                                        No.    90-296

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                              1991



RONALD F. HILBIG,
               Claimant and Respondent,
     v.

CENTRAL GLASS COMPANY,
               Employer,
     and
STATE COMPENSATION INSURANCE FUND,
               Defendant and Appellant.



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


COUNSEL OF RECORD:
               For Appellant:
                       Honorable Marc Racicot, Attorney General, Helena,
                       Montana; R. Scott Currey, Agency Legal Services
                       Bureau, Helena, Montana; James Scheier, Agency
                       Legal Services Bureau, Helena, Montana
               For Respondent:
                       R. V.       Bottomly, Attorney at Law, Great Falls,
Montana


                                         Submitted on Briefs:      March 28, 1991
               AUrl   -I   1991
Filed:         cc(>Gr,;i!L
         CLERK OF S'clPFIEF.jiE COURi
                                                        Decided:   ~ u g u s t1, 1991

            STATE OF MBI'ITANA
Justice Terry N. Trieweiler delivered the opinion of the Court.
     This is an appeal from the Workers Compensation Court s order
awarding attorney fees to the claimant based upon his recovery of
benefits for domiciliary care. We affirm in part and remand to the
Workers' Compensation Court for further consideration.
     The issues are:
     1.   Did the Workers' Compensation Court err in awarding
attorney fees to the claimant based upon his recovery of benefits
for domiciliary care?
     2.   If the claimant was entitled to an award of attorney
fees, what was the proper rate of payment?
     The claimant was injured on November 17, 1983, during the
course of his employment with Central Glass Company when he fell
from the scaffolding on which he was working and sustained severe
head injuries.   The defendant, State Compensation Insurance Fund,
insured Central Glass Company against workers' compensation claims
at the time of claimant's injury.
     After some initial disagreement, the State Fund conceded that
the claimant was totally disabled and has paid him permanent total
disability benefits. However, a dispute arose over the claimant's
entitlement to a lump sum advance of his benefits, and a petition
was filed on the claimant's behalf on July 18, 1986.     During the
course of those proceedings, and based upon evaluations of the
claimant by a clinical psychologist, a neurologist, and a home
health care nurse, the claimant also made a claim for 24-hour-a-day
domiciliary care.   That claim was denied by the defendant.
     The claimant's    case went to trial before        the Workers'
Compensation Court on January 26, 1987.       On June 20, 1988, that
court entered its judgment denying the claimant's claim for a lump
sum advance of benefits, but awarding the claimant benefits for
domiciliary care during the period of time from December 18, 1986,
through April 8, 1987.    Although the court, at that time, found
that the claimant's condition was "not improving but was likely to
decline" and that home health care services "are necessary and an
essential component of claimant's care," no provision was made for
the payment of benefits for home health care beyond April 8, 1987.
     That judgment by the Workers' Compensation Court was appealed
by the claimant to this Court.    On August 11, 1989, we issued our
decision affirming the trial court's denial of the claimant's claim
for a lump sum advance and remanding this case to the Workers'
Compensation Court for further consideration of the claimant's
entitlement to benefits for domiciliary care after April 8, 1987,
and in the future.    Hilbig v. Central Glass Co. (1989), 238 Mont.
375, 777 P.2d 1296.
     On remand, without the benefit of or need           for further
evidence, and based upon the record from the prior proceeding, the
trial court entered summary judgment for the claimant; ordered the
defendant to pay the claimant's wife $7.50 an hour, 24 hours a day,
from April 8, 1987; and also ordered the defendant to pay for the
claimant's health club membership, which it found to be necessary
for the claimant's further therapy and treatment. The claimant was
awarded attorney fees pursuant to   §   39-71-612, MCA (1983).
     The Workerst Compensation Court found that the claimant's
award of benefits for domiciliary care subsequent to April 8, 1987,
resulted from this Courtts decision, and ordered the defendant to
pay the claimant's attorney fees in an amount equal to 40 percent
of the value of benefits for domiciliary care due from the
defendant after April 8, 1987.
     On appeal, the defendant argues that it has voluntarily paid
benefits to the claimant for domiciliary care; the recovery of
those benefits did not result from a decision of the Montana
Supreme Court, nor the Workerst Compensation Court; and therefore,
the claimant is not entitled to an award of attorney fees.   In the
alternative, the defendant argues that if the claimant is entitled
to an award of attorney fees, then that award should be limited to
the 25 percent rate which is provided for in the claimant's
attorney fee agreement in those cases which have not gone to
hearing.
     In order to address the issues raised by the defendant, it is
first necessary to set forth the rules that pertain to the recovery
of attorney fees in this case.
     The claimant was injured on November 17, 1983, and the statute
which was in effect on the date of his injury determines the
attorney fees to which he is entitled.   Cuellar v. Northland Steel
(1987), 226 Mont. 428, 736 P.2d 130. That statute is 5 39-71-612,
MCA (1983).   It provided in relevant part as follows:
     1.   If an employer or insurer pays or tenders payment
     of compensation under chapter 71 or 72 of this title, but
     controversy relates to the amount of compensation due and
     the settlement or award is greater than the amount paid
     or tendered by the employer or insurer, a reasonable
     attorney's fee as established by the division or the
     workers' compensation judge if the case has gone to a
     hearing, based solely upon the difference between the
     amount settled for or awarded and the amount tendered or
     paid, may be awarded in addition to the amount of
     compensation.
     In Wight v. Hughes Livestock Company, Inc. (1983), 204 Mont.
98, 664 P.2d 303, we held that the purpose of the aforementioned
statute was to provide a "net recovery of compensation benefitsv
to the claimant and that therefore, there would be a ''strong
presumption" that fees to successful claimants should be based upon
their contracted-for obligation with their attorney. In this case,
the claimant's fee agreement with his attorney provided that he
would pay him at the following rates:
     (a) For cases which have not gone to hearing before the
     Workers' Compensation Court, TWENTY-FIVE PERCENT (25%)
     of the amount of benefits the claimant receives due to
     the efforts of the attorney;

     (b) For cases which go to a hearing before the Workers'
     Compensation Judge, THIRTY-THREE PERCENT (33%) of the
     amount of benefits the Client receives from an order of
     the Workers' Compensation Judge;

     (c) For cases which are appealed to the Montana Supreme
     Court, FORTY PERCENT (40%) of the amount of benefits the
     Client receives based on the Order of the Supreme Court.
     In this case, the defendant argues that because it offered to
pay a portion of the domiciliary benefits that claimant was
eventually awarded after the trial but before the trial court's
judgment was actually entered, the claimant is not entitled to an
award of attorney fees at all.   The defendant's position requires
an analysis of the following sub-issues:
     1.    Whether the tender or payment of workers1 compensation
benefits after trial but before judgment is entered can preclude
a claim for attorney fees;
     2.    Whether a mere Itoffer"without actual payment serves any
purpose under 5 39-71-612, MCA (1983); and
     3.    What, if any, domiciliary benefits had been paid by the
defendant to the claimant prior to this Court's decision on
August 11, 1989.
                        FACTUAL BACKGROUND

     This case went to trial on January 26, 1987. It is clear from
the pretrial order and the proposed judgments filed by both parties
that the claimant's entitlement to benefits for domiciliary care
was an issue at the time of trial and the defendant denied any
liability for those benefits.
     One of the issues set forth in the pretrial order was as
follows:
     6.   Whether the State Fund has paid all medical expenses
     of which payment is required pursuant to Section
     39-71-704, MCA.
     In a brief filed two and one-half months after trial, the
defendant acknowledged that the issue regarding medical expenses
was based on the claimant's contention that he was entitled to
benefits for past and future domiciliary health care pursuant to
our decisions in Carlson v. Cain (1985), 216 Mont. 129, 700 P.2d
607, and Larson v. Squire Shops, Inc. (1987), 228 Mont. 377, 742
P.2d 1003.   The State Fund also acknowledged that at the time of
trial the claimant sought compensation for a health care attendant
while his wife was at work, and payment for his wife's services
during the remaining hours of the day while she attended to his
needs.
     On April 8, 1987, the defendant wrote to the claimant's
attorney and offered to pay for a home health care attendant while
the claimant's wife was at work, and also offered to pay someone
to occasionally substitute for the claimant's wife so that she
could take a periodic break from the care that she provided to her
husband 16 hours a day during the week and 24 hours a day on
weekends.   The defendant's offer was for a temporary trial period
and did not include 24-hour-a-day service as had been demanded by
the claimant. The claimant responded that the offer was inadequate
and that he would not drop his claim based on the offer, but would
welcome immediate payment of any amount.   (Payment to a third party
for eight hours per day of care was commenced on July 1, 1987.)
     On the basis of that offer, the defendant asked the Workers'
Compensation Court to conclude that future home health care was no
longer an issue.   However, the court refused to do so.     In that
motion, the defendant acknowledged that the pretrial order issue
regarding medical services was based on the claimant's claim that
"his wife should be paid for providing domiciliary care services
the remaining 16 hours a day every day and during weekends."
     The State Fund then concluded, and still contends, that its
offer to pay a professional attendant eight hours a day somehow
eliminated the issue of whether claimant's wife was entitled to
payment for her services during the remaining 16 hours of every day
and for the 24 hours of service she provided during vacation time,
weekends, and holidays.   At that time, the only testimony on the
subject of home health care had come from Shelly Oksness, a nurse;
Dennis W. Dietrich, M.D., a neurologist; and Edward Shubat, Ph.D.,
a clinical psychologist. All were of the opinion that the claimant
needed an attendant to assist him in caring for himself on a
24-hour-a-day basis.
     On May 5, 1987, the Workers' Compensation Court denied the
defendant's motion, and ruled that whether or not the claimant was
entitled to future domiciliary care depended on the evidence that
had been presented at the time of trial and through subsequent
depositions.
     On May 18, 1987, the defendant filed its Proposed Findings of
Fact, Conclusions of Law, and Order.      It is clear from those
proposals that the defendant was still contending in court that it
owed the claimant nothing for domiciliary care.    In its proposed
order, the defendant asked the court to find that Kathleen Hilbig
did not meet the factors set out in Larson, supra, for payment of
domiciliary care to a family member, and that the claim for payment
for her services should be denied.
     In his Proposed Findings, Conclusions, and Order, the claimant
proposed that the court find that his wife was providing necessary
home health services; that she was qualified by education and
training to do so; and that she was entitled to be reimbursed for
her past and future services at the rate of $7.50 an hour for 16
hours a day on those days that she worked outside the home, and for
24 hours a day on weekends, holidays, and during vacations.

