                                No. 86-310
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



LAVERNE I. LARSON,

                 Claimant and Appellant,
         -vs-
WILLIAM S. CRISSMORE, Employer,
       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:
                 Trieweiler Law Firm; Judith L. Wang argued, Whitefish,
                 Montana
         For Respondent:

                 Warden, Christiansen, Johnson   &   Berg; Stephen C. Berg
                 argued, Kalispell, Montana



                                   Submitted:    April 9,   1987
                                     Decided:    August 5, 1987

Filed:
                 -
          AUG 5 1987



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

     Laverne I. Larson appeals from a June 3, 1986, denial of
benefits requested in addition to those granted to him by the
Workers' Compensation Court between April 15, 1971, and April
3, 1980.
     We affirm the lower court's decision and remand to
determine proper rates for the temporary total and permanent
disability benefits.   We order payment of temporary total
disability benefits not to exceed 300 weeks in addition to
the permanent disability benefits to which claimant is
entitled and as instructed below.
     The issues on appeal are:
     1. Under the 1971 Workers' Compensation laws, was
claimant entitled to additional temporary total disability
benefits up to 300 weeks and should this amount have been
granted in addition to the 500 weeks of permanent disability
benefits already granted to the claimant? (Emphasis added.)
     2. Did the lower court err when it denied claimant's
request for a discretionary award by ruling that claimant was
required to show that he had lost both hands, or both arms,
or both feet, or both legs, or both eyes?
     3. Was claimant paid incorrectly low disability benefit
rates and was he entitled to permanent partial or permanent
total disability benefits?
     In December 1985, the appellant filed a petition for
hearing with the Workers' Compensation Court. The petition
generally sought benefits in addition to those paid to the
appellant from April 15, 1971, through April 3, 1980.       A
hearing was held on March 5, 1986, before the Workers'
Compensation Court Judge Timothy W. Reardon. Following the
receipt of post trial briefs and proposed findings and
conclusions, the court entered its judgment based on its
findings of fact and conclusions of law, dated June 3, 1986.
The court's decision denied additional benefits to the
claimant. This appeal followed.
     At the time of trial, on March 5, 1986, claimant was a
59 year old married father of 4 children, with one daughter
still dependent upon him for support.
     Claimant's work history includes railroad work as a
switch tender, switchman, and road brakeman.     He has also
worked as an oiler, laborer, woods worker, sawmill laborer,
welder, service station mechanic and attendant and as a heavy
equipment operator.
     Prior to his accident on April 15, 1971, claimant owned
his own business, Larson Logging, and he was a healthy and
active person.    His accident occurred when a winch he was
operating pulled a tree down which landed on his head. His
injuries   required   multiple   surgeries and    treatments.
Cl.aimantls injuries were primarily to his head and neck as
well as his back.
     Claimant was diagnosed as having a herniated disk which
was surgically removed in August 1971.     On June 28, 1973,
cervical fusion was performed and an abnormal disk removed.
On January 31, 1974, a fusion was performed from his L-4
vertebrae to his sacrum.
     In 1976, claimant fell off a flat-bed truck after
loading some equipment onto it. He injured his head and was
treated at the Veterans1 Administration Hospital in Spokane,
Washington as an in-patient from September 28 though October
15, 1976.    His main complaint was that he suffered from
headaches. A brain scan was performed which suggested that
claimant's headaches were related to the injury to the
temporal mandibular joint on his right side.
     During the summers of 1983 and 1984, claimant took a job
as brushcat operator because he needed the income. He could
take breaks as needed but at the end of the day he would take
pain pills and soak in a bathtub to ease the pain. In 1985,
he did not take that position because he was physically
unable to do so. He has done a few miscellaneous welding and
other tasks but basically has not worked since 1984.
     Claimant now has a limited ability to move his dorsal
spine which affects his general mobility. Lower back motion
and motion in his cervical spine is also less than normal.
Muscles in his right hand have atrophied and he can not
reach, grasp with or flatten out his dominant right hand. He
does not have full use of one of his feet and has no hot or
cold sensation in his feet. He can sit for about fifteen
minutes before getting lower back pains. He is no longer a
very coordinated person and cannot work, fish or hunt.
     In his present physical        condition, claimant is
unemployable. According to the lower court's findings, given
his age, limited education, work history and multiple major
surgeries, claimant is totally disabled from competitive
employment.
     Claimant's   Workers'    Compensation   benefits    were
discontinued on April 3, 1980, after he received 26 weeks of
temporary total disability benefits at $60 a week and 500
weeks of permanent partial benefits at $55 per week.
Claimant currently receives $510 a month from Social Security
as his only source of income.
     Claimant believes he incorrectly received only 26 weeks
of temporary total disability benefits and is entitled to
between 222.56 and 274 additional weeks of temporary benefits
as well as the maximum number of permanent partial and
permanent total disability benefit weeks.      At a minimum,
claimant argues he is entitled to 222.56 weeks of temporary
total disability benefits pursuant to         92-701, R.C.M.
 (1947). This minimum number of weeks is based on a statement
by Dr. Klassen on February 23, 1975, that claimant would not
reach maximum healing for an estimated six months.
      With a "liberal construction" mandate claimant argues
that a different calculation entitles him to a maximum of 300
weeks of benefits. We agree. This computation is based on
Dr. Blaisdell's opinion and claimant's testimony concerning
healing time following spinal injuries. Dr. Blaisdell stated
the maximum healing would occur between six months and two
years after the last surgery. Claimant's last lumbar surgery
was January 31, 1974.
      Claimant contends that the court below concluded that
claimant reached a maximum healing two years after January
31, 1975 or on January 31, 1977. Computing the benefit weeks
from 1971 through 1977, he concludes that they add up to
302.12 weeks thus entitling him to 300 weeks of temporary
total disability benefits minus the 26 weeks of temporary
total disability already paid to him.
      Respondent agrees § 92-701, R.C.M.       (1947) limits
temporary total disability benefits to 300 weeks from the
date of injury. However, S 92-708 of that code states the
total period for which compensation may be paid cannot exceed
500 weeks and that compensation shall run consecutively, not
concurrently.   Respondent contends the lower court did not
err in applying the black letter of the law and, if anything,
appellant was actually overpaid and is entitled to no further
benefits.
     Conflicting testimony exists as to when claimant's
temporary total disability status actually ceased.         An
examination of the record does not answer that question. We
hold that the claimant is entitled to temporary total
disability benefits of up to 300 weeks.       This should be
sufficient to help the Workers' Compensation Court in
determining the proper amounts due on remand.
     The parties agree that claimant was entitled to some
temporary disability benefits and some type of permanent
disability benefits.   The problem here is whether claimant
should have been granted benefits in excess of the 526 weeks
of benefits he already received. Inclusive in this issue is
whether claimant's temporary total disability was actually
only 26 weeks in duration or whether it extended to 300 weeks
duration (274 plus the 26 he has received) as claimant
contends; whether he is entitled to the full 500 weeks of
permanent total disability benefits, and whether he is
entitled to any amount of permanent partial benefits.
     Section 92-701, R.C.M.   (1947) (amended 1969) was the
applicable statute governing payment of temporary total
disability benefits in 1971. The statute set out a payment
schedule based upon the injured worker's wage and number of
dependents. It states:
           Such compensation shall be paid during
           the period of disability, but for the
           period not exceeding three hundred (300)
           weeks from the date of injury      ...
           provided that after twenty-six (26) weeks
           of disability such compensation shall be
           decreased by the sum of $5.00 per week
           during the period of disability.
     The purpose of the temporary total disability statute
was to provide temporary total benefits during the claimant's
healing period.
     In 1971, the term temporary total disability was not
specifically defined in the Workers' Compensation Act.     It
was amended in Chap. 23, Laws 1975.        The later enacted
definition has been interpreted to involve a two-pronged
test. First, a claimant must not have been as far restored
as the permanent character of his injuries will permit.
Secondly, the claimant must experience a total loss of wages.
Wilson v. Sun River Cattle Co. (Mont. 1983), 670 P.2d 931, 40
St.Rep. 1509.
     Although testimony was presented on claimant's temporary
total disability period, no finding of fact was made as to
the actual duration of the healing period. In light of our
decision on the rest of this issue, we remand this case for a
determination of the extent of claimant's temporary total
disability period and note that, in accordance with the
applicable statute, claimant is allowed up to 300 weeks of
temporary total disability benefits if he is found eligible.
     This Court recognizes the legitimacy of granting a
claimant different categories of benefits consecutively as a
claimant comes to qualify for them. For instance, in Jones
v. Claridge (1965), 145 Mont. 326, 331, 400 P.2d 888, 890, we
stated:
           [Wle may now have, under a given set of
           circumstances, an award for temporary
           total disability payments during the
           period wherein the claimant is entirely
           disabled; ...    and an additional award
            (indemnity  benefits)    for   loss   of
           prospective future earnings as the result
           of permanent partial disability under
           S 92-709 . . .
     Similarly, in McDanold v. BN Transport, Inc. (Mont.
1981), 634 P.2d 175, 179, 38 St.Rep. 1466, 1471, we stated:
           Construing the section liberally in favor
           of the injured worker as required under
           former Section 92-838, R.C.M., 1947, now
           Section 39-71-104, M.C.A., we hold that
           the period during which claimant received
           temporary total disability benefits under
           former Section 92-701, was separate from
           and in addition to the period during
           which he would receive benefits under
           92-709, the specific injury "indemnity"
           statute.   Therefore, the claimant here
           may not have exceeded his statutory
           benefits, depending upon the extent of
           his injury and the length of his healing
           period.
      In this case the Court is further faced with
interpreting and reconciling several inconsistent statutes in
the 1971 code regarding the total number of weeks for which a
claimant may collect benefits.      We note $ 92-708, R.C.M.
 (1947) (amended 1969) provides the total period for which
compensation may be paid cannot exceed - weeks and that
                                           500
compensation shall run consecutively, not concurrently.
Section 92-701, R.C.M. (1947) (amended 1969) provides that
temporary total disabilities are limited to - weeks of
                                                 300
benefits.
      Appellant contends that limiting his benefits to a total
of 500 weeks is internally inconsistent with the Workers'
Compensation Act and with existing caselaw including the
Jones and McDanold cases quoted above. We disagree and find
$ 92-708, R.C.M.   (1947) (amended 1969) controlling.    Other
statutes in 1971 provided for more than 500 weeks of
benefits.    Section 92-702, R.C.M.    (1947) (amended 1969),
provided for an excess of 500 weeks of permanent total
disabj-lity benefits in cases of hardship, but such exception
occurs only under the Board's discretion.     Section 92-704,
R.C.M. (1947) (amended 1969), provided for a maximum of 600
weeks for death benefits.
      In construing a statute, the whole act must be read
together and where there are several provisions or
particulars, a construction is, if possible, to be adopted
that will give effect to it all.      Yurkovich v. Industrial
Accident Board (1957), 132 Mont. 77, 84, 314 P.2d 866, 870.
      Recognizing that under special circumstances, the above
cited statutes can give a worker more than 500 weeks, we find.
none here nor did the Board make an exception under its
statutory discretionary power.      Claimant, as previously
noted, is entitled to no more than 500 weeks of compensation
under S 92-708, R.C.M.     (1947) (amended 1969), totalling
temporary total disability benefits and permanent partial or
permanent total benefits.
      The lower court found the plain meaning of the statutes
clearly acted to deny benefits at a 526 rate week level
already received by the claimant between 1971 and 1975.
However, the court went on to consider the possible effect of
this Court's ruling in McDanold, supra, upon the case. In
view of the fact that the claimant relied upon McDanold
before the lower court and continues to rely upon it before
this Court, we note that there are serious factual
distinctions between McDanold and the case at bar:    (1) as
the Workers' Compensation Court noted, McDanold is an
extremity case of 180 weeks which is significantly less than
the 500 weeks whole-man partial disability entitlement of the
claimant in this case; (2) the lower court stated that the
permanent partial determination in McDanold was for a maximum
benefit period of 1 8 0 weeks; ( 3 ) in McDanold, although
construing basically the same statutes relevant to the
instant case, it does not construe the most important
statute, S 92-708 which limits benefits to 500 weeks
regardless of the class of disability. We find McDanold is
not controlling in the case at bar.
     Here, the interpretation is that claimant was entitled
to up to 300 weeks of temporary total disability benefits and
200 weeks of permanent partial or permanent total disability
benefits. Allowing a combination of the two the claimant is
limited to the maximum number of weeks of benefits being 500
weeks.
     Claimant's second issue is whether the lower court erred
by denying his request for a discretionary award under S
92-702, R.C.M. (1947) (amended 1969), when it ruled that he
did not show he had lost both hands, or both arms, or both
feet, or both legs, or both eyes.      He contends the court
below used this incorrectly strict standard in its refusal to
grant a discretionary award.
     Under the Act in effect at the time of claimant's
injury, additional permanent total disability benefits were
provided for in hardship cases as follows:
           Such compensation shall be paid during
           the period of disability, but for the
           period not exceeding five hundred (500)
           weeks from the date of the injury.
           Provided, that in case of hardship and
           where the Board, in its discretion, deems
           it necessary, the Board may order
           compensation for such further period as
           it decides proper.       Such additional
           compensation, if ordered, shall be
           limited to cases of total disability,
           permanent in character resultinq from the
           loss of - - - - - use of both hands,
                   or the loss of
           or both arms, or both feet, or both leas,
                                                d   .



