text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JESSE JAMES HIGAREDA, Defendant and Appellant.
    No. 88-498.
    Submitted on Briefs April 27, 1989.
    Decided July 11, 1989.
    777 P.2d 302.

      McKinley Anderson, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., George M. Schunk, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., and Marty Lambert, Deputy County Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

A jury empaneled in the District Court of the Eighteenth Judicial District, Gallatin County, found Jesse James Higareda, the defendant, guilty under § 45-6-204, MCA, of the offense of burglary. The District Court sentenced defendant to the Montana State Prison for a term of 15 years with five years suspended and credit for time served. Defendant appeals. We affirm.

The issues raised on appeal are:

1. Whether the District Court erred in denying defendant’s motion to suppress statements made to an arresting officer.

2. Whether the District Court erred in admitting testimony of defendant’s parole officer during a jury trial.

On February 29,1988, at approximately 3:00 a.m., two men entered the Country Lanes Bowling Alley, two miles west of Bozeman, through an air conditioning duct on the roof of the building. The men triggered a silent alarm to which the Gallatin County Sheriff’s Department responded. Anthony May, defendant’s partner, was apprehended in the building at that time. The safe, a cash register, a cigarette machine, a pool table, and poker machines had been looted. Several buckets of quarters had been set aside and burglary tools were found in the building.

At approximately 3:30 p.m. that same day, the sheriff’s department was again called to the Country Lanes to investigate a report of a man, later identified as the defendant, hiding above a false ceiling in the building. Police officers surrounded the building. The defendant, who attempted to flee, was then arrested in a nearby field. He was placed in a patrol car and brought back to Country Lanes where he was identified by the manager as the person who had been spotted in the ceiling.

At that point, the arresting officer asked defendant what the name of his partner was in the Country Lanes burglary, to which defendant replied, “Didn’t he tell you?” He further stated to the officer that if his partner did not give the police his name, the defendant was not going to either.

Defendant was then transported to the Gallatin County Sheriffs Department where he telephoned his parole officer. He told his parole officer, “I really screwed up.” He also told the parole officer of his conversation with the detective.

On March 15, 1988, an information was filed in the District Court charging defendant with burglary in violation of § 45-6-204, MCA. Defendant pled not guilty during his March 17, 1988, arraignment. On April 7, 1988, a hearing was held to consider defendant’s motion to suppress the statements he made to the arresting officer. The motion was denied and a jury trial commenced on June 6, 1988. Defendant was found guilty of the charge and, on June 27, 1988, was sentenced to the Montana State Prison for a term of 15 years with 5 years suspended and credit for time served.

The first issue raised on appeal is whether the District Court erred in denying defendant’s motion to suppress statements made to an arresting officer.

The arresting officer, after taking defendant in custody, asked defendant what the name of his partner was in the Country Lanes burglary. The defendant replied, “Didn’t he tell you?” The officer explained that he thought defendant’s partner had given him a false name to which defendant replied that if his partner had not given the officer his name that defendant would not either. Defendant contends that because he was never advised of his rights prior to the questioning, as required under Arizona v. Miranda (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the statements should be suppressed. After a hearing on the matter, the motion to suppress was denied.

We held in In Re Matter of J.W.K. (Mont. 1986), [223 Mont. 1,] 724 P.2d 164, 167, 43 St.Rep. 1483, 1486, that the standard to be applied in a motion to suppress is whether the District Court predicated its decision on substantial credible evidence. The record reflects that defendant did not recall being advised of his rights after being taken into custody. In fact, at the suppression hearing defendant testified that he believed he had been advised of his rights prior to questioning but that he was confused. Moreover, the arresting officer testified that he did indeed advise defendant of his rights before defendant was questioned.

Further, the District Court in a suppression hearing must look at the totality of circumstances surrounding the statements. J.W.K., 724 P.2d at 167. The circumstances may include the experience, conduct, and capacity to understand warnings. See State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1049. Here, the only unusual circumstance alleged by defendant was his language difficulty. Nothing in the record, however, reflects an inadequate ability of defendant to communicate or understand the English language. In fact, during the suppression hearing, defendant was asked to convey his understanding of his rights and replied, “The right to an attorney, right to remain silent, the right to have an attorney present during any questioning, I guess. That’s about it.” The District Court properly denied defendant’s motion to suppress in view of the circumstances and based on the testimony of the arresting officer and the defendant.

The second issue raised on appeal is whether the District Court erred in admitting testimony of defendant’s parole officer during a jury trial.

Under § 2-2-1.02(6), MCA, a public officer is defined as any state officer. State officers are defined under § 2-2-102(8), MCA, as all elected officers and directors of the executive branch of state government. Although the Parole and Probation Division comes under the executive branch of government, a parole officer is neither an elected officer nor director. Therefore, a parole officer is not a state officer as defined above and thus, no privilege under § 26-1-810, MCA, extends to communications made to parole officers.

Defendant argues that his parole officer’s testimony was unduly prejudicial since it showed that defendant had been convicted of a crime. Although the issue is one of first impression in Montana, Washington allowed a parole officer to testify at a parolee’s trial. In State v. Terrovona (1986), 105 Wash.2d 632, 716 P.2d 295, a probation officer was permitted to testify in a murder trial since the testimony tended to establish a motive for murder. The Court found that because the probative value of the probation officer’s testimony outweighed the prejudicial effect, the trial court did not abuse its discretion in allowing the testimony. The Court found the testimony relevant. See also State v. Chavez (1988), 111 Wash.2d 548, 761 P.2d 607 and State v. Brown (1987), 47 Wash.App. 565, 736 P.2d 693. We so adopt this rationale where such testimony is relevant.

Rule 401 M.R.Evid., provides in part:

“Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

In the present case, the defendant’s parole officer testified that defendant stated, “I really screwed up,” and that he had not revealed the name of his partner to the police. The defendant voluntarily made the statements after he had been arrested and advised of his rights as discussed earlier. Defendant initiated the conversation when he telephoned his parole officer to inform the parole officer of his arrest. Although defendant was required to inform his parole officer of arrest, the statements he made during the telephone conversation were not a result of an interrogation but were made freely and conveyed voluntarily. While some prejudicial effect is inherent in this type of testimony, we cannot say that it outweighed the probative value. The statements are relevant as an admission of guilt. The District Court properly admitted testimony of defendant’s parole officer.

Affirmed.

MR. JUSTICES HARRISON, McDONOUGH, GULBRANDSON and WEBER concur.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RANDALL MARK RUDOLPH, Defendant and Appellant.
    No. 88-508.
    Submitted on Briefs June 8, 1989.
    Decided July 11, 1989.
    777 P.2d 296.

      William Boggs, Missoula, for defendants and appellant.
    Marc Racicot, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Missoula, Craig Friedenauer, Deputy County Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Randall Rudolph appeals his conviction of robbery in the Fourth Judicial District, Missoula County. The four issues he raises on appeal are:

1. Was the show-up identification of him as a co-assailant impermissibly suggestive so as to violate his due process rights;

2. Was it an abuse of discretion to deny defendant’s protective order regarding witness Trowbridge;

3. Was the State impermissibly allowed to admit into evidence a nondisclosed statement of the defendant;

4. Was it an abuse of discretion to refuse the admission of witness C. Rude’s testimony.

We affirm.

On the evening of December 8, 1986, Greg Jasperson was assaulted in downtown Missoula near the corner of Pattee and Main Streets. His assailants, two males of average height and stocky build, beat him until he fell to the ground and then kicked him about the head until he became unconscious. The assailants robbed him of the contents of his pockets and then briskly walked away proceeding south down Pattee Street.

Various stages of this crime were viewed by three eyewitnesses. Witness Thieler came out of the Bon, a nearby clothing store, and got in her car which was in the Bon parking lot. She exited the parking lot onto Pattee Street and immediately noticed two men kneeling over a body on the sidewalk by the Executive Motor Inn. She assumed the two men were aiding the man on the sidewalk until she saw one of the men kick the body with his boot until it rolled into the gutter.

By this time Thieler’s car was at the stop sign of Pattee and Main. She watched the two men walk briskly south down Pattee Street. She kept them in sight in her rearview mirror long enough to note that they did not go into the Elks Club, but rather kept going southward on Pattee toward the Missoula Sheraton. Thieler testified at trial that although she was trying to note where the men went, she momentarily lost sight of them while she turned her head to check for traffic.

Thieler then drove around the block and returned to the Bon to seek assistance for the victim. She enlisted the assistance of a man she knew at the Bon. However, by the time they returned to the body, several people were already assisting the victim and she was advised that the police had been called. The police arrived momentarily.

Orlando Gonzales also witnessed part of the crime. Gonzales was walking north on Pattee Street near the Elks Club when he passed by two men going through a wallet. Gonzales assumed that the two were discussing a purchase and were talking about how much money they had.

As Gonzales approached the Executive Inn parking lot, he noticed what appeared to be a “bum” lying in the street. When he got closer, he discovered it was a well-dressed man who had obviously been hurt. He ran into the office of the Executive Inn where the receptionist was phoning the police at that minute.

The third witness was Leon Furnish. He was sleeping in a room at the Executive Inn when he was awakened shortly after 9:00 p.m. by loud cries for help. He ran to the window and on the street below saw two men kicking a man who had fallen to the sidewalk. The victim raised his hands to protect his eyes and teeth and cried, “please don’t kick me, why are you kicking me.”

The attackers kicked the back, sides and head of the victim. Furnish then saw the assailants search the pockets and take the contents. As they stood up to leave, one of the attackers shoved the body into the street with his boot. They then walked down Pattee Street in a southerly direction and out of Furnish’s view. As they walked off, Furnish noted that one man wore a hat of some type which appeared to have something “flapping” out from underneath it.

Furnish called the hotel desk and told the receptionist to call the police and call an ambulance for the man who had been beaten outside.

The police call came in at 9:15. At 9:18, the police arrived at the scene. By that time, several passers-by had gathered, covered Greg with a sleeping bag and were administering first aid.

The police asked if anyone had seen the attack or noticed anyone leaving the area. Thieler and Gonzales both explained that they saw two men, dressed in heavy dark coats, one with long flowing blonde hair and a cap on and one with dark hair walking south on Pattee. The police left immediately proceeding south on Pattee to search the area.

At the southern end of Pattee Street near the Missoula Sheraton (approximately six blocks away), the police spotted two men, one with dark hair and one with long blonde hair and a black stocking cap. These two men were stopped and questioned by one police officer while another officer returned to the crime scene to question the witnesses.

The two eyewitnesses at the scene, Thieler and Gonzales, were asked if they would go with the police to see if they could identify two men which were stopped by the police. They agreed and were transported by police car, Thieler in the front seat and Gonzales in the back seat. The witnesses were separated by a plexiglass screen and did not confer with one another.

When they reached the Montana Power substation near the Sheraton, where the other patrolman was detaining the two men, Thieler and Gonzales remained in the car. The two men were placed approximately fifteen feet from the front of the patrol car with its headlights shining on them. The two men gave a profile view and view of their backs. Witness Thieler asked if one of them would put his hat back on. The patrolman with the witnesses radioed to the other officer and asked if either suspect had a cap, whereupon Rudolph produced his black stocking cap and donned it.

Thieler then quickly made a positive identification stating that the long blonde hair coming out from under the black stocking cap created the exact figure which she saw.

Gonzales likewise identified the two suspects as the men he passed who were going through the wallet. Gonzales based his identification on the stature and build of the two men as well as the warm, dark clothing they were wearing.

Rudolph was tried separately from the co-defendant, and was convicted of robbery by a jury on October 19-21, 1987. He was sentenced to fifteen years in the Montana State Hospital in lieu of prison incarceration. He was also designated a dangerous offender. Rudolph appeals, questioning many procedural aspects of the identification and the trial.

I. “Show up” Identification

Rudolph asserts that the conviction was based solely on the “show up” identification held that night and that procedure violated his due process rights by being impermissibly suggestive. We disagree.

The importance of the eyewitness identification is underscored, Rudolph asserts, by the lack of corroborating evidence and inconsistencies in the State’s case. All accounts of the incident state that the two assailants proceeded south along Pattee Street walking on the east sidewalk. However, the victim’s wallet was found the next day across the street from the attack on the west side of Pattee Street. Witness Thieler admitted losing sight of them momentarily while she looked both ways for traffic at the intersection. The State argued that it must have been just long enough for one of them to dispose of the wallet.

The second inconsistency deals with the money stolen from the victim. Jasperson testified that only a small amount of money was stolen: five to eight dollars. However, when stopped just moments after the attack, Rudolph had less than two dollars in his possession.

Thirdly, Rudolph’s clothing, a dark green ski jacket, black cap, blue jeans and boots, were not retained by the police for evidence because Rudolph asked to keep his clothes, stating that he had no other clothes with him in Missoula. Thus, when he was released from jail, he was given his clothes. He was then unable to produce them at trial; however, all witnesses, as well as Rudolph, agree to the description of his apparel that night.

Therefore, it was not possible to check the clothing for blood or hair samples, although no blood stains were noted in the police report. The officers testified that they did not recall any blood on Rudolph’s clothes or boots that night.

Lastly, at trial Gonzales and Thieler were unable to identify Rudolph by means of a facial photo lineup. Each stated that their identification was based, not on a view of the faces, but rather on stature (height, weight and build), hair (color, length and facial hair), and clothing (style, color, and the cap). Thus, the identification became a key factor in the prosecution’s case.

To pass constitutional muster, a pretrial identification must not be (1) impermissively suggestive, nor (2) have such a tendency for misidentification under the totality of the circumstances that it violates due process rights. This two-prong test was set forth in State v. Lara (1978), 179 Mont. 201, 587 P.2d 930, and is controlling on this issue.

In State v. Lara, defendant participated in a “show up” wherein he was identified by the victim as the armed robber involved in a one person robbery of a Laurel food store. The Laurel police apprehended Lara within fifteen to twenty minutes of the robbery and he was identified by the victim at the scene of the arrest shortly thereafter.

Regarding that identification, we stated:

“Considering the totality of the circumstances we conclude that while the identification procedure was unnecessarily suggestive, it did not create a situation in which there was a substantial likelihood of misidentification and therefore not violative of due process.”

Lara, 587 P.2d at 933.

We also find Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, instructive on this issue. Biggers sets forth five factors relating to the circumstances under which pretrial identifications are made. Trial courts should consider the following in evaluating the risk or likelihood of misidentification:

“. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-383.

Thieler’s testimony regarding her identification certainly passes any test set up by the Lara case and by the Biggers factors. Thieler stated that she was concerned the attackers would see her watching them, so she drove forward slowly and then proceeded to watch them for several minutes in her rearview mirror. Thus, her opportunity to view the attackers was good, even if she did not view their faces specifically.

Her attention was keen and her description to the police was accurate regarding the assailants’ gender, size, hair color and length, and clothing style and color. Also lending credibility to the validity of the identification was the very close proximity in time and distance from the crime scene. The suspects were apprehended just blocks away from the scene and only moments after the police arrived. Further, all witnesses testified that the downtown streets were deserted that particular winter night, shortly after 9:00 p.m. Not only did they fit the description, the two suspects detained were also the only two pedestrians within many blocks of the crime scene.

Rudolph’s own testimony regarding his actions on that night was incredible. Although in the immediate vicinity, Rudolph testified that he had no knowledge whatsoever of the crime, including the fact that he heard no cries for help, no sirens, and saw no lights flashing from emergency help vehicles.

The State concedes that the identification process was suggestive by the mere fact that the two people were stopped so close to the scene, so soon, and that only those two were shown to the witnesses. Indeed, a “show up” identification requiring a “yes or no” answer is a far less desirable situation than positively picking out a person from an anonymous lineup. Biggers, supra; State v. Lara, supra; State v. Campbell (1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197: As we cautioned in Campbell, “[l]aw enforcement agencies [are] ill advised to rely solely on one-to-one showups in identifying suspects with a crime.” Campbell, 711 P.2d at 1362.

Suggestive as it was, based on Lara and the factors set forth in Biggers, we conclude that this identification did not have such a tendency for misidentification so as to violate Rudolph’s due process rights under the immediate circumstances of this case.

We conclude the Biggers factors were also met by eyewitness Gonzales and that his identification was also constitutionally sound. Gonzales did not view them as long as Thieler and his identification seemed apprehensive initially. However, Gonzales passed the suspects on a narrow sidewalk near the crime scene and observed them long enough and carefully enough to notice their gender, size, clothing and what they were doing. His opportunity to view them and the attention he displayed lend reliability to his identification. Also helpful is the close proximity which was discussed above regarding witness Thieler. We find no error in admitting into evidence the results of this “show up” identification. We note here that witness Furnish did not participate in the identification that night, but he did testify at trial as to what he observed that night.

Lastly, we are not disturbed by the minor discrepancies in the witnesses’ descriptions which were asserted by defense counsel. These discrepancies go more to the credibility of each witness and the weight the jury will give their testimony, rather than to the constitutionality of admitting the identification based on varying testimony of other witnesses. See Campbell, supra.

II. Protective Order

Defense counsel moved for a protective order to conceal the contents of Keith Trowbridge’s testimony to prevent the State from “capitalizing” on it by changing their strategy. The motion was denied. We agree.

Keith Trowbridge, an employee of the Firestone Service Station located directly across the west side of the street from the crime scene, would testify that he found the victim’s wallet in the alley behind the Firestone property the morning after the robbery. Defense counsel anticipated that the State’s case would have Thieler keeping the assailants in constant view on the east side of the street from the time they left the body until they were out of sight. Defense counsel did not want to alert the prosecution to this discrepancy in locations because the police report stated that the wallet was found at the Firestone station and yet the State had not interviewed any of Firestone’s employees.

Defense counsel makes much of the fact that after this motion was denied, Thieler’s testimony was actually that she momentarily lost sight of the two assailants (in which time one of them may have crossed the street). Defense asserts that the issue of continuous or noncontinuous observation by Thieler never would have come up at trial but for the disclosure of witness Trowbridge, and thus his defense was sabotaged. We disagree.

Admitting or refusing evidence lies within the sound discretion of the trial judge. Those rulings will not be overturned unless there is a showing of an abuse of discretion by the trial judge in issuing his ruling. State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 46 St.Rep. 338; Cooper v. Roston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 45 St.Rep. 978. No such showing can be made in this case.

Protective orders should issue when the disclosure of a witness’s identity would result in a risk or harm outweighing any usefulness of the disclosure to any party. Section 46-15-328(1), MCA. (Emphasis added.) Obviously, there are two flaws with defendant’s motion. First, there was no risk or harm to the witness shown by the defense. Indeed, no harm could result to the witness by the disclosure of his identity — as he was already generally identified in the police report and was not in danger.

Secondly, the statute seeks to weigh the usefulness of the disclosure gained by either party. Defense asserted that the harm done to its case was the impeachment of witness Thieler being blunted and that harm far outweighed the disclosure’s usefulness. We disagree. As noted by the trial judge, a greater showing of harm or imbalance must be made in order to invoke such an extraordinary restriction. It is obvious from the record the State was aware that the wallet was found at the Firestone Station and could have interviewed the employees had they seen fit to do so. Under these facts, we affirm the trial court’s denial of extraordinary relief in the form of a protective order.

III. Nondisclosed Statement

When questioned as to why Rudolph’s clothes were returned to him, rather than seized for evidence, Officer Wicks testified it was because Rudolph stated he had no other clothes in Missoula, all his belongings were in Kalispell. It is undisputed that this hearsay statement by Rudolph previously had not been disclosed and the State fully acknowledges its duty under § 46-15-322(l)(b), MCA, to disclose “all written or oral statements of the accused . . .” However, the State asserts that the defense cannot raise the issue of this undisclosed hearsay on appeal because it did not object at trial; or, in the alternative, that the defendant was not prejudiced by allowing the hearsay remark into evidence. We agree.

The verbatim exchange at trial was as follows:

“Q. [By prosecutor Friedenhauer]: Go ahead, why did you release the clothes?
“A. [By Officer Wicks]: Mr. Rudolph indicated to me that was the only set of clothes he had in Missoula, that he left all his other belongings behind in Kalispell.”

Several questions prior to this exchange, defense objected to the State’s line of questioning regarding the co-defendant. The generic objection (which stated no grounds) was overruled by the court. The court, however, went on to admonish the State to limit its questioning to Rudolph only. Whereupon, the exchange in question occurred. We find no basis in the record for defense counsel’s assertion that the hearsay statement was admitted over his objection.

No objection by defense counsel was made following this exchange either. Therefore, defendant cannot now claim that the District Court abused its discretion and committed reversible error by allowing the statement into evidence.

IV. Testimony Exclusion

Our standard of review for this issue is identical to the previous issue: an abuse of discretion must be shown before a District Court’s ruling on evidentiary questions will be overturned.

Defendant argues that the District Court abused its discretion in refusing to admit the testimony of witness C. Rude. Defense counsel made an offer of proof in chambers asserting that Rude would testify to his eavesdropping on a conversation which occurred in Missoula during early December 1986. The conversation related by two men, now in trouble with the Washington state authorities, was regarding a man they had “rolled” in downtown Missoula, taking a small amount of money from the victim.

The District Court analyzed the proposed testimony in relation to the crime with which Rudolph was charged. The judge found the proposed testimony was too vague regarding the time of the occurrence and the actual crime committed (“rolled” was the best recollection Rude could give and he did not recall the day of the “crime”). Thus, after finding the proposed testimony too tenuous and remote from Rudolph’s case, the judge excluded the evidence for failing the relevancy requirements. We agree.

Relevancy is defined in Rule 401, M.R.Evid., as follows:

“. . . evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Rude’s testimony sought to exculpate Rudolph by incriminating two other unknown individuals upon whom he had been eavesdropping.

The similarities between the crime overheard by Rude and the one attributed to Rudolph are few: two men perpetrated the offenses (one dark haired and one blonde), in downtown Missoula, in December of 1986, for a small amount of money.

The unknown factors of the evidence include what crime was committed, upon whom, when and by whom. These far outweigh the similarities of the two occurrences. Thus, defense is counsel is unable to prove that the proposed testimony is so close in time, place and similar in style so as to be relevant to the question of Rudolph’s innocence or guilt. Absent a closer connection between the two occurrences, or at the very least, a definition of the crime committed by the other unknown assailants, we find no abuse of discretion in refusing this testimony.

In summary, we conclude that the “show up” pretrial identification of Rudolph was constitutionally sound and that the trial court did not abuse its discretion regarding the evidentiary rulings contested at trial.

Judgment affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY and HUNT concur.


author: MR. JUSTICE GÜLBRANDSON

text:
    JIM ROMERO, Plaintiff and Appellant, v. J & J TIRE, JMH, INC., A Montana corporation, and Kent Johnson, Defendants and Respondents.
    No. 88-569.
    Submitted on Briefs June 1, 1989.
    Decided July 11, 1989.
    Rehearing Denied Aug. 25, 1989.
    777 P.2d 292.

      Joe Nascimento, Montana Law Center, Helena, for plaintiff and appellant.
    Mike McCarter, Hughes, Kellner, Sullivan & Alke, Helena, for defendants and respondents.
    David Rusoff, Montana Human Rights Com’n, Helena, Intervenor.
   MR. JUSTICE GÜLBRANDSON

delivered the Opinion of the Court.

The District Court for the First Judicial District, Lewis and Clark County, dismissed plaintiff Romero’s complaint of discrimination in employment for failure to comply with the Montana Human Rights Act. Romero appeals. We affirm.

The issues are:

1. Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by requiring a person to file a race discrimination claim with the Montana Human Rights Commission prior to bringing an action in district court?

2. Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by providing that orders in discrimination cases may not include punitive damages?

3. Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by providing a hearing before the Human Rights Commission rather than providing a trial by jury?

Romero brought this action in December 1987 alleging that the defendants discriminated against him in employment based upon his race, resulting in his constructive discharge from their employ. Defendants filed a motion to dismiss on the grounds that the District Court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. This was based on Romero’s failure to go through administrative proceedings with the Human Rights Division before filing his complaint in District Court. Romero’s response to the motion to dismiss alleged that the administrative procedure provided for in the Montana Human Rights Act, §§ 49-2-101 through -601, MCA, (the Act) is unconstitutional.

The District Court treated Romero’s constitutional challenge as a request for a declaratory judgment. The Montana Human Rights Division intervened in the action. The court granted defendants’ motion to dismiss, finding that Romero failed to show that the Act, was unconstitutional.

In January 1989, the Human Rights Commission issued Romero a right-to-sue letter, which would allow him to file his claim in District Court within 90 days. He did not do so. The Human Rights Commission argues that this appeal should be dismissed because it is moot: all the relief requested except punitive damages could have been obtained following receipt of the right-to-sue letter. However, because the constitutional questions raised here are capable of repetition, yet could evade review, we will consider the issues raised on appeal. See Matter of N.B. (1980), 190 Mont. 319, 322-23, 620 P.2d 1228, 1230-31.

I.

Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by requiring a person to file a race discrimination claim with the Montana Human Rights Commission prior to bringing an action in district court?

The constitutionality of a statute is presumed; the party challenging it has the burden of proving it unconstitutional beyond a reasonable doubt. Fallon County v. State (Mont. 1988), [231 Mont. 443,] 753 P.2d 338, 339, 45 St.Rep. 748, 750.

In Drinkwalter v. Shipton Supply Co., Inc. (Mont. 1987), [225 Mont. 380,] 732 P.2d 1335, 44 St.Rep. 318, this Court held that a victim of sexual harassment could file her complaint directly in district court, without going through the administrative procedures outlined in the Act. After that decision, the 1987 Legislature enacted § 49-2-509(7), MCA, with an immediate effective date. That section provides that the Act establishes the exclusive remedy for acts constituting a violation thereof and that no claim for relief based upon such acts may be entertained by a district court other than by the procedures the Act specifies. The Act requires that a claimant must file a complaint before the Human Rights Commission, which has 12 months in which to hold a contested case hearing, before a case may be filed in district court. Section 49-2-509(1), MCA. Romero argues that this requirement denies him equal protection of the law and access to the courts as guaranteed under U.S. Const, amend. V and XIV and Art. II, §§ 4,16, and 17, Mont. Const.

Romero cites White v. State (1983), 203 Mont. 363, 661 P.2d 1272, and Pfost v. State (1985), 219 Mont. 206, 713 P.2d 495, as authority. Both cases were overruled in relevant part in Meech v. Hillhaven, (Mont. 1989, [238 Mont. 21,] 776 P.2d 488. Moreover, those cases both dealt with limitations on remedies, not procedural requirements.

[2] We look instead to Linder v. Smith (Mont. 1981), [_Mont. -,] 629 P.2d 1187, 38 St.Rep. 912, in which this Court upheld the constitutionality of the Montana Medical Malpractice Act. Under that act, a litigant is required to go through administrative proceedings before the Medical Malpractice Panel before filing a complaint in district court. This Court held that access to the courts may be hindered if another fundamental right is not involved and there exists a rational basis for doing so. We found that the medical malpractice crisis in Montana was a rational basis for hindering access to the courts. Linder, 629 P.2d at 1190. We also held that because the requirement that medical malpractice claimants proceed first through the Medical Malpractice Panel operated in the same manner upon all persons in like circumstances, equal protection guarantees were not violated. Linder, 629 P.2d at 1193. In a similar manner, the requirement that discrimination claimants proceed first through the Montana Human Rights Division operates equally upon all persons in like circumstances. Although Romero argues that freedom from racial discrimination is a fundamental right in Montana, this Court has not previously so held and is not prepared to do so based on the arguments made by Romero. We hold that the State’s purpose of combating illegal discrimination is a rational basis for delaying access to the courts by using a specialized agency to handle discrimination complaints.

The Act does not deny discrimination claimants access to the courts. Judicial review of administrative proceedings before the Human Rights Commission is available. Also, after 12 months in which a hearing has not been held, a claimant is generally entitled to a right-to-sue letter allowing access to the courts. See § 49-2-509, MCA. We hold that the Act does not violate the U.S. or the Montana Constitution by requiring a claimant to file a complaint before the Human Rights Commission before bringing an action in district court.

II.

Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by providing that orders in discrimination cases may not include punitive damages?

Section 49-2-506(2), MCA, precludes punitive damages in actions brought under the Act. Romero argues that there is a fundamental right to claim punitive damages. He cites no authority, and his proposition is not supported by this Court’s previous opinions. Punitive damages are an extraordinary remedy outside the field of usual redressful remedies. Safeco Ins. Co. v. Ellinghouse (1986), 223 Mont. 239, 725 P.2d 217, 226-27, 43 St.Rep. 1689, 1701. There is no constitutional right to punitive damages. White v. State (1983), 203 Mont. 363, 370, 661 P.2d 1272, 1275, overruled on other grounds, Meech v. Hillhaven, (Mont.1989,) [238 Mont. 21,] 776 P.2d 488. A plaintiff is never entitled to exemplary damages as a matter of right. Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 511, 414 P.2d 918, 924. We hold that there is no violation of either the United States Constitution or the Montana Constitution in the provision in the Montana Human Rights Act which precludes punitive damages.

III.

Does the Montana Human Rights Act violate the Constitution of the United States or of the State of Montana by providing a hearing before the Human Rights Commission rather than providing a trial by jury?

Romero cites Art. II, § 26, Mont. Const., and U.S. Const, amend. V, as authority that he is entitled to a jury trial. This Court has stated that in discrimination cases under the Human Rights Act, it is helpful to look to federal law under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq. Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d 841, 844. This Court has held that “the right to trial by jury in this state is the same as that guaranteed by the Seventh Amendment [to the United States Constitution]. [Citation omitted.]” Linder, 629 P.2d at 1189. The federal cases do not support Romero’s position.

“[W]hen Congress creates new statutory ‘public rights,’ it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at common law.’ ”

Atlas Roofing Co. v. Occupational Safety Comm’n. (1977), 430 U.S. 442, 455, 97 S.Ct. 1261, 1269, 51 L.Ed.2d 464, 475. The right of jury trial is inapplicable to federal Title VII actions. Slack v. Havens (9th Cir. 1975), 522 F.2d 1091, 1094. We hold that the Act does not violate either the United States or the Montana Constitution by providing for a hearing before the Human Rights Commission rather than providing for a trial by jury.

Finally, Romero argues that the 90-day time limit for filing a complaint in District Court after he received a right-to-sue letter should be tolled for the time taken by this appeal. For the purposes of this case only, we grant Romero’s request to toll the 90-day time limit imposed by the statute. Romero may therefore refile a com plaint in District Court.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES McDON OUGH, WEBER and HUNT concur.


author: MR. JUSTICE GULBRANDSON

text:
    In re the MARRIAGE OF SUSAN DRISCOLL JOHNSON, Petitioner and Respondent, and THOMAS JOHNSON, Respondent and Appellant.
    No. 89-139.
    Submitted on Briefs June 8, 1989.
    Decided July 11, 1989.
    777 P.2d 305.

      Brad L. Belke, Butte, for respondent and appellant.
    Mark A. Vucurovich, Henningsen, Purcell, Vucurovich and Richardson, Butte, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The father, Thomas Johnson, appeals from the final custody decree entered by the Second Judicial District Court, Silver Bow County. The court denied the father’s motion to modify the current joint custody arrangement so as to appoint him, instead of the mother, the primary physical custodian of their son. We affirm.

The following issues are presented on appeal:

1. Did the District Court err in failing to find that the best interest of the child required a modification of the present custody arrangement?

2. Did the District Court’s adoption of the petitioner’s Findings of Fact, Conclusions of Law and Final Decree indicate that the court failed to properly consider the facts or render its independent judgment on the matter?

The parties married October 23, 1978. A son was born to this marriage. When the marriage was dissolved on October 3, 1984, the court awarded each parent joint custody of their son. The custody arrangement provided that each parent would have physical custody of their son on alternating days.

In October of 1985, the mother filed a petition for modification of this alternating physical custody arrangement. The father filed a cross-petition for modification, requesting the court to grant him primary physical custody of their son. He alleged that the best interest of the child demanded such a modification because the mother did not provide proper nourishment or care for their son’s physical or educational needs. Following a hearing on the matter, the District Court granted the mother’s motion and awarded her primary physical custody of their son. Both parents retained joint legal custody of the child. The father generally was entitled to visitation every Tuesday and Thursday, every other weekend, and for one month in the summer. The court’s modification decree was issued after the court found that the mother provided proper care for their son and that the best interest of the child demanded a modification as the alternating physical custody schedule was confusing to the son. The court also had found that the daily contact between the parents because of this alternating custody schedule continued the father’s hostility toward the mother.

In July of 1988, the mother gave notice that she was moving to the State of Washington. Her reasons for moving included wanting to be closer to her family and desiring a better job with opportunities for future advancement. She left her son with the father for a few weeks in July while looking for a job and a home in Washington. She returned to Montana and began collecting her belongings in anticipation of her move with their son to Redmond, Washington, in August.

On August 3, 1988, the father filed a motion to modify the custody order so as to grant him primary custody and to prevent the mother from taking their son out of Montana. A few days later, the mother proceeded with her intended move, taking their son with her.

Hearings were not held until January 9, 1989, on the father’s modification motion, the father’s November 22, 1988 contempt motion, and the mother’s motion for child support. (The father had moved the court to order the mother in contempt of court because he alleged she had denied him his visitation rights.) Following hearing on the motions, the court denied the father’s modification motion. The court found that the son’s best interest would be served by retaining the mother as primary physical custodian. The father remained entitled to reasonable and open visitation with their son. The court also ordered the parties to negotiate child support obligations. The father appeals from this final custody decree.

The record in this case reveals that both parties are good parents who love their son and desire to have him with them. Both were able to share a comparatively equal amount of time with their son while they both lived in Butte, Montana. However, the parties now live over 400 miles apart, and therein lies the root of the problem giving rise to this appeal.

We note at the outset that a parent with joint custody of a child is entitled to change her residence, subject only to the power of the court “to restrain a removal which would prejudice the rights or welfare of the child.” Section 40-6-231, MCA. Absent such prejudice, a move by itself will not constitute grounds sufficient to enable the other parent to obtain a modification of the terms of a joint custody arrangement. See In re Marriage of Paradis (1984), 213 Mont. 177, 180, 689 P.2d 1263, 1265.

The father contends that the welfare of their son was prejudiced by the move and that the best interest of their son necessitated awarding the father primary physical custody because their son had already been integrated into the father’s family and into the Butte community and school. The father argues that such an award is necessary to prevent destruction of his son’s relationship with friends, family, school, and the community of Butte, a destruction threatened by the mother’s move out of the State.

The court did not find this integration argument persuasive as to the best interest of the child in this case, and neither do we. The father did not move to terminate the joint legal and physical custody. Rather, the father moved only to modify the joint custody provisions so as to provide him, and not the mother, with the primary physical custody of their son. The integration rationale found in § 40-4-219, MCA, which applies only to proceedings to terminate joint custody, therefore are not applicable to this case. See, e.g., In re Custody of A.L.S. (Mont. 1987), [229 Mont. 297,] 747 P.2d 192, 44 St.Rep. 1979; In re Marriage of Gahm (1986), 222 Mont. 300, 722 P.2d 1138. Moreover, the son has readily adjusted to and also become integrated into his extended family, school and community in Redmond, Washington. This integration of a child into the homes and community of both parents is the necessary outcome and goal of a joint custody arrangement; integration thus may not serve as a justification for a modification of the terms of a joint custody decree. See Paradis, 689 P.2d at 1265.

The record also fails to show any other factors, such as those listed in § 40-4-212, MCA, which would lead the court to determine that the son’s best interest would be served and preserved by giving primary physical custody of the child to the father. The father alleged that his son’s mental, moral and physical health was adversely affected by the mother’s drinking and frequenting of bars in the Redmond area. The court, however, held otherwise. We will not reverse the District Court’s findings unless they are clearly erroneous. As stated in Rule 52(a), M.R.Civ.P.:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

The evidence indicated that the mother did in fact go out with a friend and have a “couple of beers” once a week or so. However, the son was not left alone at such times. He stayed with his grandparents or his aunt and cousins. Further, the mother testified that she did not drink to excess. We therefore hold that the District Court’s finding that the mother was a caring and loving parent (Finding #13) was not clearly erroneous, and the court did not abuse its discretion in concluding that the father’s allegations were groundless (Conclusion #4) and that the mother’s primary physical custody remained in the best interest of the child.

The father’s second argument is that the District Court’s adoption of the mother’s proposed findings of fact and conclusions of law illustrated the court’s failure to use its independent judgment as is required by law. Further, the father argues that several of the findings issued by the District Court are not supported by the evidence.

This Court has previously stated that a district court may adopt one party’s proposed findings of fact. Kowis v. Kowis (1983), 202 Mont. 371, 379, 658 P.2d 1084, 1088. The court errs in adopting a party’s proposed findings only if the court does so “without proper consideration of the facts” and with a lack of independent judgment. In re Marriage of Callahan (Mont. 1988), [233 Mont. 465,] 762 P.2d 205, 209, 45 St.Rep. 1639, 1644. This Court will not overturn a district court’s findings and conclusions simply because they are based upon those submitted by counsel if:

“[the] findings and conclusions are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and are supported by the evidence.”