     In its Findings, Conclusions, and Judgment, which were entered
on June 20, 1988, the trial court found that the claimant's severe
head injury had resulted in an organic brain syndrome which left
him permanently totally disabled and unable to care for himself.
The court found that the claimant's condition was not improving,
but was likely to decline, and that as a result of his injury he
experienced uncontrolled seizures, memory loss, lack of judgment,
and an inability to handle daily situations.
     Based upon these findings, the trial court found that home
health care services were a necessary element of the claimant's
health care, and that someone should be with him 24 hours a day.
The court went on to find that Kathleen Hilbig, the claimant's
wife, was qualified by her education and training to provide home
health care, and that the claimant should be compensated for
domiciliary care at the rate of $7.50 per hour, 24 hours a day,
from December 18, 1986, until April 8, 1987.
     In spite of the above findings, the Workers1 Compensation
Court made no provision for payment for home health care or
domiciliary benefits after April 8, 1987.
     The claimant petitioned the Workers1 Compensation Court to
revise its order by providing payment for domiciliary care so long
as it was necessary.   However, in a brief filed in the Workers1
Compensation Court on July 8, 1988, the defendant continued to
oppose the claimant's request and suggested that the court require
the claimant to file a new petition for any future benefits related
to domiciliary care.        The claimant's post-trial petition was
denied.
      The trial court's denial of the claimant's post-trial petition
was appealed to this Court.         It was pursuant to that appeal that
this case was remanded to the Workers' Compensation Court for
further consideration of the claimant's entitlement to benefits for
home health care beyond April 8, 1987. Hilbiq, 777 P.2d 1296.         In
our opinion, we pointed out the Workers1 Compensation Court's
conclusion that:
      The defendant State Fund has acknowledged claimant's
      entitlement of domiciliary benefits of $7.50 per hour for
      eight hours a day to claimant's wife, beginning April 8,
      1987, but not before that date.
      We pointed out that "[nlo other justification appears in the
court's order why home health care benefits were limited to a four
month period or the need for future domiciliary care."
      We recognized the claimant's post-trial petition and its
denial, but concluded that "[i]t is not clear from the court's
findings why it placed this cutoff date on benefits payable to Mrs.
Hilbig. I'
      It was for these reasons that we remanded this case to the
Workers'     Compensation   Court    to   conduct   whatever   additional
proceedings were necessary to determine the claimant's entitlement
to domiciliary care after April 8, 1987.
      Upon remand, and after considering our decision, the Workers1
Compensation Court concluded that no further hearing was necessary.
No additional evidence was offered by the parties, and none was
requested by the court.
     Instead, both parties filed motions for summary judgment.
     The defendant's motion was based upon its contention that on
July 1, 1987, it began paying a third party to provide day care to
the claimant on an eight hour per day basis, and that in March 1989
it authorized payment to Mrs. Hilbig at the rate of $7.50 per hour
for the care that she provided.     (However, payment of that amount
to Mrs. Hilbig was conditioned on a stipulation by the claimant
that the issue of home health care was moot and need not be
considered as part of the Supreme Court appeal.        It is not clear
what, if anything, was paid to Mrs. Hilbig for her services prior
to this Court's decision on August 11, 1989.)
     Interestingly, in its brief in support of its motion for
summary judgment, the defendant pointed out to the trial court that
Dr. Dennis Dietrich, who testified on February 27, 1987, and Dr.
Edward Shubat, who testified on January 20, 1987, were both of the
opinion that claimant needed 24-hour-a-day care.         However, the
defendant then pointed out that on the basis of those opinions it
agreed to pay for home health care on an eight-hour-a-day basis.
     The claimant also moved for summary judgment. The claimant's
motion was granted and the defendant's motion was denied.
     In its order granting the claimant's motion for summary
judgment, the Workers' Compensation Court concluded that the
claimant had prevailed before the Workers' Compensation Court and
before   the   Montana   Supreme   Court,   and   indicated   that   its
reconsideration of the claimant's entitlement to benefits for
domiciliary care beyond April 8, 1987, was a direct result of this
Court's instructions that that issue be reconsidered. The Workers1
Compensation Court ordered that the defendant pay Mrs. Hilbig $7.50
an hour for 24 hours a day from April 8, 1987, so long as
domiciliary care was necessary, and furthermore, that the defendant
pay for the claimant's health club membership.
        In spite of the defendant's protestations to the trial court
and to this Court that it had voluntarily paid those benefits which
were ultimately ordered by the Workerst Compensation Court, it
apparently refused to do so even after the trial court's order
granting the claimant summary judgment.
        That order was entered on January 17, 1990. Over eight months
later, on September 27, 1990, the claimant filed an application for
a writ of execution with the Workers' Compensation Court.     In the
affidavit in support of that application, the claimant's attorney
indicated that payment for Kathleen Hilbig's services was first
received on August 8, 1990, and that even then the State Fund paid
substantially less than it was ordered to pay by the Workerst
Compensation Court.      Pursuant to that application, a writ of
execution was issued by the Workerst Compensation Court, and
subsequently, the balance owed by the State Fund, pursuant to the
Workers' Compensation Court's decision and judgment, was apparently
paid.
        The point of this long recitation of facts is simply this:
     1.      Even though the need for 24-hour-a-day domiciliary care
was documented and demand for payment of those benefits made,
payment was neither offered, tendered, nor made prior to the
original trial on January 26, 1987.
     2.     Even after trial and the undisputed testimony of three
health care providers that domiciliary care was necessary for the
claimant on a 24-hour-a-day basis, the defendant still only offered
to pay on an eight-hour-a-day basis, and then made every effort to
have the claimant's petition for payment of the balance due
dismissed.
     3.     Long after this case was tried, appealed, remanded, and
summary judgment on remand was entered, the defendant still refused
to pay the full amount that it had been ordered to pay to the
claimant for his wife's services. That amount was only paid after
a writ of execution was ordered. That writ of execution could not
have been issued had the Workers1 Compensation Court not re-assumed
jurisdiction over this matter, based upon the remand of this case
by this Court.
     4.     There is every indication that the defendant would not
have voluntarily paid for future domiciliary care provided by Mrs.
Hilbig    had   it not   been   ordered   to do   so by   the Workers1
Compensation Court after remand from this Court.
                                   I.
                                   -
     The first issue is whether the defendant's partial offer,
tender, or payment of the benefits which were ultimately adjudged
due enables it to avoid an obligation for payment of the claimant's
attorney fees, even though those benefits were tendered after
trial.   We conclude that it does not.   This issue was decided in
McKinley v. Am. Dental Mfg. Co. (1988), 232 Mont. 92, 754 P.2d 831.
     In the McKinley case, we held that an lloffertgmade the day
before a pretrial conference, and less than one week before the
scheduled hearing date, could not be used to reduce the amount of
the attorney fee recoverable by a successful claimant under
5 39-71-612, MCA (1983).   We stated:
     We conclude, however, that use of the eve-of-trial
     $40,940 figure would not result in a Itreasonableattorney
     fee" under the facts of this case. In this case, we
     conclude that the "reasonable attorney fee" under
     5 39-71-612, MCA (1983), is computed using the difference
     between the amount awarded and the $36,927.80 offer made
     preceding the filing of the petition.
McKinley, 232 Mont. at 97, 754 P.2d at 834-35.
     If an "eve-of-trialn offer could not be considered because it
would not result in a "reasonable attorney fee,l1 certainly an offer
made subsequent to trial cannot be considered to reduce the
attorney fee award to the claimant.
     In this case, since no domiciliary benefits were tendered,
paid, or even offered to the claimant prior to trial, it is clear
that he is entitled to an attorney fee award of at least 33 percent
of all benefits paid to the claimant for domiciliary care.


     The next sub-issue is whether the claimant is entitled to an
attorney fee equal to 40 percent of any of the benefits that he
recovered because they were "based on the order of the Supreme
Court.
     This issue involves consideration of what 5 39-71-612, MCA
(1983), means when it provides that:
     [If the] award is greater than the amount paid or
     tendered by the employer or insurer, a reasonable
     attorney's fee as established by the     . . .   workers'
     compensation judge if the case has gone to hearing, based
     solely upon the difference between the amount settled for
     or awarded and the amount tendered or paid, may be
     awarded in addition to the amount of compensation.
(Emphasis added.)
     The defendant contends that because it paid some portion of
those benefits it was ultimately ordered to pay, and because it
"offered1'to pay other benefits prior to this Court's decision on
August 11, 1989, that those benefits were not "based on the Order
of the Supreme Courtw and that, therefore, an attorney fee equal
to 40 percent of those benefits is not appropriate.
     It is not clear what amounts were actually paid by the
defendant to the claimant prior to the decision of this Court.
However, it is clear that the majority of the amount due for Mrs.
Hilbig's services was not paid and that when an offer was finally
made to pay for her services, conditions were attached, such as
dismissal of the claimant's appeal to this Court.
     Section 39-71-704, MCA, imposes an obligation upon the State
Fund to pay for all medical services reasonably necessary for an
injured claimant without limitation.   That obligation is ongoing
and continuing and cannot be conditioned upon the acceptance by the
claimant of conditions attached by an insurer or employer which are
not provided for in the Workers1 Compensation Act.
     For that reason,      §   39-71-612, MCA (1983), provided for an
attorney fee based on the difference between that amount actually
"tendered or paid.I1       Significantly, and in spite of language
previously used by this Court        McKinley, it did not provide that
insurers could avoid payment of attorney fees to a successful
claimant by offering benefits which have never actually been
tendered or paid.
     There is substantial precedent for making a distinction
between Ittenderor paymentw of benefits, and a mere offer based on
some condition such as a waiver by the claimant of his right to
pursue further remedies. As stated in Washington Nat. Ins. Co. v.
Sherwood Assoc. (Utah App. 1990), 795 P.2d 665:
     "In order to have a valid tender there must be 'a bona
     fide, unconditional, offer of payment of the amount of
     money due, coupled with an actual production of the money
     or its equi~alent.~~' Carrv.EnochSmithCo., 781 P.2d 1292,
     1294 (Utah Ct.App. 1989) (quoting Z o ' P o e t e ,I c v. Holt,
                                          i n s r p r i s n.
     538 P.2d 1319, 1322 (Utah 1975)). Informing an obligee
     that you are ready and willing to perform the contract
     is insufficient. Century21All W: RealEstate&Inv. v. Webb, 645
     P.2d 52, 55-56 (Utah 1982); F s h r v Johnson, 525 P. 2d 45,
                                   ice .
     47 (Utah 1974).
Washinston Nat. Ins. Co., 795 P.2d at 670.
     Other jurisdictions make a similar distinction between actual
Iftender or paymentl1 and a mere offer.      Bembridge v. Miller (Or.
1963), 385 P.2d 172; Kammert Bros. Enterprises, Inc. v. Tanque
                       .
Verde Plaza Co. (Ariz 1967), 420 P. 2d 592 ; Vilbig v. Trumble Steel
Erectors (Tex. Ct. App. 1970), 464 S.W.2d 676; Novik v. Bartell
Broadcasters of N.Y., Inc. (1971), 323 N.Y.S.2d 108; Intern. Ind.,
Inc. v. United Mtg. Co. (Nev. 1980), 606 P.2d 163; Federal Land
Bank of Spokane v. Parsons (Idaho App. 1989), 777 P.2d 1218.
     The difference between an offer and a tender is further
explained in Bembridse v. Miller in the following portion of that
opinion:
    At common law the term "tender" has definite legal
    significance imparting not merely the willingness and
    intent to perform but also the ability at the time of
    tender to pay in accordance with the offer. The thing
    tendered, whether money, documents or chattels, must
    actually be produced and made available for the
    acceptance and appropriation of the person to whom it is
    offered.       In essence the only distinction between
     "tenderw and payment lies in the fact that a "tendergt      is
    not accepted while a payment is. Consequently, if there
    is an offer to perform but no money is made available,
    there can be no payment; and likewise, there can be no
    tender--at best only a naked offer to pay. E u t b e Life
                                                         qial
    Assur. Soc. o U i e S a e v. Boothe, 160 Or. 679 , 86 P.2d 960;
                 f n t d tts
    Hartrnan v Stark, 99 Or. 596, 195 P . 1117.
              .
Bembridqe, 385 P.2d at 175.
     In this case, the State Fund had an ongoing obligation to pay
medical benefits when due.    Included among those benefits, by its
own admission, and pursuant to previous decisions of this Court,
were benefits for domiciliary care or home health care services.
Carlson, 700 P.2d 607; Larson, 742 P.2d 1003.      If it disputed the
extent of benefits due, then it had an obligation to pay or tender
payment of those benefits that it agreed were due.       The defendant
had no right to withhold payment of benefits which were admittedly
due in an effort to resolve the larger claim made by the claimant.
It was with the above principle in mind that the legislature
authorized the Workersf Compensation Court in 5 39-71-612, MCA
(1983), to credit an insurer with the amounts actually "tendered
or paidw when arriving at a reasonable attorney fee.   However, the
legislature did not authorize the Workers' Compensation Court to
credit the defendant with an amount which was merely llofferedll
until 5 39-71-612, MCA (1983), was amended in 1987.     Since 1987,
5 39-71-612, MCA, has provided as follows:
     (1) If an insurer pays or submits a written offer of
     payment of compensation under chapter 71 or 72 of this
     title but controversy relates to the amount of
     compensation due, the case is brought before the workers'
     compensation judge for adjudication of the controversy,
     and the award granted by the judge is greater than the
     amount paid or offered by the insurer, a reasonable
     attorney's fee and costs as established by the workers'
     compensation judge if the case has gone to hearing may
     be awarded by the judge in addition to the amount of
     compensation.
(Emphasis added.)
     That amendment was not in effect at the time of the claimant Is
injury and, therefore, the defendant's argument based upon its
unfulfilled "offersN are unpersuasive.
     In summary, we conclude that the claimant is entitled to an
award of attorney fees equal to 40 percent of those domiciliary
benefits which were neither tendered nor paid to him prior to this
Court's order dated August 11, 1989.   The fact that the defendant
acknowledged its obligation for and offered to pay         for the
claimant's wife's services at the rate of $7.50 an hour for 24
hours a day, cannot be used to reduce the defendant's obligation
to pay the claimant's attorney fee when actual payment of those
amounts was neither tendered nor made until long after summary
judgment was granted to the claimant on remand, and then only with
the assistance of a writ of execution.
                               111.

     The final issue is what percentage applies to which benefits.
     It is clear that no benefits for domiciliary or home health
care were paid to the claimant prior to his trial on January 26,
1987. Therefore, the claimant is entitled to an award of attorney
fees in an amount equal to at least 33 percent of any benefits paid
for those services subsequent to that trial.
     It is also clear that some money was tendered or paid to the
claimant, or to a third party directly, for services provided by
that third party on an eight-hour-a-day basis prior to our decision
on August 11, 1989.    Therefore, the 40 percent factor does not
apply to those benefits.
     It is not clear from the record how much money was actually
paid to the claimant, or to his wife directly, for her services
prior to our previous decision.   However, the claimant's attorney
fees received for those benefits should also be paid at the rate
of 33 percent of the value of those benefits.
     For all of those benefits related to the services of Kathleen
Hilbig which the defendant had not paid until after this Court's
decision, and which will be due for her services in the future, as
well as for the cost of the claimant's health club membership, the
claimant is entitled to an award of attorney fees equal to 40
percent of the value of the benefits.
     Since we are unable to determine the dollar amounts which fall
into each of the categories set forth above, this case is remanded
to the Workers' Compensation Court for the limited purpose of
making those calculations and for further proceedings consistent
with this opinion.
     This case is affirmed in part and remanded to the Workers'
compensation Court for further proceedings.




We concur:
