                                No. 87-15
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1987



ROBERT LEIKAM,
              Claimant and Appellant,
       -vs-
EDSON EXPRESS, Employer,
         and

HOME INSURANCE COMPANY,
                Defendant and Respondent.



APPEAL FROM:    The Workers' Compensation Court, The Honorable
                Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                Vernon E. Woodward, Billings, Montana
         For Respondent:
                James, Gray & McCafferty; Randall H. Gray, Great
                Falls, Montana


                                   Submitted on Briefs:   April 16, 1987
                                     Decided:   August 1 2 , 1987

Filed:    AD@1 2 198f.
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.


      Claimant, Robert W. Leikam, appeals from an order of the
Workers1 Compensation Court denying his motion to enter
judgment in his favor after the parties stipulated to
d.efendantlsliability and to vacate trial.
      We affirm the order of the Workers1 Compensation Court.
      The issues presented for review by claimant in this case
are :
      1. Whether the Workers1 Compensation Court erred in
denying claimant's motion for entry of judgment.
      2. Whether claimant is entitled to an award of attorney
fees pursuant to 5 39-71-611, MCA.
      The facts in this case are undisputed.
      Appellant, Robert Leikam, was a long distance truck
driver for Edson Express from 1981 through early 1986. On
September 20, 1984, Leikam suffered a low back injury while
unloading washing machines.
      Leikam timely reported his injury to his employer and
filed a claim for compensation. The insurance carrier, Home
Insurance Company (hereinafter Home), accepted liability for
the injury.     Leikam continued working after the accident
until he lost his job on January 16, 1986 for reasons not
related to his Workers' Compensation claim.
      Between the date of the injury and February of 1986,
Leikam visited a chiropractor many times for treatment. Home
compensated Leikam for these treatments.
      In March, 1986, claimant saw Dr. James T. Lovitt, a
Billings Montana orthopedic surgeon who advised him that he
could no longer work as a result of his industrial accident.
He informed Home of this new development and requested that
Home begin paying temporary total disability benefits to him.
     Home denied the claim, requesting additional medical
examinations before complete medical benefits and temporary
total disability benefits would be paid.    Claimant filed a
petition with the Workers1 Compensation Court. As discovery
developed, Home agreed to place Lleikam on temporary total
disability benefits, on a non-acceptance basis, pending
further investigation.
     On July 14, 1986, the parties filed a final pre-trial
order which listed the following issues to be resolved by the
Workers I Compensation Court.
     1. Is the Claimant currently temporarily totally
     disabled as a result of the September 22, 1984,
     industrial injury?
     2. If so, what, if any, temporary total disa.bility
     benefits is the Claimant entitled to?
     3. Is the Claimant entitled to            any   penalty
     pursuant to Section 39-71-2907, MCA?
     4. Is    the   claimant entitled     to     reasonable
     attorney's fees and costs?
     5. Is    the   Defendant  estopped     from     denying
     acceptance of this claim?
     The case was initially scheduled for trial on July 22,
1986, but was continued until November. On July 29, counsel
for both parties had a lengthy telephone conversation with a
neurologist from Billings who had treated Leikam upon
referral by his primary treating physician. As a result of
this phone conversation, Home stipulated to liability for the
September 22, 1984 injury and agreed to retroactively pay all
temporary total disability benefits arising therefrom. The
November trial date was vacated. Subsequent to the parties'
stipulation, Leikam moved the Workers' Compensation Court for
entry of judgment pursuant to the stipulated agreement.
     On December 26, 1986, the Workers1 Compensation Court
entered its order denying Leikam's motion for entry of
judgment and dismissing the petition - sponte. The order
                                      sua
was based on a lack of jurisdiction to enter judgment when
there was no longer any dispute.
     Claimant appeals from this order alleging: 1)       that
the Workers' Compensation Court does have jurisdiction to
enter judgment and   2) should award claimant attorney fees,
costs and a 20% penalty provided for by 5 39-71-2907, MCA.
     The second issue of whether claimant is entitled to an
award of attorney fees and/or a penalty is dispositive in
this case.
     Regardless of whether or not we hold that the Workers1
Compensation Court did have jurisdiction to enter judgment
pursuant to the parties' stipulation, the outcome would be
the same as to attorney fees. Entering judgment pursuant to
a   stipulation   does   not   amount  to   a   judgment of
compensability as required by 5 39-71-611, MCA:
     In the event an insurer denies liability for a
     claim for compensation or terminates compensation
     benefits   and   the   claim   is  later   adjudged
     compensable by the workers' compensation judge or
     on appeal, the insurer shall pay reasonable costs
     and attorneys1 fees as established by the workers1
     compensation judge.
     In Lasar v. Oftedal & Sons (Mont. 1986), 721 P.2d 352,
353, 43 St.Rep. 1239, 1240, this Court held that where there
is a situation in which the insurer does not deny liability
for a claim or terminate benefits the claimant is not
entitled to attorneys fees and costs under 5 39-71-611, MCA.
Home accepted liability for Leikamls claim and did not
terminate his benefits.
     Adjudication     of   a   Workers'   Compensation   claim   as
compensable is a prerequisite to allowance of attorney fees
pursuant to this statute. Cosgrove v. Industrial Indemnity
Co. (1976), 170 Mont. 249, 254, 552 P.2d 622, 624.

     If an insurer denies liability for a claim for
     compensation, the insurer is liable for attorney's
     fees if the claim is later adjudged compensable by
     the Workers' Compensation judge. It is clear from
     the language of the statute that there must be an
     adjudication of compensability before an award of
     attorney's fees is authorized.
Yearout v. State Compensation Insurance Fund (~ont. 1986),
719 P.2d 1258, 1259, 43 St.Rep. 1063, 1065.
     In   this   case,   there   was   no   adjudication  of
compensability.    The parties settled their compensation
dispute before the trial date, vacating the trial.     As we
stated in Yearout, 719 P.2d at 1260, the proper forum for
redress of this sometimes harsh result is the Legislature.
Other alternative remedies may be available to claimant.
     The decision of the Workers' Compensation Court is
affirmed.




2/xC/
We Concur:   A


                      -
      Chief Justice
P,
/&
 /
 -   Justices
Mr. Justice John C. Sheehy, dissenting:


     I dissented in Yearout, 719 P.2d at 1260-1261, and I
dissent here for the same reasons.
     The practice of insurers in the state (and it is a
practice) to force employees to obtain attorneys in order to
get their rightful benefits, and then to confess liability at
or near the time of trial ought to be condemned by us and
prohibited by the assessment of penalties and attorney fees.
This Court reads      39-71-611, MCA too narrowly when it
requires an actual adjudiciation before it will assess the
penalties.
     The intent and purpose of the Workers' Compensation Act
is to make some provision to the worker for his economic loss
brought about by his injuries.    Rarely does he recover the
whole amount of his loss. When a recalcitrant insurer delays
and denies his benefits, and forces him to the Workers'
Compensation Court to obtain his rights, at that point he
should be entitled to the penalties if his cause is just.
Our refusal of those penalties is another economic loss to
the worker because he must then bear the expense of his
litigation.    I cannot believe that result is what the
