensation must be in controversy, and (2) the amount
awarded must exceed the amount paid or tendered, citing LaSar
v. Oftedal & Sons (Mont. 1986), 721 P.2d 352, 43 St.Rep.
1938.    Because claimant in this case was awarded the same
amount of temporary total disability benefits as the State
Fund was already paying, the Workers' Compensation Court
determined that he was not entitled to attorney fees from
November 26, 1985 to November of 1987.
     On appeal, claimant argues that this determination was
in error because payment of benefits during that time (1) was
a fact in controversy and were secured by the efforts of
counsel, and (2) was not voluntary or unconditional because
the State Fund fully expected to recoup any excess total
disability payments had claimant been declared permanently
partially disabled at the hearing.      Claimant argues that
these contentions form a basis for attorney fees not only
under fj 39-71-612, MCA (1983), but under S 39-71-611, MCA
(1983), as well because of defendant's denial of liability
for payment of any benefits after November of 1985.
     Section 39-71-611, MCA (1983), only applies "[iln the
event an insurer denies liability for a claim for compensa-
tion or terminates compensation benefits."    Here, the Work-
ers' Compensation Court found as an uncontested fact that
"defendant accepted liability for claimant's injury and has
paid weekly temporary total disability benefits to date."
Therefore, S 39-71-611, MCA (1983), is inapplicable.
     Secondly, claimant's contention that payments were not
voluntary or unconditional based on how the State Fund might
have proceeded is pure conjecture and is not supported by the
record. We hold that the Workers' Compensation Court did not
err in determining that claimant was not entitled to attorney
fees for the period from November, 1985 to November, 1987.

                            111.
     Did the lower court err in denying a lump sum award of
attorney fees for future benefits?
     The Workers' Compensation Court determined that lump sum
attorney fees would be awarded on the permanent partial
disability payments which were to be granted after claimant
had completed his retraining period. However, the court held
that lump sum attorney fees would not be awarded based on the
total disability benefits paid out to claimant during his
retraining program. The court based its determination on a
finding that:
     [Ilt is questionable as to whether claimant will
     successfully complete the entire four years of his
     program. The Court draws this conclusion from the
     fact that claimant expressed little enthusiasm at
     the time of trial for the four-year computer sci-
     ence course.    Therefore, claimant's counsel is
     entitled to 33 percent of all past paid total
     disability benefits in a lump sum but, thereafter,
     claimant's counsel is to receive his fee payment
     biweekly.
     This Court has held that a denial of lump sum attorney
fees for future benefits which may never accrue is not an
abuse of the lower court's discretion.       Swan v. Sletten
Construction Co. (Mont. 1986), 726 P.2d 1170, 1172, 43
St-Rep. 1926, 1929. Despite this authority, claimant argues
that a lump sum award is not precluded if it is warranted by
the facts.   He argues that the following facts distinguish
this case from Swan and render the lower court's denial of
lump sum attorney fees an abuse of discretion:
     (1) Claimant is in perfect health and is likely to
     live out his life expectancy;
     ...
    (3) The fee agreement (drafted prior to Swan)
    reflects the traditional expectations that lawyers
    will receive their contingent fees in a single lump
    sum;
    (4) Denying lump sum fees in a case like the
    present case will discourage attorneys from repre-
    senting needy claimants and will thereby frustrate
    the public policy of compensating injured workers.
     Despite these contentions, we hold that the Workers'
Compensation Court's denial of lump sum fees was not an abuse
of discretion. The reason for the court's denial was specif-
ically stated in its order, and was based upon the court's
observance of the character and demeanor of the claimant.
The court reasoned that if claimant discontinued his training
course, the remainder of the temporary total benefits for
which claimant now requests a lump sum of attorney fees might
never accrue.    Such a determination is not an abuse of
discretion.
      Affirmed.




 /   C - i f Justice
      lfe




         Justices
Mr. ~ u s t i c eWilliam E. Hunt, Sr., dissenting:



        I dissent.   I would reverse the Workers' Compensation
Court and award the claimant disability for the injury to his
back.
                                        /
