                                 No. 82-371
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1984



 ROBERT MOILAZWN ,
               Claimant and Appellant,
     -vs-
MARBLES MOVING   &   STORAGE, Employer,
     and
STATE COMPENSATION INSURANCE FUND,
               Defendant and Respondent.




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


COUNSEL OF RECORD:
      For Appellant:
               Hoyt & Trieweiler; John C. Hoyt argued, Great Falls,
               Montana

      For Respondent :

               John Sullivan argued, Helena, Montana
               Robert J. Campbell, Helena, Montana



                                 Submitted: January 12,
                                   Decided: January 3, 1985



~iled: JAN 3 - I985
Mr. Justice Daniel J.          Shea delivered. the Opinion of the
Court.


       Claimant Robert Moilanen appeals an order of the Work-
ers' Compensation Court concluding that he was only temporar-
ily    totally      disabled   rather      than       permanently      totally
disabled.       In addition, claimant contends that the trial
court improperly refused his request for a lump sum conver-
sion of future beneFits, and that the trial court failed to
rule on claimant's request that the statutory 20 percent
penalty be invoked based on a contention that the insurer
unreasonably failed to pay benefits.
       We reverse the trial court on the disability issue and
hold that claimant proved he was permanently disabled as he
was not required to undergo back surqery to determine whether
his condition would change.           The question that now must be
decided by the trial court is whether claimant is permanently
partially disabled as the State Fund employer contends, or
whether he is permanently totally disabled as the claimant
contends.        However, we     affirm        the    trial   court    in   its
conclusion that claimant in any event was not entitled to a
lump    sum   payment     because   he    had    bypassed      the    required
statutory procedures of 5 39-71-741, MCA, which requires a
written    request    for a    lump      sum    to be presented        to the
Divisjon      for   its   determination.         We    further agree that
substantial evidence supports the trial court's conclusion
that claimant's application for a lump sum was not sufficient
to move the trial court's discretion in any event.                     On the
issue of whether claimant is entitled to the 20 percent
statutory penalty under 5 39-71-290, MCA, for unreasonable
refusal to pay benefits, we remand for a determination of
whether the empioyer unreasonably refused to pay disability
benefits when it notified claimant that it would reduce his
benefits from temporary total benefits to that of permanent
partial disability benefits.      Although the trial court ruled
that the State Fund had wrongfully terminated the temporary
total benefits, it did not rule on the question of whether
this action was an unreasonable termination.
     Claimant injured his back on September 4, 1979, while
working for Marbles Moving   &    Storage Company of Great Falls.
State Fund, the carrier for the employer, accepted liability
and began paying claimant temporary total disability benefits
beginning September 6, 1979.         Claimant was never able to
return to work since that time and the primary issue is
whether he should be required to submit to surgery before a
determination can be made that he is permanently totally
disabled.
     Back and leg pain prevented claimant from returning to
work, and. in April 1980, a doctor performed a myelogram.
This test showed essentially normal conditions except that a
large cyst was disclosed on the nerve root in the I-urnbar
region of claimant's back.       Claimant had an edverse reaction
to the myelogram and he was hospitalized for nine days be-
cause of complications.
    Claimant continued to have pain and could not work as a
furniture mover.   The State Fund requested that a Great Falls
evaluation panel determine his condition.      The panel consist-
ed of two medical doctors,         registered physical therapist
and a clinical psychologist.      The panel examined claimant on
December 18, 1980.   They used an evaluation guide that rated
disability based on loss of function of the limb or part of
the body affected.   A majority of the eval-uation pznel found
no objective or neurol-ogical reason for claimant's continued
pain, and, using the eva.11xa.tionguid.e, the panel crave him a
zero impairment rating.   The clinical. psychol.ogist , however,
differed with the concl..usionof zero impairment, and further
stated that clai-mant's pain and inability to provide for his
family produced anger and frustration that resulted. in ex-
treme functional disorders.      Although the psychologist did
not agree with the panel's conclusion of zero impairment, she
did not provide an opinion on what the impairment rating
would he.
     A short time Later, Dr. Johnson examined claimant but he
found no neurol-ogicalproblem.    Nonetheless, claimant contin-
ued to have severe pain and a second myelogram was performed.
It, too, indicated a normal back condition.     But a few months
later another doctor, Dr. Nelson, examined claimant, and
found that claimant had a herniated disc in the lumbar area.
In his report to the claimant's attorney he suggested that
claimant would need surgery.      Dr. Nel-son later stated that
surgery would decrease 45 percent of claiment's back pain and
70 percent of cl-aimant's leg pain, but that without surgery,
claimant's condition would be permanent.
     Yet another doctor examined claima.nt, and he also con-
cluded that claimant had a herniated disc.        Dr. Snider, an
orthopedic surgeon, reported that claimant had a possible
herniated disc in the lower lumbar area.       The doctor rated
claimant's physical impairment at 5 percent as compared to
the whole h0d.y.     However, Dr.    Snider did   not recommend
surgery.    Rather, he recommended use of a back support and
attendance at a "back school."
     From the time of his        injury and   continuing to the
present, claimant has received temporary total disability
benefits.    While the case was pending before the Workers'
Compensation Court, the State Fund, based on medical reports
that claimant was not temporarily totally disabled, sent
claimant notice that his benefits would be reduced to perma-
nent partial benefits.         Hcwever, before his benefits were
actually reduced, the Workers' Compensation Court ruled on
the issues, the effect of which maintained claimant's status
receiving temporary total d-isability benefits.
     Because     the   claimant    was   awarded     temporary   total
disability this Court questioned whether such an award is
final because of its temporary nature.             We therefore asked
the parties to brief the question of whether an order is
fjnal when one is awarded temporary total disability benefits
rather    than   permanent    total   disability    benefits.    Both
parties have concluded that such an order is appealable.
Because the Workers'         Compensation Act requires a liberal
construction to effectuate its purpose, and because we must
recognize this requirement in our own procedural rules gov-
erning appealability of issues, we conclude also that the
question is appealable.        We therefore proceed to the remain-
inq issues, the first being the question of whether claimant
proved he was permanently totally disabled.
     In ruling on the extent of disability issue, the trial
court held that cl-aimant should be continued on the status of
temporary total disability.           The court stated that "the
evidence in this case clearly establishes this claimant -
                                                        is