           or both eyes. (Emphasis added. )
Section 92-702, R.C.M. (1947) (amended 1969).
     The lower court properly denied claimant's request for a
discretionary award as follows:
           The conditions for implementing the
           discretionary   award   do   not   exist.
           Claimant herein has not lost both hands,
           or both arms, or both feet, or both legs,
           or both eyes.
     The statute requires a "loss of" or "loss of use" of
both hands, arms, feet, legs or eyes when implementing a
discretionary award.     The lower court most certainly may
refuse a discretionary award as it did here.
     The last issue on appeal is whether claimant was paid an
incorrectly low rate for his temporary total and permanent
disability benefits.
     Respondent contends this issue was not raised before the
lower court and should not be addressed on appeal. We find
the rate question was generally raised before the Workers'
Compensation Court and is properly before this Court on
appeal.
     Claimant received 26 weeks of temporary total disability
benefits at $60 per week and 500 weeks of permanent benefits
at $55 per week.       Claimant contends he is entitled to
temporary total disability benefits of $65 per week for the
duration of his temporary total disability of between 222 and
300 weeks.    The parties stipulated that the appropriate
temporary total disability rate is $65 per week and that
appears to be the proper rate under S 92-701, R.C.M. (1947)
(amended 1969).     Additionally, claimant contends he was
entitled to the maximum rate for permanent total disability
benefits of $60 per week pursuant to S 92-702, R.C.M. (1947)
(amended 1969), rather than the $55 per week he received.
     Claimant's proper rate of compensation under 5 5 9 2 - 7 0 1
and -2, R.C.M. ( 1 9 4 7 ) (amended 1 9 6 9 ) is based in part on the
number of dependents of claimant and is subject to change
when the number of dependents changes.               We do not have
sufficient evidence in the record to determine claimant's
proper rate.         Therefore, on remand we direct the Workers'
Compensation Court to examine claimant's proper rate of
compensation pursuant to 5 5 9 2 - 7 0 1 and -2, R.C.M.        (1947)
(amended 1 9 6 9 ) .
     Remanded for proceedings consistent with this opinion.




We concur
Mr. Justice William E. Hunt, Sr., dissenting:


      I dissent with the majority decision to limit claimant's
total benefits to 500 weeks.
      I do agree with the majority decision to remand this
case for a more specific determination of claimant's
temporary total disability period but would hold that the
claimant is entitled to temporary total disability in
addition to the 500 weeks of permanent disability benefits he
has already received.
      The court is charged here with reconciling several
inconsistent statutes      in   the   1971 Montana    Workers'
Compensation Code on temporary and permanent disability
benefits and duration of total combined benefits.
      Some 1971 statutes in the Act provided for more than 500
weeks of benefits in spite of the limitation in S 92-708,
R.C.M.    (1947).    For example, S 92-702, R.C.M.     (1947),
provided for an excess of 500 weeks of permanent total
disability benefits in cases of hardship under the Board's
discretion.     Section 92-704, R.C.M. (1947), provided for a
maximum of 600 weeks for death benefits. This indicates to
me that the 500 week limitation is not an absolute maximum
but a general guideline for benefit limits.
      The majority's decision could deprive a permanently
totally disabled claimant from receiving any temporary total
disability benefits. A permanently totally disabled claimant
would be absolutely limited to 500 weeks under         92-708,
R.C.M.    (1947) which is the same as the maximum total
disability entitlement minus hardship factors under 5 92-702,
R.C.M.   (1947).   With this reasoning, it would appear that
only permanently partially disabled claimants or ones who
suffer no permanent disability would be entitled to claim
temporary total disability benefits.
     I do not believe this was the intent of the Workers1
Compensation Act in effect at that time.
     In Yurkovich v. Industrial Accident Board (1957), 132
Mont. 77, 314 P.2d 866, this Court stated:
     In construing a statute, the whole act must be read
     together and where there are several provisions or
     particulars, a construction is, if possible, to be
     adopted that will give effect to it all.

- at
Id.    84,
     The majority opinion would not "give effect to the whole
act" as required by this Court in Yurkovich.      These
statutes can be harmonized by considering S; 92-708, R.C.M.
(1947) to be a general guideline for benefit limits rather
than an absolute maximum. We have further held that:
     When two interpretations are a possibility, one
     favorable to the claimant and the other asainst
     him, the Act must be interpreted - - fashion
                    - -                    in a
     favorable - - claimant.
                to the               Geary v. Anaconda
     Copper Mining Co. (1947), 110 Mont. 485, 489, 188

     The majority's interpretation is not consistent with
this mandate.
     I would hold that appellant is entitled to up to 300
weeks of temporary total disability benefits and the 500
weeks of permanent partial or permanent total disability
benefits he has already received.      Such a holding would
resolve the inconsistencies in the 1971 statutes and also be
    keeping with the             Yurkovich and Geary cases.
     Appellant, for his second issue, contends the trial
court used an incorrectly strict standard to determine that a
discretionary award under S 92-702, R.C.M. (1947) would not
be granted.
     It is apparent from the trial court's finding that it
did not consider the full standard. Section 92-702, R.C.M.
(1947) requires a "loss of" - "loss of use" of both hands,
                    --       or - - -
arms, feet, legs or eyes when implementing a discretionary
award.
     While the trial court may refuse a discretionary award,
I would hold the lower court erred by not considering the
"loss of use" standard in determining the existence of
hardship. This issue should be remanded to the trial court
for a determination of eligibility of hardship benefits
utilizing the statutory standard of "loss of" or "loss of
use" of both hands, or both arms or both feet or both legs,
or both eyes pursuant to § 92-702, R.C.M. (1947).
     I would reverse and remand the case.
                              1



      I concur with the dissent of Mr. Justice William E.

Hunt, Sr.
                               .--
                                /-,




                                          Justice
