                            No.     90-518

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991



DOLORES JAENISH,
               Claimant and Appellant,
                                                       MAY Y kS 1991
SUPER 8 MOTEL, Employer,
     and
EBI/ORION GROUP,
               Defendant, Respondent and Cross-Appellant.



APPEAL FROM:   The Workers1 Compensation Court,
               The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Dolores Jaenish, Pro Se, Bozeman, Montana
          For Respondent:
               Steven S. Carey; Garlington, Lohn               &   Robinson,
               Missoula, Montana



                                  Submitted on Briefs:       April 4, 1 9 9 1
                                             ..,,?Betided:   May 30 , 1991
Filed:


                                              . ". .
                             " Clerk
Justice John Conway Harrison delivered the Opinion of the Court.


     Dolores Jaenish and EBI/Orion Group appeal from a July 20,
1990, judgment of the Montana Workers1 Compensation Court ordering
EBI/Orion Group to be pay Jaenish 300 weeks of permanent partial
disability benefits.    We affirm.
     The parties present the following issues:
     1.     Was the court's determination of Jaenishls permanent
partial disability entitlement supported by substantial credible
evidence?
     2.     Did the Workers1 Compensation Court err     in denying
Jaenishls request to impose a twenty per cent penalty on EBI/Orion
Group pursuant to      39-71-2907, MCA?
     3.    Did the Workers1 Compensation Court abuse its discretion
in reversing its assessment of costs and attorney's fees related
to the continuation of the first trial after stipulation by the
parties?
     Dolores Jaenish strained her back on January 24, 1985, while
working as a maid and housekeeper for Super 8 Motel in Bozeman,
Montana.    She experienced severe back pain between her shoulder

blades.     Jaenish had received a back injury in an automobile
accident in 1976 which aggravated a childhood arthritic condition.
     Jaenish testified that since her injury in 1985 she had not
worked and continued to experience chronic back pain and headaches
related to her back condition. She took medications for pain, for
stomach discomfort, and to help her sleep.   Jaenish said that she
had difficulty sleeping because the back pain would cause her to
wake up during the night.        Jaenish also testified that because of
back pain she had trouble doing certain household chores, such as
laundry and vacuuming, and could not sit for long periods of time.
     Testimony was received from several physicians.               A panel of
doctors concluded that Jaenish had upper back pain of a muscular
ligamentous nature.      The physicians reported minimum findings of
degenerative changes in Jaenishls thoracic spine and determined
that Jaenish had reached maximum medical healing from the episode
of January 24, 1985.     The panel also concluded that Jaenish had a
zero impairment rating based on the guidelines of the American
Medical Association.
     EBI/Orion Group accepted liability for Jaenish s injury and
paid medical benefits and permanent partial disability benefits.
Prior to the hearings, Jaenish had also received lump sum advances
totalling $6,500.        Jaenish claimed that EBI/Orion             should be
penalized for unreasonable delay in acting on her requests for lump
sum advances.
     A   hearing   was    held    September   19,   1988,        with   Jaenish
representing herself.        At    Jaenishls request, the trial was
continued in order for Jaenish to obtain counsel.                   The court
advised Jaenish that if a continuance were granted, Itthe Court is
going to consider imposition [on Jaenish] of the costs of the
defendant and his witness being here today          ....    11


     A second hearing was held on September 5, 1989, with Jaenish
represented by counsel. The hearing examiner heard testimony from
Jaenish and from a vocational consultant and evaluator who had been
retained by EBI/Orion.
     Based   on the evidence, the Workers'        Compensation   Court
concluded that Jaenish was 60 per cent permanently partially
disabled, and had reached maximum healing.      The court ordered the
insurer to pay 300 weeks of permanent partial benefits at the
stipulated rate of $101.14 per week.     The court awarded attorney's
fees to Jaenish for the amount recovered above the insurer's
settlement offer of $25,285. The court also concluded that Jaenish
was not entitled to a penalty since EBI/Orionls delay in paying
advances to Jaenish was reasonable.
     From the judgment of the Workers1 Compensation Court, both
parties appeal.
                                  I
     Was the court's determination of Jaenish's permanent partial
disability entitlement supported by substantial credible evidence?
     Jaenish contends that the evidence supports a determination
that she is permanently totally disabled, rather than permanently
partially disabled. Jaenish also disputes the court's finding that
she had reached maximum healing. E ~ I / ~ r i oagrees with the court's
                                                n
conclusion that Jaenish is permanently partially disabled, but
argues that the evidence was insufficient to support the court's
finding of 60 per cent disability.
     The standard of review in workers1 compensation cases is
whether the court's findings and conclusions are supported by
substantial, credible evidence.       Gaumer v. Montana Department of
Highways (1990), 243 Mont. 414, 418, 795 P.2d 77, 79.          We cannot
substitute our judgment for that of the Workers1 Compensation Court
concerning the weight of the evidence on questions of fact.         When
substantial   evidence   supports the      findings of   the    Workers1
Compensation Court, the decision cannot be overturned.          Wood v.
Consolidated Freightways, Inc. (Mont. 1991), 808 P.2d 502, 504, 48


     As a preliminary matter, we note that no dispute exists about
the sufficiency of the evidence supporting the court's finding that
Jaenish is "as far restored as the permanent character of her
injuries will permit,I1 since at the second hearing her counsel
stipulated to maximum healing having been reached. Maximum healing
triggers a reevaluation of the claimant's disability status as
either permanently    totally   disabled    or permanently     partially
disabled.   Wood, 808 P.2d at 504, 48 St.Rep. at 307.
     Jaenish contends the evidence supported a determination that
she is permanently totally disabled, rather than permanently
partially disabled.   Permanent total disability is defined as:
     [A] condition resulting from injury as defined in this
     chapter that results in the loss of actual earnings or
     earning capability that exists after the injured worker
     is as far restored as the permanent character of the
     injuries will permit and which results in the worker
     having no reasonable prospect of finding regular
     employment of any kind in the normal labor market.

Section 39-71-116(13), MCA (1983).      To establish "no reasonable
prospect of finding regular employment of any kind in the normal
labor market1' the claimant must "'introduce substantial credible
evidence of (1) what jobs constitute his normal labor market, and
(2) a complete inability to perform the employment and duties

associated with those jobs because of his work-related injury. I f '
Metzger v. Chemetron Corporation (1984), 212 Mont. 351, 355, 687
P.2d 1033, 1035 (quoting Spooner v. ~ c t i o nSales, Inc. (1983) I11
Workers1 Compensation Court Decisions No. 85).      Once a claimant
presents evidence demonstrating that no reasonable prospect of
employment in his normal labor market exists, the burden of proof
shifts to the insurer to show that suitable work is available.
Wood, 808 P.2d at 504, 48 St.Rep. at 307.
     Jaenish failed to introduce evidence of her normal labor
market and evidence of a complete inability to perform the duties
of employment constituting her labor market.    Although the burden
did not shift to the insurer to show the availability of suitable
work, EBI/Orion presented testimony of a vocational expert who
established that Jaenish was capable of performing several jobs in
the Bozeman area.    Substantial credible evidence supported the
conclusion of the court that Jaenish was capable of performing work
in her labor market and had not demonstrated a complete inability
to return to gainful employment as a result of her work-related
injury.
     EBI/~rion agrees with the court's finding that Jaenish was
permanently partially disabled, but claims that the evidence was
insufficient to support Jaenishlsdisability rating of 60 per cent.
     Jaenish elected to proceed under BS 39-71-705 to -708, MCA
(1983), which provided that the indemnity benefits granted I1shall
be proportionate to loss or loss of use.I1 Factors to consider in
determining disability are the claimant's age, education, work
experience, pain, and disability. Flake v. Aetna Life and Casualty
Co. (1977), 175 Mont. 127, 129, 572 P.2d 907, 909.
      EBI/Orion contends that the evidence does not support the
extent of disability determined by the court because Jaenish, at

38, had a substantial number of years left for gainful employment.
Testimony of the vocational expert established that Jaenish's
condition allowed her to return to work in positions paying
approximately the same as she was receiving at the time of her
injury.     According to EBI/Orion, the medical evidence did not
support Jaenish's claims of the extent of her pain.            EBI/Orion also
points to Jaenish's zero impairment rating.
      Our   examination    of    the    record    reveals   that   the    court
specifically considered each of the required factors in reaching
its   determination that        Jaenish was      60 per     cent permanently
partially disabled. The court cited Jaenish's testimony about the

pain she experiences, and her limited activity, education, and work
experience to support its 60 per cent permanent partial disability
determination.
      We will not disturb the findings and conclusions of the

Workers1 Compensation Court if the conclusions are supported by
substantial    evidence,    even       though    conflicting   evidence    was
presented. Gaumer, 243 Mont. at 418, 795 P.2d at 79. We hold that
the Workers' Compensation Court relied on substantial, credible
evidence in determining that Jaenish was 60 per cent permanently

partially disabled and entitled to 300 weeks of permanent partial
disability payments at the stipulated rate.