- as far restored as the permanent character of his inju-
not
ries will permit. "     The trial court relied on the testimony
of Dr. Nelson, the report of Dr. Snider, the reports of the
psychologists, and the testimony of the claimant.           The court
stated:
             "Dr. Nelson testified that his objective
             findings indicate disc problems and the
             probable need for surgery in the future
             to rel-ieve the claimant's back symptoms.
             Dr. Snider recommended a back school, and
             use of an abdominal support.     The psy-
             chologists indicate a need for therapy to
             assist the claimant with his depression.
             The claimant testified he is skeptical-
             about surgery, but he did not rule it out
             completely as a possible solution for his
             continued pain. Under these circumstanc-
             2s the claimant continued to be entitled
             to temporary total disability benefits
             and this court is unable to make a deter-
             mination of permanent total disability. "
       Although it is true the claimant did not rule out back
surgery, the cla.imant argues that substantial evidence sup-
ports a finding that he is permanently totally disabled and
that he should not be required to undergo back surgery to
prove this fact.     In reco~mendingback surgery, Dr. Nelson
predicated that without it claimant's condition was perma-
nent.    And claimant was justifiably skeptical about undergo-
ing ba.ck surgery.   The prognosis was that even with surgery,
at least some pain would continue, and claimant justifiably
had concern because of the complications that had developed
after the performance of the first myelogram.
       Dfost courts do not require a claimant to submit to
surgery in a situation where it has been reasonably refused.
Clemons v. Roseburg Lumber Co. (Or.~pp. 1978), 578 ~ . 2 d429;
K.   Lee Wil-liams Thea-tres v. Mickle   (0kla. 19491, 205 P.2d
513.    Also see 1 Larson, Workmen's Compensation T,aw, S 13.22
(1978).    Without surgery the claimant's condition is perma-
nent and. there is not even a contention that claimant unrea-
sonabl-y refused to have surgery.    We hol.2 that claimant was
not required to undergo back surgery before a determination
could be made on the extent of his disability.
      Nor does Dr. Snider's testimony indicate that claimant's
hack injury was anything less than permanent.                Though he
recommended a back school and use of an abdominal support,
the recommendations were not made because of         2   belief that
claimant would, with the best results, be able to enter the
normal labor market again.        His recommend.ations were simply
made with the belief that claimant's symptoms would be all-e-
viated to some extent--in effect, that these measures might
help claimant live with his condition.         His condition, and
the   symptoms    caused    by   this   condition,   would     not   be
eliminated.
      Finally,   the   psychol~ogists indicated      that     claimant
needed more therapy for his depression, and there is no doubt
he was depressed.      Much of this depression was caused by
cl.aimantls inabil-ity to accept his condi-tion and the conse-
quences of not being able to support his family as he had in
the past.     Although the therapy they recommended may have
helped claimant deal with his back condition, the therapy
would not heal claimant's back condition.
      The result is that claimant would, in any situation,
have a permanently injured back.           The real issue is not
whether he was permanently disabled, but how that permanent
disability may have affected his ability to function in the
normal labor market.       The trial court did not rule on all the
statutory factors affecting a c1a.i~.
                                    for permanent disability,
and the factual decision of whether claimant is totally or
partially disabled is not one for this Court to make in the
first instance.     The trial court must therefore make these
factual determinations.
      Claimant next contends he was entitled to a lump sum
payment of future disabi1it.y payments under S 39-71-741, MCA,
and that the trial court erred in refusing to allow it. The
statute does not apply where the award is a temporary one.
Therefore, based on the trial court's ruling that claimant
should     continue     receiving      temporary     total    disability
benefits, claimant would not in any event be entitled to a
lump sum payment, and the trial. court was not required to
reach this issue.        Nonetheless, the trial court did reach
this issue and we agree with the conclusions.                First, and
controll-ing here, S 39-71-741 requires that a claimant submit
a written plan to the Division setting forth the reasons for
the lump sum request and the plan for using the lump sum if
granted.    Claimant bypassed this statutory procedure and this
was sufficient for the court to deny the request for a lump
sum payrcent even if the court had ruled that claimant's
disability was permanent total.          Second, the plan submitted
was insufficient on its face to move the court's discretion
because    it was     nothing more     than a vague plan        for the
claimant to get into the hat blocking business.               This plan
was   insufficient     for    either   the   Division   or    later    the
Workers' Compensation Court to base a lump sum payment.
      Finally,   in    asking    for   the   20    percent   penalty    in
  39-71-2907 PICA, for unreasonable refusal to pay benefits,
            A
the claimant argues that the trial court was required to
award this penalty.          Claimant bases his contention on the
decision by the State Fund to terminate his temporary total-
disability and pay him only permanent partial benefits, even
though claimant suffered no reduction in benefits because
before the reductions were put into effect, the trial court
ruled that temporary total benefits should continue.                   The
trial court did rule that the State Fund wrongfully terminat-
ed. claimant but did not rule on the necessary question of
whether     this    constituted     an    unreasoneble    refusal      to   pay
benefits.      We therefore remand for a determination of this

issue.
     The Workers'          Compensation Court        is affirmed      in part,
reversed     in    part,    and   the    case   is   remanded   for    further
proceedings.




We Concur:




         Chief Justice




            Justices
Mr. Justice Frank R . Morrison, Jr., concurring in part and
dissenting in part.

     The Workers1 Compensation Court found that claimant was
totally disabled but that his disability was "temporary" for
the reason that back surgery might improve his condition.               I
agree with        the majority   opinion that claimant need           not
undergo hack surgery and is ready to be evaluated.                    The
Workers1 Compensation Court         found claimant to be totally
disabled    and    I would    affirm this holding but reverse a
determination that surgical improvement could improve his
status as being irrelevant.
     The issue of total disability was resolved by the lower
court.     The case should be remanded for a determination on
whether    claimant    is    entitled   to   a   lump   sum   after   the
      Mr. Justice Fred J. Weber dissents:
       I respectfully dissent from the opinion of the majority.

In    concluding that     the    defendant proved     he was    totally
disabled a.nd reversing the District Court, the majority has
not applied the well-settled standard of review for factual
determinations of the Workers' Compensation Court.
      The majority has quoted from the Workers' Compensation
Court's    findings regarding Dr. Nelson's testimony concerning
objective findings of disc problems and the probable need for
surgery, the psychologist's indication of need for therapy to
assist with depression, and the testimony of the claimant
that he is skeptical about surgery but did not rule it out.
Immediately preced.ing that quoted portion of the             findings,
the Workers' Compensation Court also stated:
      "The evidence in this case clearly establishes this
      claimant is not as far restored as the permanent
      character of his injuries will permit."
In view of that conclusion              by the Porkers' Compensation
Court, it was appropriate for the court to conclude that the
claimant   remains    entitled     to    temporary   total   disability
benefits and that the Workers' Compensation Court cannot make
a determination of permanent total disability.

      The cited evidence constitutes substantial evidence to
support the conclusion of the lower court tha.t the claimant
is not as far restored as the permanent character of his
injuries will permit.           I would hold there is substantial
evidence to support the findings and conclusions on the part
of the Workers' Compensation Court.            See Lamb v. Missoula
Imports, Inc.    (Mont. 1984), 684 P.2d 498, 499, 41 St.Rep.
1414, 1416.     That holding would         in no way    forecl-ose the
defendant from proving at some future time that his recovery
has     proceeded    as   far as possible so that a permanent
award should be made. I would affirm the determination of the
Workers' Compensation Court.




Mr. Justice L. C. Gulbrandson:
     I join in the foregoing dissent of Mr. Justice Weber.




                                  /e,&
                                 Justice
                                                        *




Mr. Chief Justice Frank I. Haswell:

      I join in the foregoing dissent of Mr. Justice Weber.




                                 Chief Justice
