                              NO.    91-094

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991



JESSE BRICENO,
            Petitioner and Appellant,
     -vs-
CEREAL FOOD PROCESSORS, INC.
            Employer and Defendant,
                                                       C)J    6..
                                                             -9i)tif:'k
     and                                        CLERK   OF SUPFlEIWE COUR?
                                                   STATE OF MONTANA
NATIONWIDE INSURANCE COMPANY,
            Defendant and Respondent.



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


COUNSEL OF RECORD:
            For Appellant:
                 Michael J. Whalen; Whalen         &     Whalen,      Billings,
                 Montana.
            For Respondent:
                 Patricia Karell; Crowley, Haughey, Hanson, Toole            &
                 Dietrich, Billings, Montana.


                              Submitted on briefs:           October 10, 1991
                                              Decided:       November 19, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    Jesse Briceno appeals from an order of the Workers' Compensa-
tion Court denying his claim for continuing temporary total
disability benefits and for a lump sum payment of benefits.
Nationwide Insurance Company cross-appeals on the issue of whether
Briceno has proven that he suffered an industrial injury which
resulted in a disability. We affirm in part and reverse and remand
in part.
     The issues are:
     1.    Did the Workers' Compensation Court err in concluding that
Briceno's condition is causally related to the injury received at
Cereal Food Processors, Inc.?
     2.    Did the court err in ruling that Briceno was not entitled
to continuing total disability benefits on August 7, 1989, and
thereafter during the retraining which he is pursuing?
     3.    Did the court err in failing to award Briceno any lump sum
payment of benefits and a twenty percent increase in his award
pursuant to 5 39-71-2907, MCA (1985)?
     The parties stipulated that Jesse Briceno suffered a back
injury on June 17, 1986, while working for Cereal Food Processors,
Inc. (Cereal Food), and that this injury was an aggravation of a
previous injury on December 4, 1985. Nationwide Insurance Company
(Nationwide) is the insurance carrier for Cereal Food.
     Cereal Food accepted liability for Bricenols injury and
Nationwide paid him temporary total disability benefits from
December 9, 1988, through August 7, 1989. At that time, ati ion wide
converted Bricenoisbenefits to partial disability benefits, after
being advised by Bricenots doctor that he had reached maximum
medical   healing and was approved      for several alternate job
positions.   Later that month,     rice no enrolled as a student at
Eastern Montana College.    He initially obtained funds for this
endeavor from Project Challenge-Work Again, through the AFL-CIO,
but since April 1990 he has been enrolled under a State of Montana
Department of Social and Rehabilitation Services written rehabili-
tation program.   He is pursuing a bachelor of s c i e n c e degree i n

human services.
     Briceno filed a petition with the Workers' Compensation Court
alleging that he is entitled to continued temporary total disabili-
ty benefits during retraining and asking for a lump sum conversion
of a portion of the benefits awarded to him.            The Workers1
Compensation Court ruled that Bricenogs condition is causally
related to the injury he received at Cereal Food.       It also ruled

that conversion of Briceno's benefits from temporary total to
permanent partial was proper because Briceno's doctor had deter-
mined that he had reached maximum medical healing and could return
to work in a full-time position as a management trainee, material
clerk, inventory clerk, or keypunch operator, and Briceno had been
given proper notice of the conversion of his benefits.   The court
ruled that Briceno is not entitled to receive temporary total
disability benefits during retraining, nor is he entitled to
receive a lump sum payment or a penalty for unreasonable delay or
refusal to pay pursuant to 5 39-71-2907, MCA (1985).     It awarded
Briceno his attorney fees and costs for proving a causal relation-
ship between his condition and his injury at Cereal Food.


     Did the Workers' Compensation Court err in concluding that
Briceno's condition is causally related to the injury received at
Cereal Food Processors, Inc.?
     The Workerst Compensation Court concluded that
     [tlhe evidence indicates that when claimant began working
     with Cereal Foods or its predecessor in August 1978, his
     spine was already involved in a degenerative process.
     However, the injury which occurred when he lifted a 70
     pound motor happened to accelerate his condition.
Nationwide argues that Briceno did not prove that his preexisting
degenerative disc disease was aggravated by an industrial accident
so that benefits can be awarded.   It argues that the deposition of
Dr. Lewallen, which was not taken until shortly before the Workers'
Compensation Court hearing, supports its position that the cause of
Briceno's degenerative disc disease was wear and tear, not injury.
Nationwide relies upon the following testimony of Dr. Lewallen:
     Q: Based upon your knowledge and treatment and evalua-
     tion of Jesse Briceno, can you state to a reasonable
     degree of medical certainty whether Jesse's degenerative
     disc disease is due to injury or to wear and tear?
     [Objection omitted.]
     A: Well, I think it's  --I guess my opinion is that it's
     a result of wear and tear.

