author: JUSTICE HUNT CHIEF JUSTICE TURNAGE

text:
    FRAZER EDUCATION ASSOCIATION, MEA/FEA, Plaintiff and Respondent, v. BOARD OF TRUSTEES, VALLEY COUNTY ELEMENTARY SCHOOL DISTRICT NO. 2 and HIGH SCHOOL DISTRICT NO. 2B, Defendants and Appellants.
    No. 92-295.
    Submitted on Briefs November 12, 1992.
    Decided January 21, 1993.
    50 St.Rep. 41.
    256 Mont. 223.
    846 P.2d 267.

      For Appellants: James D. Rector, Glasgow.
    For Respondent: Emilie Loring, Hilley & Loring, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and respondent, Frazer Education Association (Union) brought suit in the District Court for the Seventeenth Judicial District, Valley County, against defendants and appellants, Trustees of the Valley County School District (School District). The Union filed suit to compel arbitration pursuant to the Uniform Arbitration Act found at Sections 27-5-101 through -324, MCA, and the terms of the collective bargaining agreement in effect at the time between the parties. The School District appeals from the District Court’s judgment granting summary judgment to the Union. We affirm.

The only issue before the Court is whether the District Court erred in granting summary judgment.

In September 1990, former Frazer School Superintendent John Marlett recommended to the School District Board of Trustees that tenured teacher James Wheeler be dismissed pursuant to Section 20-4-207, MCA. Following a hearing by the Board of Trustees on the Superintendent’s recommendation, the Board dismissed Wheeler from his teaching position.

Wheeler filed a notice of appeal of his dismissal with the Valley County Superintendent of Schools pursuant to statute on December 21, 1990. On January 11, 1991, three days prior to the scheduled hearing, Wheeler requested a continuance. The hearing was reset for March 14, 1991. On January 16, 1991, the Union filed a grievance under the terms of the collective bargaining agreement regarding Wheeler’s dismissal. The Superintendent declined to process the Union’s grievance in light of the pending statutory appeal and the Superintendent’s interpretation of this Court’s decision in City / County of Butte-Silver Bow v. State (1987), 225 Mont. 286, 732 P.2d 835.

Wheeler dismissed his statutory appeal on March 4,1991, ten days prior to the scheduled hearing. On May 18,1991, the Union filed this suit to compel arbitration of its previously filed grievance. Both parties filed motions for summary judgment in late 1991. Following a stay pending this Court’s decision in Colstrip Faculty v. Rosebud County Trustees (1992), 251 Mont. 309, 824 P.2d 1008, the matter was submitted on briefs. The District Court heard oral argument by long distance telephone conference call regarding the motions for summary judgment. The District Court then filed a memorandum opinion and order granting the Union’s motion for summary judgment and denying the School District’s motion for summary judgment. The School District appeals.

The only issue before the Court is whether the District Court erred in granting summary judgment in favor of the Union.

A district court judge may grant summary judgment when:

[T]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136; Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of showing that there is a complete absence of any genuine issue of material fact. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. Summary judgment is never an appropriate substitute for a trial if a factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. Upon reviewing a grant or denial of a motion for summary judgment, this Court applies the same standard as the district court.

The question before the District Court was whether a union may pursue a grievance to arbitration under the terms of a collective bargaining agreement, even though one of its members may have sought remedy by initiating a distinct statutory appeal process. This is essentially the same issue that was before this Court in the Colstrip case. However, in Colstrip we did not reach this issue as the case was decided on narrower procedural grounds.

The School District concedes that upon dismissal Wheeler had two distinct avenues for remedy. The School District argues that upon dismissal Wheeler could either have initiated a statutory appeal process seeking remedy or he could have filed a grievance pursuant to the collective bargaining agreement. However, the School District contends that upon Wheeler’s selection of the statutory appeal process, the Union was then barred by the equitable doctrine of election of remedies from subsequently pursuing a remedy pursuant to the collective bargaining agreement.

The Union argues that election of remedies does not apply in this case and that Wheeler and the Union were both free to pursue a remedy by proceeding concurrently with both avenues of appeal. The Union argues in the alternative that by dismissing the statutory appeal Wheeler was not proceeding concurrently with the Union. The School District responds by arguing that the election of remedies doctrine applies despite the dismissal of the statutory appeal, thus foreclosing the Union from proceeding under the collective bargaining agreement. The District Court granted summary judgment in favor of the Union on the basis that election of remedies did not apply. Additionally, the District Court based its decision on the fact that Wheeler had dismissed his statutory appeal and that, therefore, there were not two concurrent appeals proceeding at the same time.

The School District relies heavily on this Court’s decision in. Butte-Silver Bow. In Butte-Silver Bow, we held that a police officer’s only remedy to contest a decision to terminate him was by the applicable statutory procedure. The police officer had attempted to concurrently pursue remedies under the statute and the collective bargaining agreement. In Butte-Silver Bow, we noted the possibility that two concurrent proceedings could result in conflicting and contradictory holdings. However, that potential problem was not the basis for our holding. Our decision in Butte-Silver Bow was based on the determination that the collective bargaining agreement in effect only provided for a statutory remedy. Election of remedies was not an issue because the officer, unlike Wheeler in the present case, had only one option available and that was to proceed by seeking a statutory remedy. The School District argues that Wheeler’s situation is similar to that of the police officer and that Butte-Silver Bow should govern in this situation. This argument is inconsistent with the School District’s concession that upon dismissal Wheeler could select to seek remedy by either a statutory appeal or by filing a grievance under the collective bargaining agreement. Butte-Silver Bow is readily distinguishable from the present case and the School District’s reliance upon it is misplaced.

The School District argues that if the doctrine of election of remedies is not applied in this case that it will be unduly burdened in having to defend against two simultaneous proceedings. Additionally, there is the possibility of two conflicting results. The Union counters by arguing that collective bargaining agreements can and do contain provisions for limiting an employee and a union to one avenue of appeal only. The collective bargaining agreement between the parties in this case, however, contains no such provision. The Union asserts that the School District is now attempting to secure a restriction of remedies through the use of the equitable doctrine of election of remedies, which it was unable to obtain at the bargaining table.

Wheeler had two options upon dismissal. Nothing in the collective bargaining agreement restricts the availability of these options. The only question is whether he was required by the doctrine of election of remedies to select one option and thus abandon the other. This Court has previously recognized the election of remedies doctrine. Massett v. The Anaconda Company (1981), 193 Mont. 131, 630 P.2d 736. Both parties agree that there are three determining factors in applying the election of remedies doctrine. All three criteria must be satisfied before the doctrine of election of remedies may be successfully invoked. These factors are:

1. The existence of two or more remedies;
2. an inconsistency between such remedies; and
3. a choice of one of them.

25 Am. Jur. 2d Election of Remedies Section 8 (1966).

The Union’s initial attack of the application of election of remedies in this situation rests on the contention that there are different parties seeking the remedy in this situation. The Union, in attempting to distinguish Butte-Silver Bow, points out that in Butte-Silver Bow it was the same party seeking concurrent remedies and not two distinct parties. The Union also argues that not only are the parties different, but the Union is attempting to protect different rights, although the remedy sought is the same. The Union and Wheeler both seek the same remedy, but the Union is motivated in part by its desire to enforce and protect the collective bargaining agreement. The District Court found that the parties were not identical and this determination served in part as a basis for the District Court’s decision that election of remedies did not apply.

The School District argues in its brief “that both actions have been brought by the same party to resolve the same issues.” The School District argues that in Palmer v. City of Oakland (Cal. Ct. App. 1978), 86 Cal. App. 3d 39, 150 Cal. Rptr. 41, the California Court of Appeals, in a similar situation found that certain union member employees and the union were in privity and should, therefore, be treated as if they were the same party. While supportive of the School District’s contention that the parties in this case should be treated as if they were identical, the Palmer case does not further the School District’s argument concerning election of remedies. Election of remedies was not an issue in Palmer. In Palmer, the union members had entered into a stipulation in regard to certain litigation and the union subsequently attempted to take a contrary position in later related litigation. The California Appeals Court, finding that the union members and the union were in privity, did not allow the union to assert a position contrary to the position taken earlier by the -union members. In this case, we need not determine if the parties are in privity and should be treated as if they were the same party, because in any event the doctrine of election of remedies does not apply.