     Did the Workers1 Compensation Court err in denying Jaenishls

request to impose a twenty per cent penalty on EBI/Orion pursuant
to 3 39-71-2907, MCA?
     The Workers1 Compensation Court may impose a twenty per cent
penalty for the insurer's refusal or delay in providing benefits:
        When payment of compensation has been unreasonably
     delayed or refused by an insurer .    .. the full amount
     of the compensation benefits due a claimant, between the
     time compensation benefits were delayed or refused and
     the date of the order granting a claimant compensation
     benefits, may be increased by the workers1 compensation
     judge by 20%.    The question of unreasonable delay or
     refusal shall be determined by the workers1 compensation
     judge . . . .
Section 39-71-2907, MCA (1983).      Jaenish claimed that EBI/Orion
unreasonably delayed in paying her needed lump sum advances.
     The Workers1 Compensation Court refused to assess a twenty per

cent penalty Itsincea bona fide dispute existed and the defendant's
payment of a $7,000.00 advance was not unreasonable under Section
39-71-2907, MCA."    As mandated by the statute, the issue of
llunreasonabledelay or refusal1' is a question of fact to be
determined by the Workers1 Compensation Court.    Handlos v. Cyprus
Industrial Minerals (1990), 243 Mont. 314, 317, 794 P.2d 702, 704.
The decision whether or not to exact a penalty pursuant to 3 39-
71-2907, MCA, will not be overturned if based upon substantial,
credible evidence.   Sharkey v. Atlantic Richfield Co. (1989), 238
Mont. 159, 168, 777 P.2d 870, 876.

    After reviewing the record, we hold that substantial, credible
evidence supported the decision of the Workers1 compensation Court
refusing to impose a twenty per cent penalty on EBI/Orion.
                                  I11
      Did the Workers' Compensation Court abuse its discretion in
reversing its assessment of costs and attorney's fees related to
the continuation of the first trial after stipulation by the
parties?
      In the early stages of this case, Jaenish was repeatedly
advised to retain counsel. At the first hearing, when the Workers'
Compensation Court considered Jaenish's request for a continuance
in order for her to obtain counsel, the court reminded Jaenish of
the costs to EBI/Orion of appearing at the first hearing and warned
her that the court might impose those costs on Jaenish.           This
exchange followed:
      JAENISH: I spoke with my lawyer on Friday and told him
      of the situation and he suggested the continuance. He's
      willing and said he will pick up the case.
      HEARING EXAMINER:   And the costs?
      JAENISH:    Yes, he will pick up the costs.
      HEARING EXAMINER:    The $1500 to Mr. Carey [EBI/Orionls
      counsel ] ?
      JAENISH:    I think so.
      EBI/~rion protests the award of attorney's fees to Jaenish on
the ground that Jaenish, during the first hearing, agreed to pay
EBI/Orionls costs, including attorney's fees, incurred at the first
hearing. EBI/Orion requested that those costs of the first hearing
be   deducted    from Jaenishls entitlement and     later moved    for
reclarification of this issue.        The Workers1 compensation Court
                                  9
denied both motions.
        We do not agree that Jaenish stipulated to paying attorney's
fees and costs as EBI/Orion asserts.           At the first hearing the
hearing examiner, after the exchange quoted above, cautioned
Jaenish that ''the Court is going to consider imposition                    [on
Jaenish] of the costs of the defendant and his witness being here
today and proceeding this far in the trial          . . .   .I1   The hearing
examiner stated in his ruling at the conclusion of the hearing:
        The question of costs of Mr. Carey and his witness and
        attorney fees will be presented to the Court for a
        separate consideration.
Thus, the question of whether Jaenish would pay EBI/Orionls costs
was not agreed upon or settled at the first hearing.               As we read
the record, Jaenish's agreement to pay EBI/Orionls costs was only
valid if so ordered by the Workers1 Compensation Court.
        The Workers1 Compensation Court concluded that Jaenish's offer
to pay costs of the first hearing was unenforceable because an
insurer is not entitled to attorney's fees and costs under the

Workers1 Compensation Act.        See North American Van Lines v. Evans
Transfer    &   Storage (1988), 234 Mont. 209, 7 6 6 P.2d 220.         In North
American    Van    Lines   we   stated   that the   purpose       of   awarding
attorney's fees to the claimant is to ensure that the injured
worker receives the fullest recovery possible.         North American Van
Lines, 234 Mont. at 213, 7 6 6 P.2d at 223.
     The decision of the Workers1 Compensation Court refusing to
award    costs and     fees of the       first hearing to     EBI/Orion      is
consistent with the policy of providing the injured worker with the
full amount of compensation benefits available.       We hold that the

Workers1 Compensation   Court   did   not   abuse   its   discretion   in

refusing to award EBI/Orion the costs and attorney's fees incurred

at the first hearing.

     Affirmed.



                                                      Justice

We concur:        I/
      .-     C-



       ~ H e Justice
             f