     Q:   And upon what are you basing that opinion?
     [Objection omitted.]
     A: Well, in going through the records, it doesn't seem
     like -- Well, there was one incident where he lifted an
     object and had increased pain. But his medical record
     reflects exacerbations of back discomfort associated with
     activity, and some of it associated to activities at
     work, some not, that resulted in exacerbation of his back
     discomfort. It was Dr. Dorr's opinion when he initially
     saw him that he had --
     [Objection omitted.]
     A: It was his opinion that he had some degenerative disc
     problems initially.
     Briceno's uncontradicted testimony was that he had a complete
physical and was not having any trouble with his back when he began
work for Cereal Food in 1978.    Then, for several years, he was an
"elevator man1'for Cereal Food, which involved shoveling grain with
a scoop shovel weighing approximately forty to fifty pounds when
filled. In December 1985, he began suffering back pain. Briceno's
doctor took him off work for a week.
     On June 17, 1986, when Briceno was lifting a seventy-pound
motor to be used in emptying a grain bin at work, he had a crushing
sensation in his back and went home, unable to continue working.
He saw Dr. Lewallen, who prescribed pain medication.       Briceno
returned to work about a week later, but his back continued to
bother him.   In October 1987, on the advice of the Cereal Food
company doctor, he was moved to a lighter duty job at Cereal Food.
However, he continued to have pain and problems with his back.   In
November 1988, again on the company doctorrsadvice, his employment
was terminated.   Dr. Lewallen testified that a 1990 CAT Scan of
Briceno's back showed no change from a CAT Scan conducted in 1988,
just before he terminated his employment with Cereal Food.
     If there is strong enough evidence that a gradually developing
injury is job-related, it is an "injuryrf
                                        within the meaning of the
workers' compensation law, and is compensable.   Jones v. St. Regis
Paper Co. (1981), 196 Mont. 138, 149, 639 P.2d 1140, 1146.   During
his deposition, Dr. Lewallen was not advised of the technical
definitions of "injury" and "wear and tear" when used in workers'
compensation matters.
     There is no evidence that Briceno suffered any injury to his
back other than in the performance of his duties for Cereal Food.
We conclude that there is sufficient evidence to support the
Workers' Compensation Court's conclusion that the June 1986 injury
accelerated his condition. We hold that the Workersr Compensation
Court did not err in concluding that Briceno's condition is
causally related to his injuries at Cereal Food.
                                    II
     Did the court err in ruling that Briceno was not entitled to
continuing total disability benefits on August 7, 1989, and
thereafter during the retraining which he is pursuing?
     Because Briceno's industrial accident occurred between 1985
and 1987, this Court's recent opinion in Peile v. State Fund (Mont.

1991), - P.2d   -,     48 St.Rep. 853, applies.    As in that case,   §§

39-71-1001 and -1003, MCA (1985), govern.      Section 39-71-1001, MCA
(1985)' was not limited to totally permanently disabled individu-
als, but applied to all workers "who have become permanently
disabled as the result of injuries sustained within the scope and
course of employment   . . . and who, in the opinion of the division,
can be vocationally rehabilitated."          Section 39-71-1003, MCA
(1985), provided that "[a] person undergoing vocational rehabilita-
tion must be paid tem~orarvtotal disability benefits."       (Emphasis
supplied.)   As in Peile, any doubt as to the meaning of the
statutes must be resolved in favor of the injured worker.      Section
39-71-104, MCA (1985).
     Briceno is permanently disabled.        Since April 1990, he has
been undergoing an individual program of vocational rehabilitation

through the Department of Social and Rehabilitation Services (SRS),
which was the only entity authorized to provide such a program un-
der 5 39-71-1001, MCA (1985)   .   We conclude that Briceno is entitled
to temporary total disability benefits while he is undergoing
vocational rehabilitation through SRS. As to that period of time,
we reverse the decision of the Workers' Compensation Court.
                               I11

     Did the court err in failing to award Briceno any lump sum
payment of benefits and a twenty percent increase in his award
pursuant to 3 39-71-2907, MCA (1985)?
     Briceno asserts that while he is continuing with his program
of retraining at Eastern Montana College he "should have sufficient
of his compensation awarded in a lump sum so as to prevent him from
having to live upon the charity of his aged parents."          He also
claims entitlement to a twenty percent increase in benefits under
5 39-71-2907, MCA (1985), for unreasonable delay or refusal to pay.

     In the hearing before the Workers' Compensation Court, Briceno
did not present any documentation of his debts, nor did he request
a specific amount as a lump sum.   The Workers1 Compensation Court
concluded that "[Briceno] has failed to demonstrate to the Court
that the receipt of a lump sum would be in his best interest.''
Section 39-71-741 (2), MCA (1985), provided that   I
                                                   '   [i]t is presumed
that biweekly payments are in the best interests of the worker."
In the absence of any documentation of the amount of Briceno's
debts or a request for a lump sum in a specific amount, we hold
that the court did not err in determining that Briceno failed to
demonstrate that a lump sum payment would be in his best interest.
     Affirmed in part, reversed in part and remanded for further
proceedings consistent with this opinion.




We concur:
                                  November 19, 1991

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Michael J. Whalen
Whalen & Whalen
2825-3rd Ave. No. #504
Billings, MT 59101

Patricia Karell
Crowley Law Firm
P.O. Box 2529
Billings, MT 59103-2529

                                                ED SMITH
                                                CLERK O F THE SUPREME COURT
                                                STAHOF   MONTANA

                                                BY:
                                                 ~ s p u t ~