The first criteria of election of remedies is clearly satisfied in this case. There were two distinct remedies available to Wheeler upon dismissal. The satisfaction of the third criteria is disputed by the parties. The Union contends that Wheeler did not make an exclusive election of any remedy because he dismissed his statutory appeal. The School District argues that his abandonment of the remedy did not revoke his election. The District Court appears to have given considerable weight to the fact that Wheeler abandoned his statutory appeal. However, this Court need not determine if Wheeler’s initiation of a statutory appeal and his subsequent dismissal of that appeal constituted an irrevocable election of that remedy because the second criteria necessary for application of the election of remedies is clearly not satisfied in this case.

The second criteria which must be met in order to apply the doctrine of election of remedies is that the available remedies must be inconsistent. The doctrine may be successfully invoked:

[W]here there are two or more coexistent remedies available to the litigant at the time of the election which are repugnant and inconsistent. This rule is upon the theory that, of several inconsistent remedies, the pursuit of one necessarily involves or implies the negation of the others. The rule of irrevocable election does not apply where the remedies are concurrent or cumulative merely, or where they are for the enforcement of different and distinct rights or the redress of different and distinct wrongs.

25 Am. Jur. 2d Election of Remedies Section 10 (1966).

The Union has argued that in seeking its remedy it is attempting to enforce a different and distinct right than is Wheeler. If this Court were to accept that argument, then the election of remedies doctrine would not apply. However, it is not necessary to make that determination in this case as it is clear that the remedies sought are consistent and merely cumulative. Both parties seek the same remedy. In attempting to determine if the remedies are inconsistent it has been said that:

[T]he so-called “inconsistency of remedies” is not in reality an inconsistency between the remedies themselves, but must be taken to mean that a certain state of facts relied on as the basis of a certain remedy is inconsistent with, and repugnant to, another certain state of facts relied on as the basis of another remedy. For one proceeding to be a bar to another for inconsistency, the remedies must proceed from opposite and irreconcilable claims of right and must be so inconsistent that a party could not logically assume to follow one without renouncing the other. Two modes of redress are inconsistent if the assertion of one involves the negation or repudiation of the other. In this sense, inconsistency may arise either because one remedy must allege as fact what the other denies, or because the theory of one must necessarily be repugnant to the other.

25 Am. Jur. 2d Election of Remedies Section 11 (1966).

The School District argues at one point in its brief that the Union, who allegedly is in privity with Wheeler, is seeking an inconsistent remedy. This position is contradicted by the argument elsewhere in its brief that the two proceedings should not be allowed because they are duplicative, seek a resolution of the same issue, and are asking for the same remedy. The two remedies sought are not inconsistent. While a duplication of hearings ought to be avoided when possible, there is nothing in the collective bargaining agreement nor the law of election of remedies which precludes concurrent proceedings in this situation.

The judgment of the District Corut is affirmed.

JUSTICES HARRISON, McDONOUGH and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE

specially concurring:

I concur with the result the majority has reached in this case but not for all of the reasons stated.

I concur in the result because James Wheeler dismissed his statutory appeal to the Valley County Superintendent of Schools and, therefore, he had but one remaining remedy available under the terms of the collective bargaining agreement in his suit to compel arbitration of his filed grievance. The majority opinion discussion of election of remedies is not now appropriate because of the dismissal of the statutory appeal.

The district judge’s reliance in part upon the fact of such dismissal is appropriate and should be the basis for the decision of the majority in this case.

JUSTICES GRAY AND WEBER concur in the special concurring opinion of CHIEF JUSTICE TURNAGE.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE TRIEWEILER

license: Public Domain

text:
    JOHN J. STUART and LEE J. TICKELL, Plaintiffs and Appellants, v. DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, a state agency within the executive branch of state government, and the STATE OF MONTANA, Defendants and Respondents.
    No. 91-316.
    Submitted on Briefs March 26, 1992.
    Decided January 29, 1993.
    50 St.Rep. 48.
    256 Mont. 231.
    846 P.2d 965.

      For Plaintiffs and Appellants: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Defendants and Respondents: G. Curtis Drake, Keller, Reynolds, Drake, Sternhagen & Johnson, Helena.
    For Amicus Curiae: Carter N. Picotte, Helena (Montana Public Employees’ Assn.).
   JUSTICE GRAY

delivered the Opinion of the Court.

John Stuart and Lee Tickell appeal from the grant of summary judgment to the Montana Department of Social and Rehabilitation Services (SRS) by the First Judicial District Court, Lewis and Clark County. We affirm.

The issues are:

1. Did SRS’s refusal to pay appellants their accrued vacation benefits violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

2. Did SRS’s refusal to pay appellants their accrued vacation benefits violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

3. Is Section 2-18-617(2), MCA, the statute upon which SRS relied when it withheld appellants’ accrued vacation benefits, either an unconstitutional delegation of legislative authority to an administrative agency or -unconstitutionally vague?

In early 1989, SRS began an investigation of sexual misconduct allegations lodged against Tickell. SRS concluded that improper conduct had occurred and began formal disciplinary proceedings against Tickell. Subsequently, the State investigated acts of vandalism allegedly committed by both Stuart and Tickell against a former SRS employee. This investigation led to the filing of criminal mischief charges against Stuart and Tickell.

On July 21, 1989, SRS notified Stuart and Tickell by separate letters that they would be terminated, effective July 31. Stuart’s letter explained that SRS was terminating him because of the criminal investigation. Tickell’s letter cited both the criminal investigation and the earlier SRS sexual misconduct investigation as the bases for his termination. Stuart and Tickell wrote to SRS and requested their accrued vacation benefits and compensatory time. SRS replied by letter, refusing to pay the accrued benefits.

Stuart and Tickell agreed to defer any challenge to the termination itself until after the conclusion of the criminal proceedings. On September 20,1989, a jury found Stuart and Tickell guilty of criminal mischief. The court sentenced them to jail terms and monetary fines. Stuart and Tickell then waived any future challenge to the termination of their employment but preserved their claim to accrued vacation benefits and compensatory time.

On October 6, 1989, Stuart and Tickell filed this action in the District Court. They sought a declaratory judgment that SRS was obligated to pay them accrued vacation benefits and compensatory time. SRS subsequently moved for summary judgment, arguing that the denial of accrued benefits was not subject to judicial review because Stuart and Tickell had not exhausted their administrative remedies. Stuart and Tickell filed a cross-motion for summary judgment. The District Court granted summary judgment for SRS on June 18, 1990. The court agreed with SRS’s contention that the declaratory judgment action was premature because Stuart and Tickell had not exhausted their administrative remedies. Stuart and Tickell appealed.

We reversed and remanded in Stuart v. Dept. of Social & Rehab. Serv. (1991), 247 Mont. 433, 807 P.2d 710 (Stuart I). Noting that “the exhaustion doctrine is not applicable to constitutional issues,” we remanded for further consideration of Stuart’s and Tickell’s constitutional claims. Stuart I, 807 P.2d at 713. On remand, the parties and amicus curiae Montana Public Employees’ Association briefed and argued the constitutional issues. On June 13,1991, the District Court again granted summary judgment for SRS. Stuart and Tickell appealed.

I

Did SRS’s refusal to pay appellants their accrued vacation benefits violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

The District Court concluded that appellants’ constitutional guarantee against double jeopardy was not violated when SRS refused to “cash out” their accumulated vacation leave under Section 2-18-617, MCA. We begin by considering the statutory context in which the case arises.

Chapter 18 of Title 2 of the Montana Code Annotated is entitled State Employee Classification, Compensation, and Benefits; it expresses in statutory format the employment policy of the State of Montana, as enacted by the Montana Legislature, which applies to employees of the State. Part 6 thereof contains the provisions relating to vacation leave which are relevant to the case before us.

Section 2-18-611, MCA, establishes the right of certain public employees to earn annual vacation leave credits. Such vacation leave credits are earned and accrued from the first day of employment for employees entitled to earn them at all. Id. The statute goes on to specify certain employees who are not entitled to earn such credits and provides for nonaccrual of credits during any leave-without-pay period. Id. Finally, Section 2-18-611(1), MCA, imposes a specific condition on when earned vacation credits can be exercised; namely, an employee is not entitled to any vacation leave with pay until she or he has been continuously employed for a period of six months. This single statute makes it clear from the outset that no absolute right to earn or exercise vacation leave credits exists; any entitlement to earn or exercise vacation leave credits is purely a matter of statute. Indeed, the legislature further conditioned the exercise of vacation leave benefits in Section 2-18-616, MCA, by providing that the dates when vacation leave can be taken are to be determined by agreement between the State and the employee.

