                               No. 8 5 - 5 5 1
               IN THE SUPREFE COURT OF THE STATE OF MONTANA
                                   1987




LEON J. ODENBACH,
                Claimant and Appellant,


BUFFALO RAPIDS PROJECT, d/b/a
IRRIGATION PROJECT, Employer,
       and
STATE COMPENSATION INSURANCE FUND,
                Defendant and Respondent.




APPEAL FROM:    The Workers' Compensation Court, The Honorable
                Timothy Reardson, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Lloyd E. Hartford, Billings, Montana

       For Respondent:
                Crowley Law Firm; Terry G. Spear, Billings, Montana




                                    Submitted on Briefs: April 24, 1 9 8 6
                                       Decided:   January 13, 1987




                             a *,u Clerk
                                                    4
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

        Leon Odenbach was injured in an industrial accident in
May 1978.        In December 1984, Mr. Odenbach filed a petition
with the Workers' Compensation Court essentially requesting
the conversion of all his future permanent total disability
benefits into a lump sum payment.          The Workers' Compensation
Court awarded Mr. Odenbach a partial conversion of future
benefits.       Mr. Odenbach appealed and the State Compensation
Insurance Fund cross-appealed.          We affirm the Workers' Com-
pensation Court in part, reverse in part, and remand for
proceedings pursuant to this opinion.
      The issues presented to us are:
        1.    Can the 7% discount of lump sum conversion of future
permanent total disability benefits found in 5 39-71-741,
MCA, as amended, be applied to claims arising out of injuries
occurring before April 15, 1985, or would that application
violate a claimant's constitutional rights?
        2.    Can the procedural requirements in 5 39-71-741, MCA,
as amended, be applied to claims arising out of injuries
occurring before April 15, 1985?
        3.    Did the Workers' Compensation Court err in granting
in part and denying in part Mr. Odenbach's request for a lump
sum   conversion of       his   future permanent   total   disability
benefits?
      Leon Odenbach (claimant) suffered an industrial injury
arising out of and in the course of his employment with
Buffalo Rapids Project on May 10, 1978.             Mr. Odenbach is
permanently totally disabled.            Buffalo Rapids Project was
enrolled with the State Compensation Insurance Fund            (State
Fund)    on    the date   of    the   injury.   State Fund   accepted
liability for Mr. Odenbach's claim and began paying benefits
in June    1978.     On December 13, 1984, claimant filed his
petition for hearing with the Workers' Compensation Court
requesting a lump sum award of $80,000 to purchase an annui-
ty.   In addition, the claimant requested a lump sum award of
$17,230.25 for the following purposes:
      a.   $6,723.00 to retire his mortgage on his home;
      b.   $2,660.00    to   replace   his   refrigerator,   kitchen
range, washer and dryer;
      c.   $4,324.28 to pay off the installment contract on his
energy efficient windows;
      d.   $1,874.97 to pay off the installment contract on his
new furnace;
      e.   $768.00 to complete remodeling of his basement, and;
      f.   $880.00 to replace his dentures.
The Workers' Compensation Court found that the claimant was
entitled to a lump sum a.ward of $6,199.25 to pay off the
installment contracts on his energy efficient windows and his
new furnace.       In ad-dition, the claimant was entitled to an
annual lump sum sufficient to cover the aggregate amount of
his existing insurance policies which were currently costing
the claimant $217 a month.       Finally, the claimant was found
to be entitled to an $880 lump sum to replace his dentures.
The Workers' Compensation Court found that the claimant was
not entitled to the remaining lump sum amounts requested for
his house because:
      These items and amounts are not necessary for the
      claimant to sustain himself financially, and thus,
      do not fall within the purview of MCA 39-71-741.
      The Workers' Compensation Court also stated regarding
the requested lump sum for the a.nnuity that:
        Claimant is not entitled to a lump sum. award for
        the purchase of an annuity.   This Court has rou-
        tinely denied all annuity requests, reasoning that
        "an annuity request is analogous to the claimant's
        request to put an advance of his disability award
        'on interest.'" Stelling, WCC No. 8412-2757 (filed
        June 27, 1985), citing Kent 5 Siefert, 158 Mont.
        79, 81, 489 P.2d 104 (1971).
        Senate Bill 281 became effective on April 15, 1985.
Sena.te Bill 281 amended 5 39-71-741, MCA, by (1) creating new
criteria for establishing the need for a lump sum award; a.nd
(2).    requiring that lump sum payments of permanent total
disability benefits be discounted at 7% for each year of the
estimated     cornpensa.tion period.    The parties have       raised
various      constitutional    and     legal       issues   regarding
§    39-71-741, MCA.
                                  I

        Can the 7% discount of lump sum conversions of future
permanent total di.sability benefits found in 5 39-71-741,
MCA, as amended, be applied to claims arising out of injuries
occurring before April 15, 1985, or would that application
violate a claimant's constitutional rights?
        This Court has recently decided this issue. In Buckman
v.     Montana Deaconess Hospital and State Compensation Fund
(Mont. 1986), - P.2d -, 43 St.Rep. 2216, we essentially
held that the discount provision of            $   39-71-741, MCA, a.s
amended could not be applied to a workers' compensation
injury which occurred prior to April 15, 1985, the effective
date of this statute.
        Accordingly, we hold    that the 7% discount provision
found in 5 39-71-741, MCA, cannot be applied to the award for
P r Odenbach's injury which occurred prior to April 1-5, 1985,
 4.
the effective date of the discounting provision.
       Can the procedural requirements in    §   39-71-741, MCA, a s
                                                                  .
amended, be applied to claims arising out of injuries occur-
ring before April 15, 1985?
       Again, Buckman controls this issue:

       We therefore conclude that the amendments made in
       1985 to Sec. 39-71-741(2), MCA, cannot be applied
       in considering the Buckman application for a
       lump-sum conversion.   We note this is consistent
       with the 1985 amendments as there is no provision
       in those amendments stating that any portion should
       be applied retroactively, with a single exception
       of the discount provision.
Buckman, - P.2d at -, 43 St.Rep. at 2219.              This holding
is consistent with    §   1-2-109, MCA, which provides:      "No law
contained in any of the statutes of Montana is retroactive
unless expressly so declared."
       Accordingly, the procedural requirements in     §   39-71-741,
MCA, as amended, cannot he applied to Mr. Odenbachls injury
which occurred before April 15, 1985, the effective date of
the procedural provisions.


       Did the W-orkerslCompensation Court err in granting in
part and denying in part Mr. Odenbach"           request for a lump
sum    conversion of his     future permanent total disability
benefits?
       We rema.nd this issue for reconsideration by the Workers1
Compensation Court in light of Buckman as well as this opin-
ion.    In its reconsideration, the Workers' Compensation Court
should apply the statutes and caselaw in effect on the date
of Mr. Odenbachls injury.
       Affirmed in part, reversed in part, and remanded. for
proceedings pursuant to this opinion.



                                 5
We Concur:
