author: JUSTICE TRIEWEILER

text:
    GORDON SULLIVAN, Plaintiff, Respondent, and Cross-Appellant, v. SISTERS OF CHARITY OF PROVIDENCE OF MONTANA, a nonprofit corporation, d/b/a COLUMBUS HOSPITAL, Defendant, Appellant, and Cross-Respondent.
    No. 94-133.
    Submitted on Briefs August 11, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1193.
    268 Mont. 71.
    885 P.2d 488.

      For Appellant: James R. Walsh and Dennis P. Clarke, Smith, Walsh, Clarke & Gregoire, Great Falls.
    For Respondent: Antonia P. Marra and Barbara E. Bell, Bell & Marra, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Gordon Sullivan commenced this action in the District Court for the Eighth Judicial District in Cascade County to recover damages from his employer, the Sisters of Charity, based on his discharge from employment at the Columbus Hospital. Sullivan’s wrongful discharge claim was tried before a jury, which returned a verdict in his favor in the amount of $70,000. After Columbus filed its notice of appeal, Sullivan received an anonymous file containing information related to his termination. Sullivan moved to reopen discovery and for sanctions. The District Court found that Columbus should have disclosed the information during discovery, granted Sullivan’s motion for sanctions, and ordered a new trial on damages. Both parties appeal from the order of the District Court. We affirm the District Court.

The issues raised by Columbus are:

1. Did the District Court err when it granted Sullivan’s motion for a new trial limited to the issue of damages?

2. Did the District Court err when it imposed sanctions against Columbus in the amount of $5500?

3. Was Sullivan’s notice of cross-appeal timely?

The issues raised by Sullivan’s cross-appeal are:

4. Did the District Court err when it bifurcated Sullivan’s discrimination claim from his wrongful discharge claim, and disallowed Sullivan’s demand for a jury trial of the discrimination claim?

5. Did the District Court err when it held that Sullivan’s remedies are limited to those provided in the Wrongful Discharge From Employment Act?

6. Were the sanctions imposed by the District Court adequate?

FACTUAL BACKGROUND

In November 1982, Sullivan began working as director of the public relations department at Columbus. In 1983, Sullivan hired Laura James (now Laura James Goldhahn, but referred to in this opinion as James) as an assistant. James and Sullivan apparently did not get along well. Eventually, Sullivan’s job duties were divided between Sullivan and James. Sullivan became director of marketing and James became director of public relations. Sullivan was not given a job description which explained his new duties and he was removed from his committee positions; however, his salary remained the same.

In 1985, and again in 1986, Sullivan injured his back at work. After the second accident, Sullivan was hospitalized and informed that he needed back surgery. While implementing some new programs he had started, Sullivan informed his supervisor, Joel Lankford, that he required surgery and had scheduled it for April 1987. Lankford told Sullivan that he must return to work or his job would be in jeopardy. A few days later Sullivan returned to work without a physician’s permission. Shortly thereafter, Sullivan received a negative job performance evaluation from Lankford. Columbus’s rules provided that if an employee received a negative evaluation, he has four months to improve negative ratings if he is to retain employment. Therefore, Sullivan postponed the surgery because he felt he had to respond to the negative job evaluation or lose his job. Four months later, on July 21, 1987, Sullivan received a superior rating. Thereafter, Sullivan’s back worsened, so he rescheduled surgery and commenced his leave of absence on November 15, 1987.

Before surgery, in January 1988, Sullivan met with his new supervisor, Sister Eileen Croghan, who informed him that several people at Columbus questioned the legitimacy of his workers’ compensation claim. Sullivan testified that at the January meeting Croghan told him that when he returned from surgery she would request that he resign, and that if he did not resign, he would be fired. Croghan recalled this meeting, but denied this conversation. Sullivan took leave, based on his disability, and had back surgery in Minneapolis on February 1, 1988.

At this time, Sullivan was earning $42,182 per year, not including benefits. After surgery on April 6, 1988, Sullivan arranged to meet Croghan to inform her that he had a release from his physician and would be able to work part-time. At this meeting, Croghan advised Sullivan that his position was eliminated because of financial demands. Sullivan was offered a job in the public relations department as an assistant to James at less than half of his previous salary. He did not accept the offer.

As of December 1993, Sullivan had not obtained new employment. At trial, Sullivan’s expert testified that during four years of unemployment as marketing director, Sullivan lost compensation worth $237,000.

Sullivan based his claim against Columbus for wrongful discharge on the common law, and the 1987 Wrongful Discharge From Employment Act that became effective on July 1, 1987, and superseded common law remedies. He also moved to amend his complaint to include a claim based on discrimination.

In several written interrogatories submitted prior to trial, Sullivan asked for all information in Columbus’s possession which was related to the contemplated elimination of his position. Columbus did not produce those documents now known as the anonymous file, nor the Laura James file, which included many of the same documents.

On March 23-26, 1992, the wrongful discharge claim was tried before a jury. The jury found that Columbus wrongfully discharged Sullivan and awarded him $70,000 as compensatory damages. Sullivan moved for a new trial based on insufficient damages. The District Court granted the motion and ordered a new trial on damages because it concluded that the jury misunderstood the court’s instructions. The District Court denied Columbus’s motion for judgment notwithstanding the verdict on the issue of liability.

Columbus appealed. While the appeal was pending, on or about August 20,1992, Sullivan received the anonymous file. The file indicates that unbeknownst to Sullivan, and for some time before he was terminated, James prepared documents or proposals, pursuant to Lankford’s request, to consolidate Sullivan’s department with James’s department, and allegedly to terminate Sullivan. Sullivan was not aware of these documents and the alleged plan until after the trial.

In September 1992, Sullivan moved the District Court to reopen discovery and requested sanctions. Since the matter was on appeal, the District Court decided it did not have jurisdiction. Therefore, Sullivan filed a similar motion with this Court. Columbus produced further materials, including the Laura James file, and provided affidavits from its employees denying knowledge of the anonymous file and its contents. This Court then dismissed the first appeal without prejudice, and remanded the case to the District Court to determine whether discovery should be reopened and whether or not sanctions were appropriate.

The District Court held a hearing on July 7, 1993, and found that Columbus willfully withheld documents relating to damages and should be sanctioned. Sullivan and the Court agreed that reopening discovery would be useless. District Court Judge John McCarvel then recused himself from the case.

On September 7,1993, District Court Judge John Warner accepted jurisdiction. After hearing evidence on December 21 and 22, 1993, regarding the anonymous file, and hearing testimony from several witnesses, including Sullivan’s counsel, the court issued its findings of fact, conclusions of law, and order on December 30, 1993.

The Court found, among other things, that:

1. The documents produced after trial relate to arguments made at trial and may have weakened Columbus’s case relating to liability and affected the case regarding damages.

2. The documents were relevant, would have changed the trial strategy, and indicate a plan, at least to some extent, concerning Sullivan’s employment.

The court ordered a new trial on damages and imposed sanctions against Columbus in the amount of $5500 to cover attorney fees related to summary judgment and post-trial motions. The court apparently awarded nothing for the costs of trial.

In summary, two District Court Judges, at different times, ordered a new trial on damages alone. Columbus appeals from the District Court’s order, and Sullivan cross-appeals.

ISSUE 1

Did the District Court err when it granted Sullivan’s motion for a new trial limited to the issue of damages?

Columbus argues that the District Court erred when it granted a new trial limited to the issue of damages. When we consider whether a district court imposed proper sanctions for a discovery abuse, we determine whether the district court abused its discretion. Eisenmenger v. Ethicon, Inc. (1994), 264 Mont. 393, 402, 871 P.2d 1313, 1319. In this case, Sullivan moved for sanctions pursuant to Rules 11 and 37(d), M.R.Civ.P. Sanctions were imposed pursuant to Rule 37(d). However, we will affirm their imposition, if appropriate, under either of the above rules. Jerome v. Pardis (1989), 240 Mont. 187, 783 P.2d 919. This Court defers to the trial court because it is in the best position to know whether the party in question has disregarded the other’s rights, and is in the best position to determine which sanction is most appropriate. Eisenmenger, 871 P.2d at 1319 (citing Dassori v. Roy Stanley Chevrolet Co. (1986), 244 Mont. 178, 179-80, 728 P.2d 430, 431). In Eisenmenger, 871 P.2d at 1320-21, we concluded that if one party does not properly respond to discovery and the other party suffers prejudice, a district court’s decision to impose a default judgment as a sanction was proper.

Columbus argues that ordering a new trial on the damages issue alone, and not ordering a retrial on liability, is the equivalent of a default judgment. While, according to our decision in Eisenmenger, the entry of default may be appropriate as a sanction for failure to candidly respond to discovery, we disagree that a default was entered in this case.

Here, the jury rendered a verdict for Sullivan on the issue of liability. The District Court concluded that there was substantial evidence to support that verdict when it denied Columbus’s motion for judgment notwithstanding the verdict. Columbus does not contest that conclusion on appeal.

The sanction actually imposed was a new trial on the issue of damages which, for the reasons discussed in Eisenmenger, we conclude did not result from an abuse of discretion.

Further, the District Court’s order regarding a new trial was justified without regard to the issue of sanctions. Montana has long recognized that district courts are empowered to order a new trial on damages alone. Bohrer v. Clark (1978), 180 Mont. 233, 590 P.2d 117. In Bohrer, the district court found the jury’s damage award insuffi cient and after plaintiffs moved to alter or amend the judgment or for a new trial, the court increased the jury’s damage award. Both parties appealed and we held that Rule 59(a), M.R.Civ.P., provides for instances when a new trial on damages is appropriate. Bohrer, 590 P.2d at 122-23. We recognized that although infrequently necessary, “the power of both trial and appellate courts to order such a limited trial is well recognized.” Bohrer, 590 P.2d at 123. We relied partly on 58 Am. Jur. 2d New Trial § 27, stating that when there is an error in the determination of damages, and the court is satisfied that the jury properly settled the liability issues based on sufficient evidence, and an error in damages requires setting aside the verdict, a new trial on damages may be proper. Bohrer, 590 P.2d at 123. We also recognized that it is generally within the district court’s discretion to allow or refuse to allow a new trial on the grounds of inadequate damages. Bohrer, 590 P.2d at 122.

In Bohrer, the district court concluded that the jury’s award was inadequate. We stated, “[u]nder these circumstances, an order granting a new trial limited to the issue of damages would have been within the court’s discretion.” Bohrer, 590 P.2d at 123. We indicated a preference for a new trial on the issue of damages, rather than an assessment of damages by the district court.

After the newly discovered evidence appeared, Judge McCarvel and Judge Warner both found that the undisclosed information would have affected the damage award. We conclude that ordering a new trial limited to the issue of damages based on these findings was not an abuse of discretion. The District Court did not substitute its judgment for the jurors’ decision regarding damages. Rather, the court properly ordered a new trial on damages so the jury could hear all evidence relevant to damages. There was substantial evidence to support the jury’s verdict on the issue of liability. Therefore, the District Court did not err when it declined to order a new trial on that issue. The order of the District Court granting a new trial limited to the issue of damages is affirmed.

ISSUE 2

Did the District Court err when it ordered sanctions against Columbus in the amount of $5500?

As mentioned above, in determining whether a district court imposes proper sanctions for discovery abuse, we examine whether the district court abused its discretion. Eisenmenger, 871 P.2d at 1319. Judge Warner ordered Columbus to pay Sullivan $5500 for attorney fees as a sanction for discovery abuse. The District Court heard testimony regarding Sullivan’s attorney fees. After a hearing, Judge Warner found that $2500 for amounts expended for work on summary judgment and $3000 for work required after the verdict was a sufficient sanction. Judge Warner did not award attorney fees for amounts expended trying the case.

The District Court Judge is better situated to decide the appropriate sanctions in this case. He heard evidence regarding the missing files and attorney fees, and concluded that $5500 was a reasonable amount. We conclude that the District Court did not abuse its discretion when it imposed monetary sanctions in the amount of $5500. This analysis is also dispositive of the issue raised by Sullivan’s cross-appeal challenging the sufficiency of sanctions.

ISSUE 3

Was Sullivan’s notice of cross-appeal timely?

Columbus claims that Sullivan did not file a notice of appeal after the District Court’s March 19, 1992, order, and that pursuant to Rule 5(a)(3), M.R.App.R, notice of cross-appeal must be filed within 14 days from the notice of appeal. Since Columbus’s first notice of appeal was filed on June 1, 1992, and no notice of cross-appeal was filed within 14 days, Columbus argues that Sullivan’s cross-appeal is untimely, and therefore, barred. However, Columbus’s original appeal was dismissed without prejudice on February 18,1993, and this case was remanded for further proceedings in the District Court.

Those proceedings were concluded by the findings, conclusions, and order filed on December 30, 1993. Notice of entry of judgment was served on January 7, 1994, and Columbus filed a new notice of appeal on February 1, 1994. Sullivan filed his notice of cross-appeal on February 3,1994, well within the time provided for by Rule 5(a)(3). We conclude that Sullivan’s cross-appeal was timely.

ISSUE 4

Did the District Court err when it bifurcated Sullivan’s discrimination claim from his wrongful discharge claim, and disallowed Sullivan’s demand for a jury trial of the discrimination claim?

We will uphold a district court’s decision to bifurcate issues absent a clear abuse of discretion. See In re Marriage of Geertz (1988), 232 Mont. 141, 144, 755 P.2d 34, 36. We have recognized that a party who pleads legal and equitable claims is entitled to have legal claims heard by a jury. Gray v. City of Billings (1984), 213 Mont. 6, 689 P.2d 268. In Gray, we stated that liberal rules of civil procedure permit joinder of claims and recognized that the same rules permit severance of claims and issues. Gray, 689 P.2d at 272.

Sullivan argues that the claims should not have been bifurcated and that he is entitled to a jury trial of the discrimination claim. At the time the initial bifurcation order was entered, and when Judge Warner reaffirmed it on December 30, 1993, Montana case law held that there is no right to a jury trial of discrimination claims based on the Montana Human Rights Act. See Vainio v. Brookshire (1993), 258 Mont. 273, 277, 852 P.2d 596, 599; Romero v. J & J Tire (1989), 238 Mont. 146, 151-52, 777 P.2d 292, 295-96. Since Montana law allows district courts broad discretion to segregate claims, and Montana law does not guarantee the right to a jury trial in discrimination claims, we conclude that the District Court did not abuse its discretion by severing the claims in this case.

ISSUE 5

Did the District Court err when it held that Sullivan’s remedies are limited to those provided in the Wrongful Discharge From Employment Act?

Sullivan argues that the undisclosed documents indicate a plan to terminate him in 1987 before the new law was enacted on July 1. He claims that the file constitutes evidence of constructive discharge. Sullivan incorrectly interprets Montana’s law of constructive discharge. Prior to the Act’s adoption, Montana case law defined constructive discharge similar to the current definition in § 39-2-903(1) MCA:

[T]he voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative.

See Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 524, 858 P.2d 3, 6. In Kestell, we recognized that prior case law defined constructive discharge essentially the same as the current statute, relying on Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 643 P.2d 841, and Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 771 P.2d 114. Under those cases, and under the Act, to find constructive discharge “the fact finder must decide whether the employer has rendered working conditions so intolerable that resignation is the only reasonable alternative.” Kestell, 858 P.2d at 7 (citing Niles, 771 P.2d at 118). The intolerable situation about which Sullivan complains occurred after the Act became effective. Sullivan was not informed that his position was eliminated until April 1988, and he was not forced to quit before the new law was enacted. We hold, based on the facts in this case, that a constructive discharge did not occur prior to the effective date of the Wrongful Discharge From Employment Act.

For similar reasons, we must reject Sullivan’s claim that the implied covenant of good faith and fair dealing, as it existed before the Act, applies in this case. Pursuant to § 27-2-102(1)(a), MCA, a cause of action accrues when all elements of the cause exist. In Martin v. Special Resource Management, Inc. (1990), 246 Mont. 181, 185, 803 P.2d 1086, 1089, we held that all of the elements to establish a breach of the implied covenant, if present at all, were present when the employee received notice of termination. Sullivan received notice after the Act’s effective date, and was terminated after that date. Therefore, the Act applies to his claim.

We hold that the District Court did not err when it concluded that the Wrongful Discharge From Employment Act is Sullivan’s exclusive remedy.

We affirm in all respects the orders and judgment of the District Court.

JUSTICES HARRISON, GRAY NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    LaVERN F. BURNS, Petitioner and Appellant, v. PLUM CREEK TIMBER COMPANY, Respondent, Insurer and Respondent.
    No. 94-145.
    Submitted on Briefs August 11, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1175.
    268 Mont. 82.
    885 P.2d 508.

      For Appellant: Dean K. Knapton, Attorney at Law, Kalispell.
    For Respondent: Kelly M. Wills; Garlington, Lohn & Robinson, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

LaVern F. Burns (Burns) appeals from the Findings of Fact, Conclusions of Law and Judgment entered by the Workers’ Compensation Court. We conclude that substantial evidence supports the court’s decision; therefore, we affirm.

Burns filed a petition for hearing in the Workers’ Compensation Court on April 1, 1993. He alleged that he suffered an industrial injury to his arm on March 16, 1992, arising out of the course of his employment as a spreaderman with Plum Creek Manufacturing. Plum Creek Timber Company (Plum Creek) responded and clarified that it had been Burns’ employer at the time of the alleged industrial injury.

The action proceeded and a Pre-Trial Order was entered. The parties agreed that Burns had suffered an injury in 1985, prior to his employment by Plum Creek in 1987, which was diagnosed as a right subclavian vein thrombosis. The parties also agreed that, on March 17, 1992, Burns was diagnosed with a right subclavian vein thrombosis (hereafter “rethrombosis”). The parties disagreed over whether the 1992 rethrombosis resulted from an injury as defined by the Montana Workers’ Compensation Act (the Act), with Burns contending that his “condition arose during a single work shift as a result of an unexpected traumatic incident or unusual strain to his arm/shoulder during his 3/16/92 shift.”

Trial was held before the Workers’ Compensation Court on October 13, 1993. Burns testified in person and presented three other witnesses on his behalf. Testimony from doctors Gregory Luna (Luna), Joseph Knapp (Knapp), and Charles Swannack (Swannack) was presented by deposition. Burns’ medical records and a videotape of the spreader machines involved in Burns’ job were admitted as exhibits.

The Workers’ Compensation Court entered its findings, conclusions and judgment on March 18, 1994. The court made detailed findings and, on the basis of those findings, determined that Burns had not established entitlement to benefits by a preponderance of the credible evidence. Burns appeals.

Does substantial credible evidence support the Workers’ Compensation Court’s findings?

Burns does not argue that there is insufficient evidence to support findings made by the Workers’ Compensation Court. He asserts that the court improperly rejected portions of his uncontroverted testimony and that of his wife, finding that testimony not credible. He also contends that the court failed to give sufficient weight to evidence from treating physicians. In essence, Burns argues that sufficient evidence exists to support findings different from those made by the court. That is not, however, the applicable standard.

We review the findings and decision of the Workers’ Compensation Court to determine whether they are supported by substantial credible evidence. Smith v. United Parcel Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720. Where conflicting evidence is presented and the credibility of witnesses or the weight to be given their testimony is at issue, we will not substitute our judgment for that of the trial court. Smith, 835 P.2d at 720.

It is undisputed that § 39-71-119, MCA (1987), provides the controlling definitions with regard to the injury itself and the requisite causal connection. As we paraphrased in Welch v. American Mine Services, Inc. (1992), 253 Mont. 76, 81, 831 P.2d 580, 584, “there must be an ‘injury’ and an ‘accident,’ and the injury must be ‘caused by’ the accident.” Here, the parties presented conflicting evidence regarding whether Burns’ rethrombosis was an injury caused by an accident which occurred during Bums’ employment with Plum Creek on March 16, 1992.

The evidence relating to Burns’ March 16, 1992, work shift was presented primarily through the testimony of Burns and his wife Pam. Burns testified about the nature of his job as a spreaderman for Plum Creek. Burns had worked for Plum Creek since 1987, but only began working on the spreaders in June 1991, as part of a four-person team which assembled plywood sheets in layers as they came through a roller. He testified that he quit weight-lifting activities around that time because the work was pretty hard and took up all his energy.

Burns worked an unremarkable day shift on Friday, March 13, 1992, and had the weekend off. He and Pam both testified that the weekend was a quiet one and that Burns did nothing strenuous over that period of time.

He then worked the swing shift on March 16, 1992, during which he alleged the injury occurred which caused the rethrombosis. He was working as a “core layer” at the time, catching large pieces of plywood (“27s”) in his right hand as they came off the roller one at a time, and using his other hand to help place each 27 onto a larger piece of plywood veneer. Burns testified that he experienced a tingling sensation in his right hand toward the end of the shift, and stopped work for a short time. He told his supervisor that his arm was bothering him, but did not report an injury or accident at that time. He returned to work and finished the shift.

Other portions of Bums’ testimony were not as clear. He testified at various points that he was hit by 27s in the chest or face a few times during the shift and, conversely, that he was not bumped or struck. He testified that he noticed the tingling in his hand and arm when he had his arms and hands outstretched to catch a 27; alternatively, he testified that he felt the tingling in his hand when 27s hit him in the hand. He testified that nothing unusual or unexpected occurred during the work shift at issue and that the “hits” and “bumps” he described were normal and regular happenings in performing the job of a core layer. Finally, and in response to questioning from the court, he acknowledged that he could not identify a specific bump or “catch” as the cause of the rethrombosis.

Burns testified that, on returning home after the March 16 shift, he merely told Pam that his arm ached and hurt. This testimony corresponded with her testimony to the same effect on direct examination. Pam testified on cross-examination, however, that Burns told her that night that two 27s hit him in the hand.

The court made detailed findings concerning the testimony of Bums and his wife, noting some of the inconsistencies in their statements. The court also found Burns’ testimony that he had quit lifting weights shortly after starting work on the spreaders in June, 1991, inconsistent with his statement to Dr. Knapp that he had continued heavy weight-lifting until the time of the rethrombosis. We conclude that the Workers’ Compensation Court’s findings regarding the testimony of record are supported by substantial evidence.

The court also made credibility findings, based on its opportunity to hear the testimony of Burns and his wife and observe their demeanor. It rejected Burns’ testimony that he had given up weightlifting in 1991, rejected his wife’s testimony that Burns told her he was hit in the hand by two 27s, and rejected similar testimony from Burns at trial which attempted to establish a specific event which caused the injury. We will not substitute our judgment for that of the Workers’ Compensation Court when conflicting evidence is presented and the credibility of the witnesses is at issue. Smith, 835 P.2d at 720.

Burns argues that the court’s credibility determinations were erroneous. He relies on McGuire v. American Honda Co. (1977), 173 Mont. 171, 176, 566 P.2d 1124, 1126, for the principle that uncontroverted credible evidence may not be disregarded. That principle is inapplicable here. First, Burns’ trial testimony about events during the March 16, 1992, work shift was not uncontroverted; it was both inherently contradictory and, in part, controverted by his deposition testimony. Second, the court specifically found Burns’ testimony to be not credible. Thus, McGuire is inapposite.

Bums also contends that this case is a “mirror image” of Prillaman v. Community Medical Center (1994), 264 Mont. 134, 870 P.2d 82. His reliance on Prillaman, which did not involve credibility determinations, is totally misplaced. Nothing in Prillaman even remotely suggests that a finder of fact is required to accept nonmedical evidence without judging its credibility.

In addition to the nonmedical testimony before the court, the record contained substantial and conflicting medical evidence. In Dr. Knapp’s view, Burns suffered a recurrence of subclavian vein thrombosis without identifiable or documented recurrence trauma. He found no evidence linking the rethrombosis to Burns’ employment and, in his opinion, there was only a 10% to 15% chance that Burns’ work activities caused the rethrombosis. Dr. Swannack also was unable, to a reasonable degree of medical certainty, to relate the rethrombosis to Burns’ work activities on a single day or during a single shift. He opined that the condition could have resulted from a variety of things other than injury and also could simply have been a natural consequence of the earlier thrombosis, without precipitating injury or trauma. Drs. Knapp and Swannack agreed that a thrombosis typically does not become symptomatic for three to five days after an underlying trauma.

Dr. Michael Oreskovich’s opinion, on the other hand, was that the rethrombosis “occurred as a consequence of an accident at work.” Dr. Oreskovich did not identify a specific trauma, strain or occurrence suffered by Burns during the work shift at issue which would have caused the thrombosis.

Dr. Luna examined Bums more than a year after the rethrombosis, on referral from Dr. Oreskovich. His initial testimony via deposition was that he concurred in Dr. Oreskovich’s opinion about what “most probably” happened regarding Burns’rethrombosis; his concurrence, however, was with a number of “qualifiers.” On examination by counsel for Plum Creek, Dr. Luna was unable to opine to a reasonable degree of medical certainty that the occlusion which caused Burns’ recurrent subclavian vein thrombosis arose as a result of his activities on a single work shift.

The Workers’ Compensation Court’s findings set forth the substance of the medical evidence in some detail. We conclude that those findings, including the finding that Dr. Oreskovich’s opinion was the only firm medical opinion relating the rethrombosis to a single work shift, are supported by substantial credible evidence.

Importantly, the court also found that Dr. Oreskovich’s opinion was contained in a letter rather than presented via deposition or trial testimony subject to cross-examination, and that Dr. Luna’s initial support for that opinion was significantly qualified. On those bases, the court made a specific finding that it did not accept Dr. Oreskovich’s opinion. We will not substitute our judgment for that of the Workers’ Compensation Court where conflicting evidence is presented and the weight to be given testimony is at issue. See Smith, 835 P.2d at 720.

We hold that the court did not err in weighing the evidence and determining the credibility of the witnesses. We further hold that the Workers’ Compensation Court’s findings and decision are supported by substantial credible evidence.

AFFIRMED.

JUSTICES WEBER, HARRISON, NELSON and HUNT concur.


author: JUSTICE HUNT

text:
    RICHARD A. WELDON and MONICA A. WELDON, Plaintiffs and Appellants, v. MONTANA BANK, Successor to MONTANA BANK OF BILLINGS, a Montana corporation, Defendant and Respondent.
    No. 94-045.
    Submitted on Briefs September 15, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1178.
    268 Mont. 88.
    885 P.2d 511.

      See also, 856 P.2d 225.
    For Appellants: David A. Klibaner, Attorney at Law, Denver, Colorado; Gilbert U. Bnrdett, Burdett Law Firm, Billings.
    For Respondent: Kenneth S. Frazier and Michael K. Rapkoch, Felt, Martin & Frazier, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiffs Richard and Monica Weldon appeal the order of the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment in favor of Montana Bank. We affirm.

We state the issues on appeal as follows:

1. Does the language of the mortgage provision at issue in this case create contract-based obligations in the Bank from which the Weldons can state a claim for breach of contract?

2. Did the Weldons suffer a deprivation of contractual benefit from which they may claim a breach of the implied covenant of good faith and fair dealing?

The Weldons owned a 2375 acre ranch on Blue Creek outside of Billings. They claim that in early 1983 they were solicited by Ralph Skaggs of Kreitzberg Associates, Inc., a real estate firm. Skaggs presented them with a plan for purchasing a ranch in Carbon County on contract, providing that the Weldons allow the Kreitzberg firm to offer for sale about 1500 acres of the Blue Creek Ranch. Neither Skaggs nor the Kreitzberg firm is a party to this suit.

According to the Weldons, on or about June 1, 1983, Skaggs arranged a meeting between the Weldons and Montana Bank to discuss obtaining a loan for the down payment on the Carbon County ranch. During this meeting, the Weldons claim that the Bank “was informed of the necessity of Kreitzberg Associates, Inc. selling the [Blue Creek] Ranch to repay the loan for the down payment and to make the contract payments on the [Carbon County] ranch.” On June 29, 1983, the Bank and the Weldons executed Note No. 827 in the amount of $160,000. To secure the note, the Weldons mortgaged to the Bank approximately 1280 acres of the Blue Creek ranch.

On August 2, 1983, the Weldons entered into a written listing agreement with the Kreitzberg firm for the sale of 1500 acres of the Blue Creek ranch at $1000 per acre. They claim that in November 1983, Skaggs informed them that the firm could find no purchasers at $1000 per acre; however, Skaggs stated that his own partnership, Double S Investors, would purchase the property at $600 per acre. The Weldons accepted this offer.

Because 1280 of the 1500 acres were under mortgage, the Weldons claim that the Bank took financial statements from Double S Investors, approved the purchase, and placed the purchase agreement “in its file as further security for the repayment of loans made to the Weldons.” The Weldons claim that the Bank

knew the Agreement between the Weldons and Double S Investors required the property to be surveyed into 20 acre parcels; required executed warranty deeds to each 20 acre parcel be placed in escrow; and required payment by Double S Investors to Weldons of $1,000.00 per acre for release of such deeds.

The Bank admits it was aware of the agreement’s provisions.

The Weldons claim that sometime after October 31, 1984, Skaggs met with the Bank and requested that it execute a partial release on 260 of the 1280 acres encumbered by the Weldon’s mortgage. They additionally claim that Skaggs presented the Bank with a deed which contained the forged or fraudulently obtained signatures of the Weldons and which purported to transfer ownership of the 260 acres to Double S Investors.

The Bank executed a partial release of the mortgage on November 14, 1984. The Bank did not communicate with or notify the Weldons before executing the release, nor did it request or receive any funds from the Weldons or reduce their indebtedness under the outstanding note.

On November 13,1992, seven years and 364 days after the partial release, Weldons brought suit alleging that the Bank was aware of the agreement between the Weldons and Double S Investors, that Double S Investors failed to comply with the agreement, and that by executing the partial release, the Bank breached its fiduciary and contractual duties and breached the covenant of good faith and fair dealing.

The Bank moved for summary judgment on April 5,1993, arguing that the claims raised by the Weldons, notwithstanding that they may be labeled “breach of contract” claims, are subject to Section 27-2-204, MCA which provides a three year limitations period. The Bank’s argument is that the claims made by the Plaintiffs are tort claims regardless of how they are labeled, are thus barred by the three year limitations period, and the Bank is entitled to judgment as a matter of law.

On July 30, 1993, the District Court ordered the parties to submit additional briefs regarding the meaning of the mortgage provision on which the Weldons base their claims. Both parties submitted additional briefs, and the District Court granted summary judgment in favor of the Bank on October 13, 1993.

ISSUE 1

Does the language of the mortgage provision at issue in this case create contract-based obligations in the Bank from which the Weldons can state a claim for breach of contract?

“In reviewing a grant of summary judgment, our standard of review is identical to that of the trial court.” Kuhns v. Koessler (1994), [266 Mont. 339], 880 P.2d 1293, 1295. We examine the record to determine whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Kuhns, [266 Mont. 339], 880 P.2d at 1295; Rule 56(c), M.R.Civ.P. ‘When a motion for summary judgment is made and supported, the nonmoving party cannot rest on allegations or the denials of its pleadings, but must set forth specific facts showing that there is a genuine issue for the trial court.” Hennen v. Omega Enterprises, Inc. (1994), 264 Mont. 505, 508, 872 P.2d 797, 799. In reviewing conclusions of law, we will determine whether the district court correctly interpreted the law. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The disposition of this appeal turns on the meaning of the following provision contained in the mortgage contract between the Weldons and Montana Bank:

A release of this mortgage is to be made at the expense of the Mortgagors, on full payment of indebtedness secured thereby.

The Weldons argue that the language of the provision “requires the Bank to maintain the mortgage in full effect until final payment of their indebtedness,” or that “[a]t the least the language is ambiguous and allowed Weldons to believe the Bank would notify them of an intended release prior to full payment.” The Bank counters that the language is not ambiguous and creates only a narrow obligation in the Bank to release the mortgage at the Weldons’ expense upon payment of the underlying indebtedness. The Bank argues that

[attempts by the plaintiffs to create what amount to tort-type duties on the basis of this contractual language, and thereby escape the three year statute of limitations which governs in this case, should be rejected since there is nothing in this provision which even suggests that the Bank owed contractual duties of the type asserted by the plaintiffs.

Promissory notes and mortgages are contracts and are examined under the rules of construction applicable to contracts. First National Bank and Trust Co. v. Lygrisse (Kan. 1982), 647 P.2d 1268; U.S. Bldg. and Loan Ass’n v. Gardiner (1930), 87 Mont. 586, 289 P. 555; Union Central Life Insurance Co. v. Jensen (1925), 74 Mont. 70, 237 P. 518. “As a general rule, the construction and interpretation of written agreements, including contracts, is a question of law for the court to decide.” First Security Bank v. Vander Pas (1991), 250 Mont. 148, 152-53, 818 P.2d 384, 387; Monte Vista Co. v. Anaconda Co. (1988), 231 Mont. 522, 528, 755 P.2d 1358, 1362. It is a question of law for the court to determine whether ambiguity exists sufficient to submit the question of the parties’ intent to the jury. Vander Pas, 818 P.2d at 387; Monte Vista Co., 755 P.2d at 1362. ‘When the language of the contract is clear and unambiguous on its face, then it is the duty of the court to enforce the contract as the parties intended.” Vander Pas, 818 P.2d at 387; Monte Vista Co., 755 P.2d at 1362.

The District Court in this case concluded that the language of the provision is unambiguous and simply requires the mortgagors to bear the expense of a release. The District Court further concluded that a creditor may cancel or release a mortgage at any time without consideration and without the consent of the mortgagor.

The Weldons contend on appeal that a genuine issue of material fact exists regarding the interpretation of the provision. However, the initial determination whether an ambiguity exists in a contract is a question of law. Monte Vista Co., 755 P.2d at 1362. We hold that the District Court properly rejected the Weldons proffered interpretation which sought to impose a duty upon the Bank to maintain the mortgage in full effect until final payment of the indebtedness.

Sections 71-1-211 and -212, MCA, which enumerate the statutory duties of a bank regarding the release of a mortgage, do not require a bank to maintain a mortgage in the manner asserted by the Weldons. Moreover, this Court has held that, because a mortgage is a lien executed for the benefit of the lender, the lender may cancel or release the mortgage at any time with or without consideration from or the consent of the mortgagor. Mueller v. Renkes (1904), 31 Mont. 100, 77 P. 512. We reaffirm this principle as set forth in Mueller. As a matter of law, the District Court properly determined the language of the provision to be unambiguous and correctly interpreted it to create a narrow obligation in the Bank to release the mortgage, at the Weldons’ expense, upon full payment. Because the mortgage provision did not create a contractual obligation in the Bank to maintain the mortgage in the manner asserted by the Weldons, a breach of contract claim based on the provision cannot be sustained.

ISSUE 2

Did the Weldons suffer a deprivation of a contractual benefit from which they may claim a breach of the implied covenant of good faith and fair dealing?

The Weldons argue that a breach of the covenant of good faith and fair dealing occurs “when the discretion conferred by the contract has been misused to deprive the other party of the benefit of the bargain.” They assert that they have provided sufficient “factual inferences” to demonstrate that the Bank acted arbitrarily, capriciously, or in violation of reasonable commercial standards, and therefore, breached the implied covenant. The District Court, however, concluded that the implied covenant was not breached because the Bank’s partial release did not deprive the Weldons of the benefit of the contract.

In Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775, we set forth the following framework for breach of implied covenant claims: (1) every contract contains an implied covenant of good faith and fair dealing; (2) a breach of the covenant is a breach of the contract; (3) a breach of an express term of the contract is not a prerequisite to a breach of the implied covenant; (4) the conduct required by the implied covenant is honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade; and (5) when one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached.

The Weldons claim that “[t]he District Court never engaged in the analysis which is required under the law of the covenant” to determine whether the Bank’s “conduct was within reasonable commercial practices or was arbitrary or capricious.” This is incorrect. As discussed under Issue 1, the District Court properly concluded that the Bank was under no contractual obligation to maintain the mortgage until full payment was received.

While it is true that the covenant of good faith and fair dealing is implied in every contract, the claims asserted by the Weldons do not implicate the mortgage contract between them and the Bank; instead, their claims focus on peripheral aspects of their relationship with the Bank. As the United Stated District Court of Montana stated in addressing the implied covenant:

Without some attempt by one party to “[use] discretion conferred by the contract to act dishonestly or to act outside the accepted commercial practices to deprive the other party of the benefit of the contract,” it is questionable whether any breach of the covenant occurred, even if the conduct amounts to breaches of other common law obligations.

Shupak v. New York Life Ins. Co. (D. Mont. 1991), 780 F. Supp. 1328, 1342 (alteration in original) (citing Story, 791 P.2d at 775); Richland Nat’l Bank and Trust v. Swenson (1991), 249 Mont. 410, 420, 816 P.2d 1045, 1051-52. Because the Bank did not owe a duty to the Weldons to maintain the contract until full payment, we agree with the conclusion of the District Court that the Weldons were not deprived of a contractual benefit when the Bank partially released the mortgage, and therefore, cannot state a claim for breach of the implied covenant.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    IN THE MATTER OF THE ESTATE OF KARL F. LINDGREN, Deceased.
    No. 94-238.
    Submitted on Briefs October 13, 1994.
    Decided November 23, 1994.
    51 St.Rep. 1182.
    268 Mont. 96.
    885 P.2d 1280.

      For Appellant: John T. Jones, Moulton, Bellingham, Longo & Mather, Billings.
    For Respondent: Gene A. Picotte, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a probate order issued by the Fifth Judicial District Court, Jefferson County. We reverse in part and affirm in part. We consider the following issues on appeal:

I. Did the District Court err in ordering the Trustee to invade the Trust estate to the extent of paying one half of Anna D. Lindgren’s monthly health care and housing costs?
II. Did the District Court err in denying the Conservator’s request for reimbursement of the nursing care and housing costs that Anna D. Lindgren’s conservatorship incurred prior to June 1, 1994?
III. Did the District Court err in ordering the Trustee to invade the Trust estate to pay one-half of Anna D. Lindgren’s burial and funeral expenses?
IV. Did the District Court err in denying Conservator’s request for attorney fees?

Karl F. Lindgren (hereinafter Decedent) died on April 15, 1993, in Lewis & Clark County, Montana. Decedent’s will established a Trust in which his surviving spouse, an Alzheimer sufferer, is the sole beneficiary (hereinafter referred to as Beneficiary.). The Trustee of the Trust is Decedent’s cousin, Gladys E. Tellessen (hereinafter referred to as Trustee.) The purposes of the Trust are to “provide for and assure so far as possible, the generous care and support” of Beneficiary during her lifetime and to pay for her burial and funeral expenses.

On August 2,1993, the Thirteenth Judicial District Court, Yellowstone County, appointed Patsy A. Martin (hereinafter referred to as Conservator), daughter of Beneficiary, to serve as the guardian and conservator for Beneficiary, due to her deteriorating condition. Beneficiary resides in a Billings nursing home and incurs $3,000 per month nursing care expenses. Conservator has requested that the Trustee of the Testamentary Trust assist the conservatorship by providing for the monthly care of Beneficiary. Trustee has refused all such requests for aid because Beneficiary has failed to establish a financial need.

Conservator petitioned the probate court for an order requiring the Trustee of Karl Lindgren’s Testamentary Trust to distribute income and/or principal from the Trust to pay for Beneficiary, Anna D. Lindgren’s nursing care, medications, and expenses. Also, the petition sought reimbursement for the funds Conservator had expended on the care of Beneficiary since the death of Mr. Lindgren.

The court issued its findings and order on April 22, 1994. That order ruled that the Trustee must invade the Trust to pay for one-half of Anna Lindgren’s monthly health care and housing costs and one half of her burial and funeral costs. Also, in that order the court denied the request for reimbursement of Beneficiary’s expenses from the time period of her husband’s death to June 1,1994. Finally, the court denied Conservator’s request for attorney fees.

Conservator filed a Notice of Appeal on May 18, 1994; she amended, and refiled the appeal on May 24, 1994. Trustee filed a Notice of Cross-Appeal on June 1, 1994.

I

Did the District Court err in ordering the Trustee to invade the Trust estate to the extent of paying one half of Anna D. Lindgren’s monthly health care and housing costs?

Conservator argues that the wording of the Trust makes it clear that the Trust was supposed to assume the expense of Beneficiary’s care and support following the death of Karl Lindgren. Conservator contends that the Trustee abused her discretion by refusing all requests for help.

The respondent Trustee argues that the word “Necessary” in the Trust means that Beneficiary must expend her own funds before the Trustee invades the Trust.

The following are the pertinent provisions of the Will:

1. The term of this Trust is from the time of my death to the time of death of my wife, ANNA DELL LINDGREN. If said wife shall not survive me, this Trust shall not come into existence.
2. The sole beneficiary of this Trust is my said wife, ANNA DELL LINDGREN.
3. The purposes of this Trust are to provide for and assure, so far as possible, the generous care and support of my said wife, ANNA DELL LINDGREN, after my death for so long as she shall live and to provide for funeral, burial, and any other expenses attendant upon and resulting from her death.
4. The Trustee shall, in her, his or its sound discretion, pay to or apply for my said wife as much of the Trust income and Trust principal as Trustee deems necessary for her support, care and health during her life time. The discretion of the Trustee shall be exercised liberally in favor of my said wife, it being my intention that she shall have, in addition to the necessities, a reasonable number of the luxuries of life, if she desires them.
5. The Trustee shall have all of the powers, duties, and obligations set forth and described in Sections 72-21-101 through 72-21-206, MCA. Any other powers, obligations and duties in any other applicable laws of the State of Montana are also conferred upon the Trustee.
6. Upon the death of my said wife after my death, this Trust shall terminate and the Trustee shall, with deliberate speed, convert the Trust property entirely to cash, and after payment of all debts and obligations of the Trust, if any, distribute absolutely and unconditionally all thereof to the beneficiaries and in the amounts and proportions designated and determined by the provisions of Paragraph SEVENTH, hereinafter.

This Court reviews a district court’s findings as to whether they are clearly erroneous; that is whether they are supported by substantial evidence, whether the court correctly apprehended the evidence, and despite the satisfaction of the first two concerns, whether we are still left with a firm conviction that a mistake has been made. Tonack v. Montana Bank of Billings (1993), 258 Mont. 247, 854 P.2d 326. The Supreme Court’s review of a district court’s conclusions of law is simply whether the conclusions are correct. Weber v. Rivera (1992), 255 Mont. 195, 841 P.2d 534.

The court found that the discretionary provisions of the Trust justified the Trustee in denying Conservator’s request for contribution to Beneficiary. The court found that there was no “need” for the Trust to be invaded. Having said this, however, the court went on to determine that the true spirit and intent of the will had been contradicted. The court then charged the Trust with one half of Beneficiary’s future expenses and one half of her future funeral and burial expenses. The court denied retroactive contributions from the Trust concerning Mrs. Lindgren’s care upon her husband’s death and also denied Conservator’s request for attorney fees.

The District Court specifically points to the word “need” and roots its decision there. The Court should determine the testator’s intent, the ruling concern, by analyzing the will in its entirety, not select provisions on their own. Matter of Estate of Evans (1985), 217 Mont. 89, 704 P.2d 35. In analyzing the entire Trust as a whole, we are left with the firm conviction that Karl Lindgren carefully worded the instrument to carry out the specific purpose of caring for his wife from the time of his death to her own death. If the wording of the will is clear and unambiguous, the court shall not consider extrinsic evidence or the circumstances surrounding the execution of the will. Matter of Estate of Greenfield (1988), 232 Mont. 357, 757 P.2d 1297.

What the District Court did was to set the word “need” above the intent of the Trust. That one word cannot be construed in such a way as to negate or even diminish the sole purpose of the Trust which was to provide Mr. Lindgren’s beloved wife with monetary support for both necessities and luxuries during her life and for funeral and burial expenses upon death. We will not interpret the liberal Trust language by way of a limited reading of the word “necessary,” referred to by the court as “need.” The Trust does not itself contain any limiting language. WTiile the Trust states that the Trustee has sound discretion it also directs the Trustee to exercise that discretion “liberally” in favor of Mrs. Lindgren. There is nothing in the record to indicate that the Trustee adopted this liberal attitude toward the care of the Beneficiary. The Trustee denied every request for help from Mrs. Lindgren’s Conservator. The denial was not in compliance with the purposes of the Trust.

The Trustee would have us determine that Mrs. Lindgren must expend or dispose of her personal estate before the Trust can be invaded. The Trust does not provide for the expenditure of Beneficiar/s estate before any payments are to be made from the Trust. We will not read into the instrument this limitation. Nor will we consider case law from other jurisdictions when the Trust instrument itself is clear.

We can reach no other conclusion than that the Trust itself is clearly worded to provide for Mrs. Lindgren’s total care from the time of Mr. Lindgren’s death until Mrs. Lindgren’s own death. Therefore, it is the Trust itself that is solely liable for Mrs. Lindgren’s care from the day her husband died. We hold that the District Court erred in ordering the Trustee to invade the Trust estate to the extent of paying one half of Anna D. Lindgren’s monthly health care and housing costs.

We reverse the court order requiring the Trust to pay for only half of Mrs. Lindgren’s expenses and direct the District Court to enter an order for the Trustee to pay for Mrs. Lindgren’s total living and medical expenses.

II

Did the District Court err in denying the Conservator’s request for reimbursement of the nursing care and housing costs that Anna D. Lindgren’s conservatorship incurred prior to June 1, 1994?

In its April 22,1994 order the court directed the Trustee to pay for one half of Mrs. Lindgren’s expenses beginning after June 1, 1994. Appellant argues that she should be reimbursed for the money she spent from her mother’s personal finances on her mother’s care before June 1, 1994. Respondent merely argues that Mrs. Lindgren’s funds must be consumed before the Trust begins.

Again, we emphasize that the clear language of the Trust states that it begins “from the time of my death to the time of death of my wife, ANNA DELL LINDGREN.” Therefore, the testator’s clear intent is that the Trust begin at his death. Because the Trustee failed to pay for any of Mrs. Lindgren’s expenses in the manner in which the Trust directs, the court erred in refusing to reimburse Mrs. Lindgren’s Conservator.

We reverse the court’s refusal to reimburse the Conservator for funds expended heretofore on Mrs. Lindgren’s care. The court is directed to order the Trustee to reimburse the Conservator for all monies already spent for the care of Mrs. Lindgren from the date of Mr. Karl Lindgren’s death.

Ill

Did the District Court err in ordering the Trustee to invade the Trust estate to pay one-half of Anna D. Lindgren’s burial and funeral expenses?

In addition to requiring the Trust to pay for half of Mrs. Lindgren’s expenses, the court ordered the Trust to pay for half of her burial and funeral expenses. Appellant argues that the Trust provided for the complete payment of Mrs. Lindgren’s funeral and burial expenses.

According to paragraph 3 of the Testamentary Trust, the Trustee has no discretion in paying Mrs. Lindgren’s complete funeral and burial expenses. We hold that the District Court erred in splitting the cost between the parties. We reverse the District Court’s ruling on this issue and direct the court to issue an order that the Trust will be fully responsible for all burial and funeral expenses.

IV

Did the District Court err in denying Conservator’s request for attorney fees?

Appellant argues that the court should have awarded her attorney fees because she had to file this action in order to force the Trust to begin its prescribed duties. Respondent argues that in absence of a special statute, or stipulation of the parties, or rule of court, that attorney fees cannot be awarded.

The District Court denied attorney fees. In this, the court was correct. The longstanding rule in Montana is that, absent statutory or contractual authority, attorney fees will not be awarded. Goodover v. Lindey’s (1992), 255 Mont. 430, 843 P.2d 765. There is no statutory or contractual requirement for an award of attorney fees.

In certain instances in which bad faith or malicious behavior are involved, this Court has made an equitable award of attorney fees. Goodover, 255 Mont. at 446, 843 P.2d at 774-75. However, this equitable consideration is only invoked infrequently. Goodover, 255 Mont. at 446, 843 P.2d at 775. The record does not show either bad faith or malicious behavior. We affirm the denial of attorney fees.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion, but for reasons other than those set forth in that opinion.

Paragraph 4 of Karl Lindgren’s testamentary trust directed the trustee to pay from trust income and principle those expenses “necessary for her [Anna’s] support, care, and health during her lifetime.” (Emphasis added.) The issue in this case is simply whether the term “necessary” describes the type of expenses to be paid for, or Anna’s financial need that those expenses be paid by the trust.

This issue has been resolved in other jurisdictions based on reasoning and precedent that I conclude is persuasive.

In Godfrey v. Chandley (Kan. 1991), 811 P.2d 1248, the decedent established a testamentary trust for the benefit of his surviving spouse. In that trust, he provided that net income of the trust was to be paid to the beneficiary ‘“as may be necessary for her support, health and maintenance.’” Godfrey, 811 P.2d at 1250 (emphasis added). The Supreme Court of Kansas was asked to decide, as we are, whether the beneficiary was entitled to the trust income for her support, health, and maintenance without regard to her personal income. The remainderman named in the will argued that the term “necessary” limited expenditures from trust income to “only those expenses which exceeded [the beneficiary’s] personal income.” Godfrey, 811 P.2d at 1251. However, in concluding otherwise, the Supreme Court of Kansas set forth the following rules of interpretation:

Whether a trustee can consider the personal income of a trust beneficiary is to be determined from the language of the instrument and surrounding circumstances. See Bogert, Trusts and Trustees § 811, p. 229 (rev. 2d ed. 1981). Where the trust settlor manifests an intention that the trust property be applied to the beneficiary’s support only if and to the extent the beneficiary is in actual need, then the beneficiary is not entitled to support from the trust fund if other sufficient resources are available. See Dunklee v. Kettering, 123 Colo. 43, 46, 225 P.2d 853 (1950); First National Bank of Catawba County v. Edens, 55 N.C.App. 697, 704, 286 S.E.2d 818 (1982). See generally 2 Scott on Trusts § 128.4 (Fratcher 4th ed. 1987). On the other hand, where a settlor directs the trustee to pay the beneficiary so much as is necessary for support and maintenance, an inference arises that the settlor intended the beneficiary to receive support from the trust estate, regardless of other income. See Taylor v. Hutchinson, 17 Ariz.App. 301, 304-05, 497 P.2d 527 (1972); Estate of Wells v. Sanford, Trustee, 281 Ark. 242, 246-47, 663 S.W.2d 174 (1984); Hamilton Nat. Bank v. Childers, 233 Ga. 427, 428, 211 S.E.2d 723 (1975); In re Coats Trust, 581 S.W.2d 392, 393-96 (Mo.App.1979); see Restatement (Second) of Trusts § 128, comment e (1957).

Godfrey, 811 P.2d at 1251.

For these reasons, the Kansas Court held as follows:

We hold the trustee shall pay Peggy support, health, and maintenance for the period of her natural life irrespective of her individual income. The testator obviously intended to provide maintenance for his wife for her life. His provision is limited only by what is necessary. In other words, it cannot be used to provide nonessential items.

Godfrey, 811 P.2d at 1253.

The same interpretation of the word “necessary,” as it described expenditures from a testamentary trust, was applied in Renner v. Castellano (N.J. Super. Ct. Ch. Div. 1952), 91 A.2d 176, 180, where that court held that:

The word “necessary” as used here in the first paragraph, considered with the context, and in the light of the surrounding circumstances, refers to what is required to accomplish testator’s intention, namely, the comfortable maintenance and care of his widow, the scope, the range, and the cost of it. Without doing violence to every other expression in the will, it could not be said that the benefaction was conditional upon the widow’s financial ability to support and maintain herself. Cf. Camden Safe Deposit & Trust Co. v. Read, 124 N.J.Eq. 599, 4 A.2d 10 (Ch. 1939), in which it was held that the word “necessary” did not refer to the beneficiary’s inability to meet the expense of certain stated contingencies. In accord is Estate of Wells v. Sanford (Ark. 1984), 663 S.W.2d 174,

176-77.

Based on the above authority, I conclude that the term “necessary,” as used in Paragraph 4 of Karl Lindgren’s testamentary trust, refers to the type of expenditures the trustee is authorized to incur. They include, at a minimum, those expenditures related to Anna’s support, housing, and health care during her lifetime. The term “necessary,” as used in Karl’s testamentary trust, does not refer to Anna’s ability to pay for those expenses from her own financial assets.

For these reasons, I specially concur with the majority’s conclusion that the trustee is obliged, under the terms of Karl Lindgren’s testamentary trust, to pay for Anna Lindgren’s total living and medical expenses from and after the date of her husband’s death.

I also concur with the majority’s conclusions under Issues III and IV of its opinion.

JUSTICE GRAY joins in the foregoing concurring opinion.


text:
    BRAND E. CAEKAERT, Petitioner and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent/Insurer and Respondent, FRANK WILSON PLUMBING AND HEATING, Employer.
    No. 94-018.
    Submitted on Briefs September 1, 1994.
    Decided November 22, 1994.
    51 St.Rep. 1202.
    268 Mont. 105.
    885 P.2d 495.

      For Appellant: Patrick G. Frank, Worden, Thane & Haines, Missoula.
    For Respondent: William J. Mattix, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellant Brand E. Caekaert filed a petition in the Workers’ Compensation Court for the State of Montana in which he sought medical and disability benefits from the State Compensation Mutual Insurance Fund (State Fund). The Workers’ Compensation Court denied Caekaert’s petition. He appeals that decision. We reverse the judgment of the Workers’ Compensation Court.

The following issues are presented on appeal:

1. Did the Workers’ Compensation Court err when it denied Caekaert’s claim for medical expenses?

2. Did the Workers’ Compensation Court err when it denied Caekaert’s claim for temporary total disability benefits?

3. Did the Workers’ Compensation Court err when it denied Caekaert’s claim for reasonable attorney fees and costs?

FACTUAL BACKGROUND

Caekaert is a journeyman plumber residing in Billings. He also owns an independent poultry business that he began in approximately 1987. In January 1988, Caekaert began working as a plumber for Frank Wilson Plumbing and Heating. In early February 1988, Dr. S. Arthur Frankel determined that Caekaert was suffering from bilateral carpal tunnel syndrome. On February 10, and March 2, 1988, Dr. Frankel performed median nerve release procedures on Caekaert’s left and right hands respectively. The State Fund insured Caekaert’s employer at the time the carpal tunnel syndrome was diagnosed. In November 1988, Caekaert filed a claim for benefits under the Montana Occupational Disease Act. The State Fund accepted liability, covered the medical expenses, and paid Caekaert temporary total disability benefits.

As early as May 1988, Caekaert visited other doctors to complain of recurring symptoms. In June and July 1988, Dr. Richard P. Lewallen, an orthopedic surgeon in Billings, referred Caekaert to Dr. Donald H. See, a neurologist, for nerve conduction tests. Dr. See’s tests indicated that the condition of Caekaert’s right median nerve had worsened. Following these tests, Caekaert was referred to Dr. Jeffrey Hansen, Dr. Lewallen’s partner, who specializes in carpal tunnel surgery. Dr. Hansen has remained Caekaert’s treating physician for his symptoms related to carpal tunnel entrapment since July 7,1988.

Dr. Hansen formed the opinion that Dr. Frankel’s surgeries were unsuccessful and concluded that re-exploration surgery on both hands was necessary. Dr. Hansen also concludéd that Caekaert’s symptoms became worse following the surgeries performed by Dr. Frankel. Dr. Hansen and Dr. Lewallen were additionally concerned that Caekaert’s median nerve was compressed not only at his wrist, but at his elbow. Despite these opinions, Dr. Hansen adopted a conservative approach to treatment because Caekaert was uncertain about further surgery. Dr. Hansen decided to wait and see if Caekaert’s condition would improve.

In November 1992, Caekaert’s hands reached the point where he felt surgery was again necessary. Dr. Hansen explained that the re-exploration procedures were necessary to alleviate the same symptoms that existed in June and July of 1988. On December 11, 1992, Dr. Hansen performed surgery for release of the median nerve at Caekaert’s right wrist and just below his right elbow. On February 12, 1993, Dr. Hansen performed another release procedure for the median nerve at Caekaert’s left wrist and elbow. Dr. Hansen testified that the 1992 and 1993 surgeries left Caekaert totally disabled for six to eight weeks following each surgical procedure.

Between the 1988 procedures and the 1992 and 1993 procedures, Caekaert worked sporadically. On June 27, 1988, Caekaert briefly returned to work as a plumber for Star Service. On July 15, 1988, while working for Star Service at St. Vincent’s Hospital, Caekaert injured his back. He returned to work for Star Service at a Reedpoint job site after a couple of weeks. In September, he quit his job with Star Service, claiming that the commute to Reedpoint from Billings hurt his back and that his hands still bothered him. Caekaert also worked periodically doing various jobs for his poultry business.

Following the 1992 and 1993 surgeries, Caekaert submitted his medical bills to the State Fund. However, the State Fund denied liability. Caekaert then petitioned the Workers’ Compensation Court for an award of medical expenses and disability benefits. After trial, the Workers’ Compensation Court concluded that the State Fund was not liable.

In its Finding No. 18, the court found that Caekaert, in depositions and interrogatories in a separate claim related to his back injury, stated that his carpal tunnel syndrome did not prevent him from working and that his symptoms dramatically improved after surgery. In its Finding No. 14, the court found that Caekaert, in the previous litigation, claimed that he was permanently totally disabled from the back injury. In its Finding No. 22, the court noted that Dr. Hansen stated that Caekaert had reached “medical stability” on May 18, 1989. The court also pointed out that between 1988 and 1992 Caekaert continued to work in his poultry business, and in Finding No. 26, expressed skepticism regarding Caekaert’s testimony that he did as little strenuous work as possible in that business. In Finding No. 34, the court observed that Dr. Hansen stated that Caekaert’s activity between the surgeries probably incrementally increased the problem, but Dr. Hansen stated that it was a difficult question of causation. Finally, in Finding No. 35, the court found that Dr. Hansen’s testimony, and Caekaert’s activity in the poultry business, established that Caekaert’s activity made his condition permanently worse.

The court’s conclusions of law are also important to this appeal. In Conclusion No. 2, the court concluded that because Caekaert’s work in the poultry business aggravated his carpal tunnel problem, the State Fund is not responsible for the medical expenses or the temporary total disability benefits. In Conclusion No. 4, the court stated that Caekaert’s claim for temporary total disability is barred by judicial estoppel because in previous litigation he claimed that his back injury left him permanently and totally disabled. The court concluded that because Caekaert claimed the back injury left him permanently disabled, he suffered no lost earnings after the 1992 and 1993 surgeries. The court noted that Caekaert was not judicially estopped from receiving medical benefits because previous testimony established that his 1988 carpal tunnel surgeries were not 100 percent successful. Finally, the court concluded that Caekaert was not entitled to recover his attorney fees or costs. Caekaert appeals from these findings and conclusions.

DISCUSSION

ISSUE 1

Did the Workers’ Compensation Court err when it denied Caekaert’s claim for medical expenses?

In reviewing a Workers’ Compensation Court decision, this Court examines whether the court’s findings of fact are supported by substantial credible evidence. Buckentin v. State Compensation Ins. Fund (1994), 265 Mont. 518, 878 P.2d 262, 263. If there is conflicting evidence, we examine whether substantial evidence supports the Workers’ Compensation Court, not whether the evidence might support contrary findings. Buckentin, 878 P.2d at 263. We review the Workers’ Compensation Court’s conclusions of law to decide whether the court’s determination of the law is correct. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394. Where medical testimony is offered by deposition, this Court sits in as good a position as the Workers’ Compensation Court to determine the weight of the medical testimony. McIntyre v. Glen Lake Irrigation Dist. (1991), 249 Mont. 63, 67, 813 P.2d 451, 454. Nonetheless, the medical testimony must be considered in the context of other testimony that the trial court did in fact have an opportunity to observe if it is relevant to medical issues. McIntyre, 813 P.2d at 454.

It is undisputed that the State Fund accepted responsibility for the 1988 surgeries. The issue is whether the State Fund, as the initial insurer, remains liable for the subsequent surgery.

Caekaert claims he is entitled to wage benefits and medical expenses based on § 39-72-704, MCA (1987), which provides:

In addition to the compensation provided by this chapter, an employee who becomes either totally or partially disabled from an occupational disease is entitled to receive for treatment of the occupational disease, without limitation as to length of time or dollar amount, reasonable medical services, hospitalization, medicines, and other treatment approved by the division.

(Emphasis added.)

In response, the State Fund contends it is not responsible for the 1992 and 1993 surgeries because Caekaert aggravated his condition by working in the poultry business between 1988 and 1992. The State Fund asserts that the Workers’ Compensation Court correctly concluded that the ‘last injurious exposure doctrine” applies. See Belton v. Carlson Transport (1983), 202 Mont. 384, 389, 658 P.2d 405, 408 (holding once a claimant reaches maximum healing or a medically stable condition, the initial insurer at risk is not responsible for subsequent injuries or conditions); EBI/Orion Group v. State Compensation Mutual Ins. Fund (1991), 249 Mont. 449, 452, 816 P.2d 1070, 1072. Montana statutorily recognizes a version of the last injurious exposure rule in occupational disease cases. Section 39-72-303(1), MCA, provides that “[w]here compensation is payable for an occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease.” (Emphasis added.)

We have not construed this statute, but Larson’s Workmen’s Compensation Law treatise states that recurrences of disabilities in occupational disease cases should be treated the same as accidental injury cases. Larson § 95.27. Larson also recognizes that:

[W]hen disability has once resulted from occupational disease, a second disability occurring under a different carrier will be chargeable to the first carrier if it is a recurrence of the first disability. The persistence of symptoms in the meantime, and the failure to demonstrate an incident that can independently explain the second onset, are strong grounds for finding a mere recurrence ....
However, if the later exposure should increase the degree of disability caused by the initial exposure, the second carrier might become responsible; but in such a case it would be necessary to distinguish carefully between the increased disability from natural progress of the disease and that resulting from the added exposure.

Larson § 95.27 (emphasis added). The State Fund asserts that Caekaert’s activity between surgeries actually and proximately caused the need for additional surgeries. The statutory language indicates that the only employer liable is the employer where the employee was last injuriously exposed. As the language from Larson indicates, the first insurance company is liable for the second disability if it is a recurrence.

To succeed in its last injurious exposure defense, the State Fund must show that the subsequent surgeries did not result from Caekaert’s initial occupational disease. In other words, for the last injurious exposure rule to apply, there must be evidence of a second injury or injurious exposure that materially or substantially contributed to Caekaert’s symptoms from carpal tunnel syndrome. See Peterson v. Eugene F. Burrill Lumber (Or. 1983), 660 P.2d 1058, 1061.

A later injury is compensable by the original carrier if it is a direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant. Rightnour v. Kare-Mor, Inc. (1987), 225 Mont. 187, 189, 732 P.2d 829, 830-31. If the original injury or occupational disease was the cause of the current condition, the State Fund is liable.

Applying the rules for review set forth previously, and the above law, we then consider the medical evidence pertaining to this issue.

The only medical testimony offered at the trial of this case was that of Dr. Hansen, which was offered by deposition. He testified that although excellent relief was observed by Dr. Frankel a week or two after the 1988 surgery on Caekaert’s wrists, most of the symptoms had returned by several months after those surgical procedures. Based on that development, both he and Dr. Lewallen shared the opinion that the nerve had either been overgrown by scar tissue, was again entrapped by a ligament, or had actually been compressed at more than the level at which it was released.

Dr. Hansen unequivocally testified that Caekaert’s carpal tunnel syndrome had not improved following the original surgery, and, based on nerve conduction studies, his opinion was that the condition had worsened. As a result, as early as July 1988 both he and Dr. Lewallen were of the opinion that re-exploration surgery would be necessary — long before Caekaert did the work on his poultry farm to which the Workers’ Compensation Court attributed his 1992 and 1993 surgical procedures.

Dr. Hansen testified that in November 1992, when Caekaert finally consented to undergo further surgical treatment, he was basically suffering from the same condition for which Dr. Frankel had treated him in 1988. He gave the following unequivocal opinion when asked whether the surgical procedures he performed in 1992 and 1993 were necessary due to the condition for which he originally saw Caekaert in 1988:

Q. Dr. Hansen, is it your opinion that the releases that you are referring to here in Exhibits 9 and 10 were done to alleviate the condition that existed for as long as you treated Mr. Caekaert?
A. Yes, I feel that quite strongly.
Q. And is that opinion based on a reasonable medical probability? A. Yes, I believe it is.

After describing what he observed during the surgeries that he performed, Dr. Hansen gave the following additional opinion testimony:

Q. In January of ’89, now that you have done the operations, do you believe that you would have found the conditions that you found upon operating back in January ’89?
Q. Do you understand my question?
A. Yes. I think the findings would have been identical if we would have done the operation, you know, a month after we first saw him.

The only testimony that Dr. Hansen gave which related Caekaert’s condition for which the 1992 and 1993 surgeries were performed to a particular event, related it to the condition in which Caekaert found himself following his 1988 surgical procedures for which the State Fund has accepted liability. In answer to questions posed on cross-examination, Dr. Hansen did concede that Caekaert’s conditions worsened periodically in relation to the extent of his activities, but explained that worsened symptomatology and worsened condition are not the same thing. He also pointed out that every time Caekaert discontinued working on his poultry farm, his condition basically went back to the baseline state that Dr. Hansen observed when he originally examined him. He testified that while continued activity may worsen the type of condition for which he treated Caekaert, the amount was not quantifiable and, while he did acknowledge that the type of activity Caekaert engaged in on the poultry farm can lead to a progression of symptoms, at no time did he express an opinion that the surgery he performed in 1992 and 1993 was necessary because of a progression of Caekaert’s symptoms. His testimony was clearly that whether Caekaert’s symptoms worsened over time or not, the additional surgical procedures that he performed were necessary due to the condition that he believed existed when he first saw Caekaert in July 1988.

Toward the end of the State Fund’s cross-examination of Dr. Hansen, he made the following concluding remark:

A. Basically he [had] about the same indications all along, maybe a little bit worse now, but really not a lot different than he did very early on in his care ....

We have recognized that, in cases where a claimant is reinjured before the first injury reaches a medically stable condition, and the first insurer disclaims coverage, the burden of proof falls on the insurance company at risk at the time of the accident the claimant alleges causes his injury. Belton, 658 P.2d at 409-10; O’Brien v. Central Feeds (1990), 241 Mont. 267, 272, 786 P.2d 1169, 1172. In EBI/Orion, we noted that to avoid liability, the initial insurer must show that (1) the claimant reached maximum healing; and (2) that he or she sustained an injury after reaching maximum healing. EBI/Orion, 816 P.2d at 1072.

In O’Brien, the claimant received numerous injuries under different insurers. Doctors testified that although it was possible that a number of events could have aggravated conditions after claimant’s original injury, the original injuries were more likely than not related to his present condition. O’Brien, 786 P.2d at 1171. We reasoned that there was no conclusive evidence that the claimant reached maximum healing before the subsequent injury. Although a doctor testified that it was possible that other events could have aggravated the claimant’s condition, we concluded that medical possibility, absent more persuasive evidence, is not enough to prove a claimant reached maximum healing before subsequent employment. O’Brien, 786 P.2d at 1172. We also stated that a medical release to return to work is not sufficient to establish maximum healing. O’Brien, 786 P.2d at 1172-73.

In this case, the State Fund had the burden of proving that Caekaert reached maximum healing. It had to sufficiently explain the second onset, proving it was not a recurrence of symptoms from the 1988 surgeries for which it accepted liability. However, it did not introduce sufficient evidence to establish that Caekaert reached maximum healing, or that he reinjured himself.

Dr. Hansen supplied medical testimony, by deposition, regarding the 1992 and 1993 surgeries. He testified that almost immediately following the 1988 surgeries Caekaert required additional surgery. He also testified, consistent with Dr. Lewallen’s opinion, that the later surgeries required releases of the median nerves at both elbows. Any suggestions in Dr. Hansen’s testimony that Caekaert’s activity subsequent to 1988 contributed to his current condition was equivocal at best and does not change the fact that surgery was necessary before any “possible” aggravation occurred. Moreover, medical possibility, absent more persuasive evidence, is not sufficient to establish that Caekaert’s activity caused a subsequent injurious exposure which would reheve the State Fund of liability. See O’Brien, 786 P.2d at 1172. Because the State Fund did not offer substantial evidence that a second event or exposure caused Caekaert to undergo surgical procedures in 1992 and 1993, the Workers’ Compensation Court incorrectly concluded that the last injurious exposure rule barred Caekaert’s claim.

For these reasons, we conclude that the Workers’ Compensation Court erred by not holding the State Fund liable for Caekaert’s medical expenses following the second set of surgical procedures.

ISSUE 2

Did the Workers’ Compensation Court err when it denied Caekaert’s claim for temporary total disability benefits?

Although the above analysis also supports awarding Caekaert temporary total disability benefits following the 1992 and 1993 surgeries, the Workers’ Compensation Court concluded that Caekaert was judicially estopped from asserting this claim.

The Workers’ Compensation Court concluded that because Caekaert, in depositions and affidavits in litigation following his 1988 back injury, claimed that the back injury left him permanently and totally disabled, he is now estopped from claiming temporary total disability. In other words, because he claimed his back injury rendered him unable to earn income, he suffered no lost wages following the 1992 and 1993 hand surgeries.

We previously recognized the doctrine of judicial estoppel in Rowland v. Klies (1986), 223 Mont. 360, 726 P.2d 310. Under this doctrine, we do not permit litigants to assert inconsistent and contradictory positions in separate litigation. The clearest reason for the rule is to prevent parties from playing “fast-and-loose with the courts.” Rowland, 726 P.2d at 315. To give rise to judicial estoppel, the first representation must have been made knowingly and free from the other party’s inducement; it applies particularly to admissions or positions asserted under oath or in previous litigation. Rowland, 726 P.2d at 315. In Rowland, we also cited a Texas case for the proposition that judicial estoppel does not apply when the previous position is uncertain or based on facts not yet determined. Rowland, 726 P.2d at 316 (citing LaChance v. McKown (Tex. Ct. App. 1983), 649 S.W.2d 658, 660).

Although we agree with the above stated principles of judicial estoppel, that doctrine does not apply here. Caekaert did not offer inconsistent testimony in a previous case. He previously claimed that his back pain was so severe that it forced him to quit working for Star Service and left him with no earning capacity. However, Caekaert had injured his back and was merely describing his physical condition following that injury. Caekaert did not, and because he is not a medical professional, could not, anticipate the duration of his disability from that injury.

The State Fund contends on appeal that the real basis for applying judicial estoppel is testimony given by Caekaert in 1991 that the condition of his hands at that time did not preclude him from returning to work. However, the State Fund’s argument, as well as the trial court’s conclusion, confuses the concepts of “permanent total disability,” “permanent partial disability,” and “temporary total disability.”

Permanent total disability, according to the terms in effect at the time that Caekaert’s condition occurred, referred to a worker who had reached maximum healing and was unable to return to work in his job pool. Section 39-71-116(15), MCA (1987). Permanent partial disability referred to a worker who had reached maximum healing but was left with physical restrictions which affected his wages. Section 39-71-116(14), MCA (1987).

The only disability benefits sought in this case are temporary total disability benefits. Those are awarded to a worker who sustains a total loss of wages because he has not yet reached maximum healing. Section 39-71-116(21), MCA (1987). It was Dr. Hansen’s undisputed testimony that Caekaert would be temporarily totally disabled for six to eight weeks following each of the procedures that he performed in 1992 and 1993. Whether he was able to work prior to those surgical procedures in spite of median nerve symptomatology, and whether at some time several years earlier he was totally unable to work because of back complaints, is irrelevant. The record established that although Caekaert was unable to return to work as a plumber because of his back injury, he did return to some form of gainful employment prior to the surgeries performed by Dr. Hansen and was subsequently removed from any form of occupation for a short period of time due to further surgery.

We conclude that Caekaert’s prior testimony regarding the impact of his back injury on his ability to work as a plumber, and his prior statements regarding his ability to work in spite of ongoing symptoms from carpal tunnel syndrome, are not inconsistent with his claim for temporary total disability benefits while he recovers from the surgical procedures that were performed in 1992 and 1993. Therefore, we conclude that he is not judicially estopped from claiming and receiving temporary total disability benefits in this case.

ISSUE 3

Did the Workers’ Compensation Court err when it denied Caekaert’s claim for reasonable attorney fees and costs?

Caekaert requested the Workers’ Compensation Court to award attorney fees and a statutory penalty under §§ 39-71-611 and -2907, MCA (1987). Section 39-71-611, MCA, provides for attorney fees if the insurer was unreasonable. Likewise, § 39-71-2907, MCA, provides for statutory penalties where the insurer unreasonably delays or refuses to pay compensation. The issue of reasonableness is one for the Workers’ Compensation Court to decide, based on all of the evidence. Therefore, this case is remanded to the Workers’ Compensation Court for reconsideration of the attorney fee and penalty issues, after taking into consideration this decision, and all of the evidence.

The judgment of the Workers’ Compensation Court is reversed and this case is remanded for the limited purpose of considering Caekaert’s claim for attorney fees, costs, and the statutory penalty, and the duration of any temporary total disability benefits to which Caekaert is entitled.

JUSTICES GRAY, HUNT, NELSON and WEBER concur.