The Montana legislature enacted additional statutory provisions regarding vacation leave in Section 2-18-617, MCA, the statute at issue here. Specifically, the legislature adopted a “use it or lose it” approach to accumulating earned vacation leave; vacation leave in excess of the amount the statute authorizes to be accumulated is forfeited. Id. Finally, the legislature granted employees an entitlement to “cash out” accumulated vacation leave at the time their service terminates under certain conditions: first, that the employee has worked the qualifying period of time; and second, that employment terminates for reasons “not reflecting discredit” on the employee. Id. Absent Section 2-18-617, MCA, no right whatsoever would exist whereby employees could either accumulate vacation leave or “cash out” unused leave on termination of employment. The legislature, having created these rights, elected to condition them.

It is clear that appellants’ vacation leave credits were earned and accrued over the period of their service pursuant to the statutory provisions and that they had worked the qualifying period of time. They remained free to exercise their vacation credits subject only to the statutory requirement that the dates be agreeable to the employer. Appellants do not dispute, and have not disputed throughout these lengthy proceedings, SRS’s determination that their termination of employment was for reasons reflecting discredit upon themselves. Thus, it is also clear that appellants do not meet the second precondition to entitlement to “cash out” accumulated vacation leave imposed by Section 2-18-617, MCA: their termination was not for reasons “not reflecting discredit” on themselves. Having failed to satisfy the statutory prerequisite to entitlement, we conclude that appellants were not entitled to compensation for accumulated vacation leave.

Notwithstanding this failure, appellants assert that application of Section 2-18-617, MCA, violates their constitutional guarantee against double jeopardy. We disagree.

The Fifth Amendment to the United States Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb....” Double jeopardy protects citizens from a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65. The United States Supreme Court has held that, under certain circumstances, civil as well as criminal sanctions may constitute prohibited double punishment. United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487.

Relying on Halper, appellants contend that application of Section 2-18-617, MCA, to prevent their “cash out” entitlement constitutes a civil sanction or penalty and the sanction serves a punishment or retribution goal rather than the remedial purpose of compensating the State for its loss. Specifically, they argue that the withholding of their accrued benefits is a civil sanction constituting unconstitutional double punishment because they already have been subjected to criminal sanctions in the criminal mischief prosecution. It is this relationship between their criminal convictions and SRS’s refusal to pay their accrued vacation leave that appellants argue converts their failure to satisfy a statutory precondition to cashing out vacation leave into a violation of double jeopardy under Halper.

Halper falsified 65 Medicare forms to obtain overpayment in the total amount of $585. The government successfully prosecuted Hal-per for fraud and he was sentenced to prison and fined. After the conclusion of the criminal proceedings, the government commenced an action for a statutory civil penalty under the False Claims Act which — based solely on the $2,000 penalty per violation imposed by the Act — would have amounted to $130,000 in addition to the previous criminal sentence of imprisonment and fines. Halper, 490 U.S. at 437-38, 109 S.Ct. at 1895-96.

The specific issue before the Court in Halper was whether and under what circumstances a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause. Id. at 446, 109 S.Ct. at 1901. It was undisputed in Halper that the government was seeking to enforce an actual statutory civil sanction or penalty against a person already subjected to criminal punishment for the same conduct. The unanimous Court held that the double jeopardy clause prohibits subjecting a defendant who has been punished in a criminal prosecution “to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. at 449, 109 S.Ct. at 1902.

Halper is inapposite here. Unlike Halper, our analysis begins with the question of whether a civil sanction existed here; that is, whether Section 2-18-617(2), MCA, constitutes a civil sanction.

In Halper, the subsequent proceeding specifically was undertaken to impose a statutory civil sanction. “Sanction” is defined by Webster’s Third New International Dictionary as “the detriment, loss of reward, or other coercive intervention that is annexed to a violation of a law as a means of enforcing the law....” The facts in Halper clearly met this definition: the “detriment” to Halper, in the guise of the subsequent remedy sought by the government, was “annexed to a violation” of the False Claims Act as a means of enforcing that law. In other words, Halper’s conduct violated two separate laws — one criminal and one civil — and the government sought to enforce both in separate proceedings.

In the case before us, there is no subsequent proceeding seeking an additional remedy. The detriment to appellants — lack of entitlement to “cash out” their vacation leave — was not annexed to a violation of any law. Indeed, the “detriment” was caused solely by appellants’ failure to satisfy the statutory precondition that employment terminate for reasons not reflecting discredit on themselves. Failure to satisfy a condition does not equate to violating a law and facing an additional enforcement proceeding. We conclude that the refusal to compensate appellants for their unused vacation leave did not constitute a civil sanction. For that reason, Halper does not apply and we need not address the additional Halper considerations.

We hold that the District Court did not err in concluding that appellants’ constitutional guarantee against double jeopardy was not violated.

II

Did SRS’s refusal to pay appellants their accrued vacation benefits violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?

Stuart and Tickell argue that because they are the only SRS employees who have ever been refused accrued benefits upon termination, the refusal by SRS to pay over their benefits constitutes a violation of the Equal Protection Clause of the United States Constitution. However, the Equal Protection Clause is not violated solely because all similarly situated persons are not treated identically. The injured party must also establish that the discrimination is based on “ ‘an impermissible ground such as race, religion or exercise of... constitutional rights.’ ” United States v. Kidder (9th Cir. 1989), 869 F.2d 1328, 1336, quoting United States v. Moody (9th Cir. 1985), 778 F.2d 1380, 1386, amended on other grounds, 791 F.2d 707 (9th Cir. 1986).

Stuart and Tickell assert that SRS based its decision to withhold their benefits on an impermissible ground — their attempted exercise of constitutional rights. They claim that SRS discriminated against them because (1) they refused to plead guilty to the criminal charges; and (2) they campaigned for gubernatorial candidate Tom Judge.

In considering whether the record reveals genuine issues of material fact, the trial court is limited to pleadings, depositions, answers to interrogatories, admissions, and affidavits. Rule 56(c), M.R.Civ.P. We have reviewed these portions of the District Court record and find no evidence to support either of appellants’ assertions.

In Small v. McRae (1982), 200 Mont. 497, 522, 651 P.2d 982, 995, we noted that “it should be kept in mind that the bare assertions found in appellant’s briefs are not sufficient to defeat a motion for summary judgment.” Therefore, we conclude that the District Court did not err in entering summary judgment dismissing appellants’ allegation that SRS’s conduct violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

III

Is Section 2-18-617(2), MCA, the statute upon which SRS relied when it withheld appellants’ accrued vacation benefits, either unconstitutionally vague or an unconstitutional delegation of legislative authority to an administrative agency?

Section 2-18-617(2), MCA, pursuant to which appellants’ benefits were withheld, provides:

An employee who terminates his employment for reason not reflecting discredit on himself shall be entitled upon the date of such termination to cash compensation for unused vacation leave, assuming that the employee has worked the qualifying period set forth in 2-18-611. [Emphasis added.]

Appellants contend that the phrase “reflecting discredit on himself’ lacks specificity because it is susceptible to a number of different interpretations. This asserted lack of specificity provides the foundation for appellants’ alternative constitutional attacks; namely, that the statute is unconstitutionally vague or that it is an unconstitutional delegation of legislative power without the necessary standards. We decline to address the merits of these arguments in this case because we conclude that appellants lack standing to assert them.

In Hoffman Estates v. Flipside, Hoffman Estates (1982), 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, the United States Supreme Court considered the problem of third-party standing in an attack on a local ordinance that purported to regulate “head shops.” Hoffman Estates had passed an ordinance that regulated the sale of items “designed or marketed for use” with marijuana or other illegal drugs. Hoffman Estates, 455 U.S. at 491, 102 S.Ct. at 1190, 71 L.Ed.2d at 367. The Flipside contended that the ordinance violated the First Amendment freedom of speech clause and the Fourteenth Amendment due process clause because the phrase “designed and marketed for use” was both over-broad and vague. Hoffman Estates, 455 U.S. at 493, 102 S.Ct. at 1191, 71 L.Ed.2d at 368.

The Court said:

In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law. [Emphasis added.]

Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191, 71 L.Ed.2d at 369. The Court concluded that because The Flipside sold at least some of the items prohibited by the ordinance, the ordinance was not vague as applied to The Flipside. Hoffman Estates, 455 U.S. at 502, 102 S.Ct. at 1195, 71 L.Ed.2d at 374.

Stuart and Tickell lack standing under Hoffman Estates. With respect to the facial vagueness analysis, Stuart and Tickell must show that this statute is impermissibly vague as it applies to them. They may not do so by showing that it is vague “as applied to the conduct of others.” See Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191, 71 L.Ed.2d at 369. Appellants’ unconstitutional delegation attack meets the same fate, premised as it is on lack of specificity and definiteness. We have held on numerous occasions that a person neither injured nor jeopardized by the operation of a statute cannot challenge its constitutionality. See State v. Kirkland (1979), 184 Mont. 229, 235, 602 P.2d 586, 590 (citing cases).

Although it may be unclear what “reflecting discredit on himself’ means in other circumstances, it is quite clear that in this case the conduct for which Stuart and Tickell were convicted reflected discredit upon them. At no point in this litigation have they argued otherwise. This failure to allege and prove exactly how they were unfairly swept into the operation of a possibly vague statute precludes us from addressing this issue on its merits.

We note appellants’ assertion that we held in Stuart I that they did have standing to raise these constitutional issues and, therefore, that Stuart I is the law of the case with regard to standing. Appellants’ interpretation of Stuart I is erroneous.

In Stuart I, the district court determined that the failure of Stuart and Tickell to exhaust their administrative remedies precluded constitutional challenges to Section 2-18-617, MCA. We reversed, stating that they were not precluded from challenging the statute’s constitutionality “solely on the basis that they failed to exhaust their administrative remedies.” Stuart 1,807 P.2d at 713 (emphasis added). We neither addressed nor determined the standing issue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, McDONOUGH and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I concur with the majority’s disposition of Issues II and III.

I dissent from the majority’s resolution of Issue I.

No matter how bad a person’s conduct, the United States Constitution provides that he or she can only be punished once for the same crime. In this case, plaintiffs were punished in the criminal justice system for their crime, and then punished a second time when they were denied their accrued benefits based on the exact same conduct.

Even though the majority tries to finesse this issue by constructing a “conditional benefit”, the fact is that plaintiffs had benefits coming to them which they would have received were it not for their misconduct. To categorize the denial of their benefits as anything other than a penalty is a weak effort to exalt form over substance.

In United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487, Justice Blackmun, writing for a unanimous Supreme Court, concluded that the government’s $130,000 civil recovery was disproportionate to its actual damages and said that:

We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
... Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the government for its loss, but rather appears to qualify as “punishment” in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment.

Halper, 490 U.S. at 448-50, 109 S.Ct. at 1901-03.

The District Court did not address this issue because it concluded that the right to receive accrued benefits is merely conditional and the denial of that right is, therefore, not a sanction. The majority, by discussing preconditions to “cashing out” accumulated vacation benefits, adopts the District Court’s line of reasoning. I disagree.

Under Section 2-18-611(1), MCA, the employee begins earning vacation credits on the first day of employment. I agree with the California Supreme Court that the right to “vacation [benefits] ‘vests’ as the labor is rendered.” Suastez v. Plastic Dress-Up Co. (Cal. 1982), 647 P.2d 122, 128.

In Suastez, the plaintiff sought recovery of vacation benefits under a California statute that prohibited employers from providing for the forfeiture of “vested” vacation time. It was the company’s policy that vacation pay did not vest until the anniversary of the employee’s employment. After surveying case law from several jurisdictions, the California court concluded that vacation pay is a form of “deferred compensation.” Suastez, 647 P.2d at 125. It then compared vacation pay to pension benefits and held that some of the rights to the benefits vest at the same time as the labor is rendered, even though the full bundle of rights is not available until later and may be subject to forfeiture. Suastez, 647 P.2d at 125-126. Forfeiture prevents the accrual of the whole bundle of rights, but it does not prevent at least some of the rights from vesting at the time the employee performs services for the employer. Suastez, 647 P.2d at 126.

Thus, the denial of accrued vacation benefits in this case is a denial of Stuart and Tickell’s vested rights. Benefits which began to accrue on the day they began work were taken from them based on the fact that they were terminated for misconduct. This is clearly a “sanction” and because it occurred after the imposition of criminal sanctions, it requires analysis under Halper. Halper requires a determination of whether “the civil penalty sought in the subsequent proceeding bears [a] rational relation to the goal of compensating the government for its loss.” Halper, 490 U.S. at 449, 109 S.Ct. at 1902.

Here the District Court made no such determination. The record is devoid of any evidence that SRS sustained any loss because of its employees’ conduct, and if so, how the value of that loss compares to the value of the benefits that were forfeited. Accordingly, I would reverse the summary judgment entered by the District Court and remand this case for a determination by the District Court of SRS’s damages and whether the denial of all of plaintiffs’ accrued vacation benefits “bears [a] rational relation” to those damages.

For these reasons I dissent from the majority opinion.

JUSTICE HUNT concurred in the dissent of JUSTICE TRIEWEILER.


text:
    JACK S. DALTON, Plaintiff and Appellant, v. KALISPELL REGIONAL HOSPITAL, Defendant and Respondent.
    No. 91-532.
    Submitted on Briefs June 25, 1992.
    Decided January 29, 1993.
    50 St.Rep. 54.
    256 Mont. 243.
    846 P.2d 960.

      For Plaintiff and Appellant: Randy K. Dix, Dix & Hunt Law Firm, Helena.
    For Defendant and Respondent: Stephen C. Berg, Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

Jack S. Dalton appeals from the grant of summary judgment in favor of Kalispell Regional Hospital by the First Judicial District Court, Lewis and Clark County. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in requiring expert opinion testimony regarding standards of hospital care?

2. Did the District Court err in refusing to apply the doctrine of res ipsa loquitur?

The facts of this case relating to liability are not in dispute. Appellant Dalton was a patient of Dr. J. T. Laidlaw (Laidlaw), an orthopedic surgeon in Kalispell. Laidlaw determined that Dalton’s right hip should be replaced with a prosthetic device and decided to use the Harris-Galante I.

Laidlaw met with a representative of Zimmer-Jackson Associates, Inc. (ZJA), a company which markets prosthetic devices, on approximately September 12, 1986, to determine the proper device for Dalton’s surgery. It was determined that large sizes in the cups and reamers of the prosthetic device would be needed. The ZJA representative ordered the Harris-Galante I kit with oversized cups and reamers by telephone the same day.

Laidlaw’s office personnel called the operating room at Kalispell Regional Hospital (Hospital) on September 12, to reserve surgery time for Dalton’s operation on October 2, 1986. Operating room personnel were advised that the surgery would be a right total hip replacement using the Harris-Galante I kit from ZJA. No reference to the need for large cups and reamers in the kit was made during this telephone call. Following its usual procedure, the Hospital then issued a confirming purchase order for the device.

The kit arrived at the Hospital the evening preceding the surgery. An operating room nurse inventoried the kit, checking each item against the packing list. No procedure existed by which the Hospital verified that the shipment received was the shipment actually ordered by the physician from the manufacturer.

After the surgery had begun, Laidlaw asked the nurse for a large reamer. It was discovered at that time that the kit did not contain the larger cups and reamers which had been ordered. After further inquiry, it became clear that the only kit which had been shipped by ZJA was that inventoried by the nurse; it contained only the standard size cups and reamers.

Laidlaw decided to close Dalton’s incision and terminate the surgery until the proper prosthetic device could be utilized. ZJA shipped the properly sized device later the same day. Dalton’s hip was replaced with the newly delivered device the following day.

The Hospital subsequently changed its procedure regarding verification of prosthetic devices ordered by physicians. In February, 1987, it instituted a procedure whereby the nurse assigned to the surgery checks the prosthetic device received and informs the physician if discrepancies between the special order requisition information and the shipment invoice are found.

Dalton filed a complaint against ZJA, Laidlaw and the Hospital. Settlements subsequently were entered into between both ZJA and Laidlaw and Dalton.

The Hospital moved for summary judgment asserting that Dalton had failed to name an expert witness who would testify as to the duty owed by the Hospital and a breach of that duty. Dalton admitted that he did not intend to produce expert opinion testimony regarding standards of hospital care. He contended that expert testimony was not required because the Hospital’s negligence is obvious and, indeed, admitted. He also argued that the doctrine of res ipsa loquitur applies to this case, eliminating the need for expert testimony.

On September 5,1991, the District Court entered its memorandum and order granting summary judgment in favor of the Hospital unless Dalton named a witness who would testify as to standard of care by October 1,1991. No such witness having been named, judgment was entered against Dalton on October 4, 1991. This appeal followed.

Did the District Court err in requiring expert opinion testimony regarding standards of hospital care?

The District Court determined that, while exceptions exist to the general rule in malpractice actions that the standard of care must be established by expert testimony, the exceptions are not applicable in this case. Specifically, the court determined that the Hospital’s change in procedure several months after Dalton’s surgery did not establish its standard of care in October, 1986. The court concluded that the standard of care in this case was not something readily ascertainable by laypeople.

Dalton argues, first, that the Hospital’s duty to provide that which is necessary to perform surgery properly is not a matter requiring expert testimony. He relies on Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670, where we acknowledged an exception to the usual requirement of establishing a medical standard of care via expert testimony when the conduct complained of is readily ascertainable by a layperson.

We did recognize the exception cited by Dalton in Gratton. We refused, however, to apply that exception in Gratton, which involved the management of a staph infection following an open reduction surgery of a leg fracture, concluding that the cause of an infection is not readily ascertainable by a layperson. We similarly decline to apply the exception here.

The essence of Dalton’s argument is that the Hospital’s failure to take any action to determine the suitability of the prosthetic device, or to have any procedure in place to do so, is ample evidence from which a jury can reasonably infer negligence. We disagree. The Hospital’s lack of action is evidence of the Hospital’s lack of action and nothing more. As we stated in Gratton, “[w]hat is missing here is evidence of any standard of care against which the acts or omissions of the ... hospital staff can be measured to establish negligence ....” Gratton, 169 Mont, at 188, 189, 545 P.2d 670.

Dalton also argues that the Hospital’s own admissions of record bring the present case within the ambit of our cases holding that expert testimony in medical negligence cases is not required if a defendant’s own evidence establishes a standard of care and a deviation from that standard. He asserts that the Hospital’s evidence that it had no “checks and balances” in place in October, 1986, to ensure proper sizing and inventory of prosthetic devices and that, subsequent to the events at issue here, it inaugurated such procedures, establishes what the Hospital knew to be the applicable standard of care in October, 1986. In short, according to Dalton, no policy during the first pertinent time frame followed by a policy in the second equals an admission of an applicable standard of care during the first time frame. Aside from any questions regarding admissibility of evidence of the after-inaugurated procedure under the “remedial measures” provision of Rule 407, M.R.Evid., which we do not address here, we find this contention unpersuasive.

We have recognized the “defendant’s admissions” exception to the expert testimony requirement in several cases. In both Hunter v. Missoula Community Hospital (1988), 230 Mont. 300, 750 P.2d 106, and Hill v. Squibb (1979), 181 Mont. 199, 592 P.2d 1383, we acknowledged, but refused to apply, the exception.

In Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d 604, a physician testified to the standard of care. The defendant physician was deceased by the time of trial; however, his admissions to a member of the plaintiff patient’s family as to the procedure he followed were sufficient to establish a deviation from the standard of care.

The case before us is distinguishable from Thomas. As discussed above, Thomas involved a defendant’s admissions of the procedures he followed. Independent expert testimony established the standard of care against which the defendant’s admissions could be measured. Here, the Hospital’s “admissions” regarding its policies and procedures are matters of fact equivalent to the defendant physician’s in Thomas. Absent expert testimony establishing the standard of care, however, there is nothing against which the Hospital’s admissions can be measured. Thus, there is no way for a jury to determine whether or not the Hospital’s procedures in October, 1986, constituted a deviation from the applicable standard.

Dalton’s assertions that the policy instituted by the Hospital in February, 1987, establishes the applicable standard of care either at that time or during October, 1986, ring no less hollow for the frequency with which they are repeated. This is not an appropriate case for application of the “defendant’s admissions” exception to the general rule requiring expert testimony to establish the standard of care in medical negligence cases.

We hold the District Court did not err in requiring expert opinion testimony regarding standards of hospital care.

Did the District Court err in refusing to apply the doctrine of res ipsa loquiturl

The District Court determined that the doctrine of res ipsa loquitur is not applicable here in that, under these facts, it cannot be said that the prosthetic device was under the Hospital’s exclusive control. The court also noted that application of the doctrine does not shift a plaintiff’s burden of making a prima facie case of breach of a duty of care in a medical negligence case.

Daltonis correct in asserting that res ipsa loquitur maybe applicable in certain malpractice cases in Montana. But his res ipsa loquitur argument is, to a large extent, merely an extension of his other arguments for not being required to produce an expert witness to establish a standard of care. It is here that this argument misses the mark.

Where applicable, the doctrine of res ipsa loquitur “permits proof of what happened to be made by circumstantial evidence....” Clark v. Norris (1987), 226 Mont. 43, 48, 734 P.2d 182, 185. The doctrine, if applicable in a medical malpractice case, does not permit a presumption of negligence; a plaintiff still “must make a prima facie case that defendant breached a duty of care before the question goes to the jury.” Id. In the case before us, Dalton does not seek application of res ipsa loquitur for purposes of proving what happened by circumstantial evidence; what happened is clear and undisputed. Rather, he seeks application of the doctrine in order to avoid producing the expert testimony required to establish a prima facie case of duty of care and breach thereof. Under Clark, this is an inappropriate application of res ipsa loquitur.

Furthermore, we agree with the District Court that the “exclusive control” element of res ipsa loquitur is not met under these facts. The instrumentality, if considered to be the improperly sized prosthetic device, was not under the exclusive control of the Hospital at the time of the injury. If the “instrumentality” is considered to be the communication or lack thereof — between Laidlaw, Z JA and the Hospital — it was never in the exclusive control of the Hospital. Therefore, we conclude that the doctrine of res ipsa loquitur is not applicable to the case before us; the District Court did not err in refusing to apply it.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and McDonough concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with that part of the majority opinion which holds that the doctrine of res ipsa loquitur is not applicable to the facts in this case. I dissent from that part of the majority opinion which holds that expert testimony was necessary to establish the negligence of Kalispell Regional Hospital.

The majority correctly notes that in Montana we have recognized an exception to the usual requirement of expert testimony to prove a medical standard of care when the conduct complained of is readily ascertainable by a lay person. There are no cases in Montana where that exception has been applied. However, when we look to other jurisdictions which have applied the exception it is clear that it should be applied to the facts in this case.

For example, in McKnight v. St. Francis Hospital, Etc. (Kan. 1978), 585 P.2d 984, the issue was also whether intra-hospital communication had been adequate. In that case, plaintiff, an elderly lady, was admitted to the hospital by her physician with the diagnosis of hypertension, heart cardiovascular disease and a mild cerebral accident on the left side. She was in an extremely weak condition and her physician prescribed x-ray examination. That procedure required that a requisition form be filled out by a nurse who was employed by the hospital. That form provided a space for her history but no information pertaining to the plaintiff’s diagnosis or condition was provided. She was taken to the radiology department where she collapsed during a vertical x-ray exam because she was not provided with assistance to stand erect. The plaintiff contended, and the trial court agreed, that the hospital’s failure to advise the radiology department of the plaintiff’s weakened condition and history was the proximate cause of her fall and resulting injury. However, on appeal, the defendant contended that the plaintiff had a duty to present expert testimony regarding the hospital’s duty of care and that it did not do so. Of particular relevance to this case was the hospital’s contention that:

The plaintiff did not present expert testimony that there is a duty to include this type of information on the X-ray requisition form or that the defendant hospital violated any duty in failing to provide the radiology department with such information.

However, on appeal, the Supreme Court of Kansas set forth a more complete explanation of the “common knowledge” exception to the rule requiring expert testimony in malpractice cases and held that expert testimony was not required in that case. In discussing the rule the court in McKnight stated:

There is a common knowledge exception to the rule requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. Webb v. Lungstrum, 223 Kan. 487 ... 575 P.2d 22 (1978).

This “common knowledge exception” was stated in a different manner in Hiatt [v. Grace, 215 Kan. 14, 523 P.2d 320 (1974)] as follows:

Expert medical testimony is ordinarily required to establish negligence on the part of either a physician or a hospital in their care and treatment of a patient, unless the medical procedures employed are so patently bad that negligence or lack of skill is manifest to a lay observer or other acts complained of could be regarded as negligent by applying the common knowledge and experience of mankind.
The common knowledge exception to the rule requiring expert testimony in malpractice cases was applicable in the case at hand....

McKnight, 585 P.2d at 986-87. In accord is Washington Hospital Center v. Butler (U.S. App.D.C. 1967), 384 F.2d. 331.

As in the McKnight case the issue in this case was whether the information included in the hospital’s internal requisition form provided sufficient safeguards to the plaintiff.

Marilyn Meyers was the circulating nurse in charge of Kalispell Regional Hospital’s operating room who ordered the plaintiff’s prosthesis. She filled out the order form which was sent to the purchasing department which placed the order with the company which manufactured the prosthesis. However, nowhere in the purchasing form was the size of the prosthesis indicated even though she acknowledged that the prosthesis came in various sizes.

Jayne Wangerin was the scrub nurse whose responsibility it was to gather the instruments and supplies that would be necessary for plaintiff’s surgery and bring them to the operating room. When plaintiff’s prosthesis arrived the day before or the morning of his operation, she checked the contents of the container in which it was shipped against the information on the packing slip which was sent with the package. She also checked the contents against the manufacturer’s catalog which indicated those parts that should come with that prosthesis. However, at no time did she determine from either Doctor Laidlaw, from Marilyn Meyers or from the purchasing department what the appropriate size of the prosthesis should be.

The hospital acknowledged by the procedure that it employed that some inspection of what was sent by the manufacturer was necessary. The people who checked what was sent also acknowledged that the prosthetic device that was received comes in various sizes. With this information it does not require an expert to conclude that any meaningful inspection would have to determine whether the appropriate size was sent. Expert testimony should not be necessary to establish that the hospital was negligent when it failed to consider whether the parts shipped were the appropriate size until the plaintiff lay on the operating table with an open incision.

It does not take a rocket scientist to figure out that if it is reasonable to inspect prosthetic devices that are shipped to the hospital; if an important characteristic of the prosthetic device is its size; and if the operating physician relies on confirmation that the appropriate prosthetic device has been sent before he opens up a patient for implantation of that device, then a reasonable inspection should include a determination that the correct size has been received.

Just as in the cited cases, this case involves an internal communication at the hospital in the form of a requisition sheet which did not include adequate information and therefore communications within the hospital were inadequate to assure the plaintiff’s safety. That fact can be deduced from the common knowledge possessed by lay people and does not require expert testimony for its proof.

For these reasons, I dissent from the majority opinion. I would reverse the summary judgment of the District Court and remand this case to the District Court for a trial to determine whether or not Kalispell Regional Hospital was negligent when it purchased the wrong sized prosthetic device for implantation into the patient’s hip and did not let his treating physician know until after plaintiff’s surgery had begun.


author: JUSTICE WEBER

text:
    CAROL HASH, Petitioner/Appellant, v. MONTANA SILVERSMITH, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer/Respondent.
    No. 92-293.
    Submitted on Briefs November 24, 1992.
    Decided February 2, 1993.
    50 St.Rep. 76.
    256 Mont. 252.
    846 P.2d 981.

      For Petitioner/Appellant: Lloyd E. Hartford, Billings.
    For Insurer/Respondent: Richard E. Bach, State Compensation Insurance Fund, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal by the claimant, Carol Hash, from an order of the Workers’ Compensation Court ruling that she had not suffered permanent disability as a result of her industrial injury, that she was not entitled to additional benefits beyond those already paid, and that she was not entitled to attorney’s fees or costs. We affirm.

The claimant presents the following issues for our review:

1. Whether Mrs. Hash is permanently totally disabled as a result of her industrial injury.

2. Whether Mrs. Hash is entitled to retroactive payment of temporary total disability benefits and retroactive payment of all benefits withheld by respondent as an offset due to her receipt of Social Security Disability benefits.

3. Whether Mrs. Hash is entitled to an award of a reasonable attorney’s fee and costs.

This Court previously affirmed the Workers’ Compensation Court’s conclusion that Mrs. Hash suffered a compensable injury to her hands. For a more complete discussion of the facts of this case, see Hash v. Montana Silversmith (1991), 248 Mont. 155, 810 P.2d 1174. Because the amount of permanent benefits, if any, was not settled in that proceeding, Mrs. Hash subsequently petitioned for a second hearing on the issue of entitlement to permanent total benefits retroactive to the date that she ceased working, with credit to respondent State Compensation Mutual Insurance Fund (State Fund) for Occupational Disease benefits paid under the Occupational Disease Act, Sections 39-72-101-714, MCA (1985).

Mrs. Hash suffers from osteoarthritis, a disease of unknown origin, which was aggravated by her job with Montana Silversmith. The State Fund paid Occupational Disease benefits under a full reservation of rights pending an Occupational Disease evaluation to determine the contribution of her employment, if any, to the osteoarthritis in her hands. The State Fund paid $9,686.51 in Occupational Disease benefits covering the time period from April 25, 1987 to September 25, 1989.

Thereafter, the State Fund discontinued Occupational Disease benefits based on a June 19,1989 evaluation by Dr. William Shaw, a specialist in Occupational Medicine. Dr. Shaw determined that Mrs. Hash did not suffer from an occupational disease and that her osteoarthritis was neither caused by nor progressed more rapidly from her work activities at Montana Silversmith.

In the previous proceeding, the Workers’ Compensation Court determined and this Court affirmed that Mrs. Hash suffered a compensable Workers’ Compensation injury, microtrauma to her hands, on July 31, 1986. Hash, 810 P.2d at 1177. In the present proceeding, the Workers’ Compensation Court evaluated testimony from three physicians before determining that Mrs. Hash did not qualify for further Workers’ Compensation benefits because she did not meet the statutory requirements for “permanent total disability.” Medical testimony included depositions from Dr. Shaw, Dr. Susan English and Dr. Phillip Griffin. Dr. Griffin was Mrs. Hash’s treating physician in 1986. Dr. English initially examined Mrs. Hash at the request of the State Fund and later became Mrs. Hash’s treating physician after her initial evaluation for the State Fund. Dr. Griffin and Dr. English are certified internal medicine specialists with sub-specialties in rheumatology.

All three physicians testified that Mrs. Hash’s condition, for which she seeks permanent total disability benefits, is naturally occurring and progressive osteoarthritis and that her job with Montana Silversmith at most only temporarily aggravated the symptoms of her condition without either contributing to or causing its onset or progression. Dr. English opined that the microtrauma suffered by Mrs. Hash aggravated her osteoarthritis for a period of several months, and that after several months, Mrs. Hash achieved maximum healing of her temporary aggravation of her compensable Workers’ Compensation injury.

Although her osteoarthritis continued to degenerate and Mrs. Hash could not return to work, the medical experts testified that she would have the same osteoarthritis problems regardless of her employment. The Workers’ Compensation Court concluded that the injury did not produce permanent disability and the employment-related aggravation of her naturally progressing osteoarthritis was temporary.

The Workers’ Compensation Court determined that the benefits paid to Mrs. Hash, when calculated correctly without deducting an offset for Social Security Disability payments received by Mrs. Hash, were sufficient to pay benefits for 59.74 weeks at her temporary total disability rate, a period in excess of the “several months” Dr. English testified it took to reach maximum healing. However, the Workers’ Compensation Court did not require Mrs. Hash to repay any overpaid benefits, noting that the State Fund did not seek reimbursement for any overpayment to her.

The Workers’ Compensation Court also refused to allow Mrs. Hash’s attorney to incorporate time expended by him in litigating her prior petition before the Workers’ Compensation Court and this Court with time and costs expended on this action because no benefits were awarded in excess of those already paid by the State Fund.

I.

Whether Mrs. Hash is permanently totally disabled as a result of her industrial injury.

The previous appeal in this matter affirmed the Workers’ Compensation Court’s finding that Mrs. Hash suffered a compensable injury. Hash, 810 P.2d at 1177. However, the issue of permanent benefits was not litigated in that proceeding. The Workers’ Compensation Court subsequently resolved that question by denying permanent disability benefits.

The Workers’ Compensation Court stated that the issue was not whether Mrs. Hash was disabled, but whether her work was the cause of the disability. The court then found that Mrs. Hash failed to prove that her work was the cause of her disability, as required by Section 39-71-116(13), MCA (1985). Section 39-71-116(13), MCA (1985), provides:

(13) “Permanent total disability’ means a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence. (Emphasis supplied)

The Workers’ Compensation Court stated, “[h]ere, no permanent disability was proved to be caused by claimant’s employment, and she has already been compensated for the temporary total loss which resulted from her employment’s aggravation upon her naturally progressing osteoarthritis.”

Mrs. Hash contends that this is error for two reasons: (1) she previously established the existence of a causal relationship between the job and her injury, and (2) Section 39-71-116(13) does not require proof that the injury produced permanent disability before an analysis need be made of loss of actual earnings or earning capability. By proving that the microtrauma to her hands aggravated her preexisting osteoarthritis, Mrs. Hash established a causal relationship entitling her to temporary total disability benefits. Her pre-existing condition, however, requires her to further establish that the microtrauma to her hands proximately caused permanent total disability if she is to qualify for permanent total disability benefits under the Workers’ Compensation Act.

Causation is an essential element to benefit entitlement. The claimant has the burden to prove a causal connection by a preponderance of the evidence. Grenz v. Fire and Casualty of Conn. (1991), 250 Mont. 373, 380, 820 P.2d 742, 746. In Grenz, the claimant similarly argued that microtrauma caused him to develop his degenerative joint disease. Grenz, 820 P.2d at 745-46. Mrs. Hash notes that she does not challenge the Workers’ Compensation Court’s conclusion that she achieved maximum medical healing by the fall of 1987. However, she does contend that such a finding triggers a reevaluation of her disability status, requiring a classification as either permanently totally disabled or permanently partially disabled. She claims that the court avoided doing this by holding that she had failed to establish a causal connection between her injury and disability.

Our standard for reviewing the findings and conclusions of the Workers’ Compensation Court is to determine whether there exists substantial credible evidence to support them. White v. Ford, Bacon & Davis Texas, Inc. (Mont. 1992), [256 Mont. 9,] 843 P.2d 787, 789, 49 St.Rep. 1117, 1118. Conclusions of law, whether made by an agency, Workers’ Compensation Court, or other trial court will be upheld if the interpretation of the law is correct, regardless of the reasons given for the conclusion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

All three medical experts here testified that Mrs. Hash’s hand condition is naturally occurring and progressing osteoarthritis and that her occupation temporarily aggravated the symptoms of her condition without either contributing to or causing its onset or progression. Dr. English testified that within several months after Mrs. Hash quit her job in April 1987, any aggravation in her underlying symptoms caused by her employment should have been “back to what would have been there without the job;” and that the condition would be the same as the doctor had observed on July 2, 1987, regardless of claimant’s employment. Dr. English further testified that although it was possible that Mrs. Hash’s work could have aggravated her symptoms of osteoarthritis, the underlying condition would have progressed in the same manner regardless of her activities.

Dr. Griffin testified that people with such a condition get arthritis regardless of their occupations and that he knew of no occupation that would make a change in the time of onset of the disease or make it worse. Dr. Shaw testified to his opinion that Mrs. Hash was not suffering an occupational disease. Both Dr. Griffin and Dr. Shaw concurred with Dr. English’s opinion that the microtrauma to Mrs. Hash’s hands could have aggravated her condition, but that such aggravation would be temporary in character and would not cause permanent damage over that caused by the basic progression of the disease.

After a thorough review of the medical evidence presented in this case, we conclude that there is substantial credible evidence to support the Workers’ Compensation Court’s finding that Mrs. Hash failed to establish a causal connection between her current condition and the 1986 injury. Mrs. Hash has failed to demonstrate by a preponderance of the evidence that her current condition is attributable to her employment with Montana Silversmith.

Mrs. Hash further contends that if a claimant asserts an entitlement to permanent benefits, the law requires a determination of whether the claimant has suffered the loss of actual earnings or earning capability. While Mrs. Hash may well be able to establish an actual loss of earnings or earning capacity, to do so would be irrelevant here. Mrs. Hash has not proved that her injury caused her present condition. Without that causal connection, she does not meet the criteria of Section 39-71-116(13), MCA (1985), which would qualify her to receive permanent disability benefits. We conclude that the Workers’ Compensation Court correctly refused to address whether Mrs. Hash lost actual earnings or earning capacity.

We affirm the District Court’s finding that Mrs. Hash is not permanently totally disabled as a result of her industrial injury.

II.

Whether Mrs. Hash is entitled to retroactive payment of temporary total disability benefits and retroactive payment of all benefits withheld by respondent as an offset due to her receipt of Social Security Disability benefits.

Mrs. Hash argues that she is entitled to additional benefits for the period previously found compensable by the Workers’ Compensation Court because the State Fund was not entitled to offset those benefits because of her receipt of Social Security Disability benefits. The total amount Mrs. Hash received is in excess of what she would have received at the full rate with no offsets for the time for which compensation was allowed for temporary disability. As argued by the State Fund, the net effect is that Mrs. Hash is not entitled to additional benefits over those previously paid. She has received substantially more than the Workers’ Compensation Court found she was entitled to receive. We conclude that Mrs. Hash is not entitled to a lump sum in the amount of the total withheld Social Security Disability offset.

We affirm the Workers’ Compensation Court’s holding that Mrs. Hash is not entitled to retroactive payment of temporary total disability benefits and retroactive payment of all benefits withheld by respondent as an offset due to her receipt of Social Security Disability benefits.

m.

Whether Mrs. Hash is entitled to an award of a reasonable attorney’s fee and costs.

Mrs. Hash did not succeed in her attempt to obtain permanent total disability benefits here. Therefore, the Workers’ Compensation Court correctly denied further payment for attorney fees. We conclude that she is not eligible for attorney fees under Sections 39-71-611 or 612, MCA (1985). We further conclude that Mrs. Hash may not incorporate time expended by her attorney litigating her prior petition with those of this action because she is not entitled to any further benefits in excess of those already paid by the State Fund.

We affirm the Workers’ Compensation Court’s holding that Mrs. Hash is not entitled to an award of a reasonable attorney’s fee and costs for expenses incurred relating to her unsuccessful claim for permanent total disability benefits.

Affirmed.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF MARCIA LORRAINE SELSOR, Petitioner and Appellant, and BEAL MONROE MOSSMAN, Respondent and Respondent.
    No. 92-389.
    Submitted on Briefs December 22, 1992.
    Decided February 2, 1993.
    50 St.Rep. 80.
    256 Mont. 260.
    846 P.2d 972.

      For Petitioner and Appellant: Gregory R. Todd, Towe, Ball, Enright & Mackey, Billings.
    For Respondent: Kevin T. Sweeney, Sweeney & Healow, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Marcia Selsor (Selsor) appeals the findings of fact, conclusions of law and order entered in this dissolution of marriage by the District Court for the Thirteenth Judicial District, Yellowstone County. We affirm the District Court.

The sole issue presented for our consideration is:

Did the District Court equitably apportion the marital assets between the parties?

Selsor and Beal Mossman (Mossman) were married on June 13, 1980. At the time of marriage, Selsor was an associate professor of art with five years of teaching service at Eastern Montana College (Eastern). Mossman was a full professor of psychology at Eastern with over ten years of teaching service in that capacity. Eight and one-half years later, on January 15, 1989, the parties separated. Selsor petitioned the District Court for a dissolution of marriage in February 1989. At the time of dissolution, both parties earned roughly the same income. Selsor earned approximately $37,000 per year, and Mossman earned approximately $36,300 per year.

Before the parties married, Mossman owned real property located on Poly Drive in Billings with an equity of approximately $46,000. The property was used as rental property. In 1985, Mossman sold the Poly Drive property and invested the proceeds in three brokerage accounts. When the parties separated three years later, the accounts had increased in value to approximately $79,000. In addition, both Selsor and Mossman contributed to their separate teacher’s retirement accounts and deferred compensation accounts during their marriage. In 1988, Mossman repurchased the Poly Drive property at an FHA foreclosure sale for $35,000. He again rented this property.

During the marriage, Selsor and Mossman accumulated various joint assets and liabilities. The major items included real rental property, a refinanced mortgage to improve their residence, and investments. Selsor does not dispute the valuation or division of the majority of the marital assets or liabilities. Her appeal centers around the District Court’s award to each party of his or her respective retirement and deferred compensation accounts.

Did the District Court equitably apportion the marital assets between the parties?

Selsor contends that because each party was awarded his or her respective retirement and deferred compensation accounts, the District Court did not equitably apportion the marital assets. She claims she received a disproportionate, unfair, and inequitable portion of the property of the parties. We disagree.

With the exception of the deferred compensation and retirement accounts, Selsor admits, and the record supports, that both parties were awarded real and personal property of approximately the same value. Although she does not agree with the District Court’s valuation of the Poly Drive property, Selsor admits that the valuation of this real property is not the major issue. At trial, Selsor placed a value of $65,000 on this property while Mossman valued the property at $48,000. Neither party presented any evidence as to the appraised value of the property. The District Court valued the Poly Drive property at $50,000. Our standard of review in regard to the factual findings of the District Court as to the value placed upon marital property, as well as the division of marital property, is whether the valuation or division is clearly erroneous. In re the Marriage of Danelson (Mont. 1992), 833 P.2d 215, 219, 49 St.Rep. 597, 599. In the case at bar, we hold the $50,000 valuation placed upon the Poly Drive property was not clearly erroneous and will not be disturbed on appeal.

For purposes of clarity, we will also briefly discuss the $79,000 in the three brokerage accounts. As stated above, the brokerage accounts were opened when Mossman sold the Poly Drive property. The record supports the District Court’s findings that Selsor did not contribute to the creation or maintenance of these accounts. At trial, Mossman testified that he withdrew the money from these accounts shortly after the parties separated, and gambled it away in Nevada. Selsor offered no testimony to contradict this story. The District Court excluded this asset from the marital estate because it reasoned it had no way to retrieve and divide property which was no longer in existence.

We now turn to Selsor’s main contention. She argues that because her deferred compensation and retirement accounts are substantially less than Mossman’s, the division of the marital estate was inequitable. As to the retirement accounts, Selsor relies upon a stipulated economic report of the present values of the retirement plans introduced at trial. The report, prepared by an economist, determined the present value of Mossman’s and Selsor’s retirement benefits in the Montana Teachers’ Retirement System (MTRS) accruing between June 1980 and July 1990. As of July 31, 1990, the gross present value of Mossman’s account was $97,645.37. Selsor’s account had a gross present value of $30,941.37.

Section 40-4-202, MCA, controls the division of property in dissolutions of marriage.

In a proceeding for dissolution of a marriage,..., the court, without regard to marital misconduct, shall,..., finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

Section 40-4-202(1), MCA. On its face, the statute does not speak to equality in apportionment of the marital property and assets. Rather, the statute speaks to an equitable division. As we have said, “[it] is well settled in Montana that property division does not need to be equal but instead must be equitable.” In re the Marriage of Scott (Mont. 1992), 835 P.2d 710, 714, 49 St.Rep. 634, 636.

The District Court found that Mossman had a larger retirement account than Selsor because he had worked longer than she had. The District Court reasoned that the difference in the retirement accounts was “readily explainable as being earned prior to marriage and after separation” and reflects what “is an equitable division.” The record supports this finding. After taking into account several necessary variables, the economic report concluded that the present value (as of July 31,1990) of Mossman’s contributions to his retirement account at the time of marriage were $23,615.80. Likewise, utilizing identical methodology, the economic report concluded that the present value of Selsor’s contributions to her retirement account at the time of marriage were $7,445.47. The economic report used a fixed rate of 7 percent as the interest the retirement accounts would earn.

Taking into account that Mossman had three times the accrued benefits of Selsor at the time of marriage, it is not anomalous that Mossman’s retirement account would grow more quickly than Selsor’s, notwithstanding the fact that the rate of return (7 percent) was the same for both parties. Moreover, though the record reveals no date specific, Selsor admits that shortly after the parties were married, she became a full professor and chair of the art department at Eastern. Thus, her salary was at par with Mossman’s for the majority of the marriage. It follows then, that both parties contributed approximately the same amount to their respective retirement accounts during the duration of the marriage.

Under § 19-4-602, MCA, normal member contributions to the MTRS are 7.044 percent of earned compensation. Selsor’s exhibit numbers 5 and 6 reveal that for the pay period ending January 12, 1992, the parties’ bi-weekly contributions to their respective retirement plans were within $2.52 of each other, Selsor’s contribution being the higher. In light of the record, it is evident that the increase in the parties’ respective retirement accounts were based upon approximately equal earnings, equivalent rates of return, and equivalent member contributions. Quite simply, the present value of Mossman’s retirement account as listed in the economic report is greater because of the amount accrued prior to marriage. It is not based upon disproportionate contributions by Selsor into Mossman’s retirement account.

“Section 40-4-202(1), MCA, refers to a spouse’s contribution to ‘the increased value of property acquired prior to marriage,’....” Scott, 835 P.2d at 714. In the case at bar, we hold Selsor made no contribution which resulted in an increased value of the retirement account Mossman had acquired prior to marriage. The District Court’s finding that each party was entitled to his or her respective retirement account was not clearly erroneous.

Finally, we address Selsor’s contention that the division of the deferred compensation accounts was inequitable. The record reveals that as of December 31, 1991, Mossman’s deferred compensation account was worth $30,600. Selsor’s deferred compensation account was worth $21,208 as of June 30, 1991. The parties agreed that the deferred compensation accounts were initiated during the marriage, although neither was certain as to the exact date the accounts were opened. By Selsor’s own admission, the program allowed either party to defer any amount of his or her respective income so long as the amount did not exceed 20 percent of annual gross income. Because the parties were earning approximately the same income, and were free to choose how much of their income they wished to defer (within the limits set by the program), we hold it was not error for the District Court to find that each party was entitled to his or her respective deferred compensation account.

In the case at bar, the findings of the District Court as to the division of marital property were not clearly erroneous. Accordingly, the judgment is affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    IN RE THE MARRIAGE OF MARGARET HAYES, Petitioner and Respondent, and ROBERT HAYES, Respondent and Appellant.
    No. 92-399.
    Submitted on Briefs December 22, 1992.
    Decided February 2, 1993.
    50 St.Rep. 87.
    256 Mont. 266.
    846 P.2d 272.
    For Appellant: Robert D. Morrison, Whitefish.
    For Respondent: Matthew W. Knierim, Glasgow.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Seventeenth Judicial District, Valley County, involving a portion of a marital dissolution judgment dividing property between the parties. We vacate the judgment as to the property settlement and remand for further consideration by the court.

We consider the following issue on appeal:

Did the District Court err in determining that both parties had agreed to a property settlement and in issuing Findings of Fact and Conclusions of Law based upon that agreement?

In July of 1990, Margaret Hayes filed a petition for dissolution of her marriage to Robert Hayes. The case was regularly scheduled for trial on May 26, 1992. Prior to this date, the court asked that each party provide it with a written report. The parties and their counsel appeared before the court at 9:00 a.m.; they were asked if any possibility existed that a settlement could be reached. The parties then proceeded to engage in negotiations which lasted until approximately 5:00 p.m. At that time the court reconvened for the purpose of considering the terms of the settlement.

Following the reading of the settlement into the record, the court asked counsel to reduce the agreement to a formal document:

THE COURT: All right.... I really think it would be best if you could incorporate the terms of this Settlement Agreement into a formal document, written document.
WIFE’S ATTORNEY: I will do so in the morning and get you a copy, Rich [attorney for husband] and you guys can look at it before we submit it to the Judge.
HUSBAND’S ATTORNEY: Agreed.
WIFE’S ATTORNEY: OK.
THE COURT: And then once you’ve done that I will admit that into evidence and I will sign a Proposed Decree that one of you can prepare. Do you want to prepare that?
WIFE’S ATTORNEY: I’ll prepare it.

However, no formal agreement was ever prepared. The court nonetheless entered its Findings of Fact and Conclusions of Law and Dissolution Decree on May 29, 1992.

On appeal, the husband argues that because the agreement was never reduced to writing as required by Section 40-4-201, MCA, and the court, the property settlement should be vacated and the case remanded for a trial. Further, the husband contends that the court never valued the property and did not reach a net value for the entire estate. The wife argues that a separation agreement does not need to be written but can also be in the form of an oral stipulation. According to the wife, the court was not asked to value the property because a separation agreement was in existence and, therefore, the court could only make a finding of unconscionability to change it. In addition, the wife asks us to consider letters written by her counsel to opposing counsel concerning the parties’ agreement to the proposed decree and findings. Copies of these letters are attached to respondent wife’s brief.

The position of this Court is that we will not consider on appeal facts unsubstantiated by the record in the case. First National Bank of Cut Bank v. Springs (1987), 225 Mont. 62, 731 P.2d 332. Therefore, we do not consider these letters on appeal as they are not part of the record. On remand the District Court may choose to receive such proof regarding any purported agreement as to the Findings and Conclusions.

The pivotal question here is whether an agreement exists between the parties upon which the court could have based its Findings and Conclusions. The record does not contain a written separation agreement. The record does contain the court’s directive to counsel to prepare such a document. It is clear that the court understood the importance of having the agreement reduced to writing. And while we commend the court for its efforts in getting the parties to reach a settlement agreement, such agreement of necessity needs to be specific to avoid the type of controversy presented here. The record does not establish the agreement of the parties to the Findings and Conclusions of the District Court.

We vacate the District Court’s Findings of Fact and Conclusions of Law concerning the property settlement and remand to the District Court for its further consideration in light of this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, TRIEWEILER, McDONOUGH and GRAY concur.