Kowis, 658 P.2d at 1088.

The record in the present case indicates that the court properly considered all the pertinent facts during a hearing conducted several weeks before the court issued its findings and conclusions. The court’s conclusion, that the best interest of the son entailed leaving him in the primary physical custody of his mother, was rendered after the judge himself questioned the child. The findings in this case are sufficiently comprehensive and pertinent to the issue raised by the father. Moreover, the findings, when viewed as a whole, are supported by existing evidence.

The father also argued that the court’s decision to award primary physical custody of their son to the mother denied him his right to joint custody. This argument would have been a proper subject for an appeal following the 1986 modification decree, which awarded the mother primary physical custody. This appeal, however, is only from the decree denying the father primary physical custody of his son, and as such, the argument is not only irrelevant to this appeal but actually counterproductive to the father’s contention that he should have been awarded primary physical custody. We therefore decline to address this argument.

The decision of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.


author: MR. JUSTICE WEBER

text:
    WILLIAM F. SHARKEY, Claimant and Appellant, v. ATLANTIC RICHFIELD COMPANY, operating as Anaconda Mineral Company a/k/a, The Anaconda Company, Defendant and Respondent.
    No. 87-366.
    Submitted on Briefs May 4, 1989.
    Decided July 13, 1989.
    777 P.2d 870.

      Gene B. Daly, Helena, for claimant and appellant.
    Andrew J. Utick, Helena, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the Workers’ Compensation Court, concluding that the claimant did not incur a new industrial injury in 1981 and that claimant is properly receiving permanent partial benefits according to rates applicable to a 1978 injury. From this order, the claimant appeals. We affirm.

The issues are:

1. Did the Workers’ Compensation Court err in concluding that the claimant did not sustain an industrial injury in 1981?

2. Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled on the basis of equitable estoppel?

3. Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled because the employer made payments in lieu of compensation?

4. Did the Workers’ Compensation Court err in concluding that the reduction in benefits was not unreasonable?

5. Did the Workers’ Compensation Court err in awarding attorney fees and costs pursuant to § 39-71-612, MCA (1978)?

Mr. William Sharkey suffered an industrial accident on September 10, 1978, while employed by the Atlantic Richfield Company (ARCO), when he fell from a ladder approximately twelve feet to the ground. His left arm hooked into the ladder as he fell, and he sustained injuries to his left shoulder. Mr. Sharkey was treated by Dr. Losee for this injury. This treatment included surgery on the shoulder in December of 1978. Mr. Sharkey returned to work for ARCO in May of 1979 with no physical restrictions.

ARCO accepted liability for this injury and paid temporary total disability benefits while Mr. Sharkey was unable to work. ARCO also paid medical expenses. In December of 1979 the parties negotiated a final settlement for this injury for the sum of $3,948.00, which represented 42 weeks of permanent partial disability benefits at the rate of $94.00 per week.

In late 1981, Mr. Sharkey began experiencing problems with his left shoulder again. He contends that these problems stemmed from a new work-related injury which occurred on December 16, 1981. Mr. Sharkey claims that on that date he was lifting the hood on a fuel truck when his left shoulder “gave out,” causing the hood to fall on him. He claims that his left shoulder was re-injured in this accident.

Mr. Sharkey testified that he reported the accident to his supervisor, Mr. Johnson, who made out a written report in Mr. Sharkey’s presence. Mr. Sharkey also testified that he told Mr. Bugni, ARCO’s Workers’ Compensation Coordinator, that he hurt his shoulder.

Also, in December of 1981, Mr. Sharkey obtained authorization to see Dr. Losee for his shoulder problem. This authorization was obtained from Ms. Nelson, a claims adjuster for the insurer, E.S.I.S., Inc. Dr. Losee referred Mr. Sharkey to Dr. Matsen at the University Hospital in Seattle, Washington, who performed surgery on Mr. Sharkey’s shoulder in March of 1982.

Ms. Nelson reopened Mr. Sharkey’s 1978 injury claim following the January 1982 examination by Dr. Losee. Beginning in February 1982 Mr. Sharkey began receiving Workers’ Compensation temporary total benefits at the same rate he had received for his 1978 injury. These benefits amounted to $188 per week and continued until they were reduced to permanent partial benefits of $94 per week, in February 1983. .

I

Did the Workers’ Compensation Court err in concluding that claimant did not sustain an industrial injury in December of 1981? [1] In reviewing a decision of the Workers’ Compensation Court, the standard of review is whether substantial credible evidence exists to support the findings and conclusions of the Workers’ Compensation Court. Stangler v. Anderson Meyers Drilling Co. (Mont. 1987), [229 Mont. 251,] 746 P.2d 99, 101, 44 St.Rep. 1944, 1947. Findings of fact are not clearly erroneous if they are supported by substantial credible evidence. Tenderholt v. Travel Lodge Intern. (1985), 218 Mont. 523, 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794.

Additionally, in Wight v. Hughes Livestock Co., Inc. (1981), [_ Mont._,] 634 P.2d 1189, 1191, 38 St.Rep. 1632, 1635, rev’d on other grounds, 204 Mont. 98, 664 P.2d 303 (1983), this Court stated:

“ ‘If the Workers’ Compensation Court’s findings are based on conflicting evidence . . . this Court’s function on review is confined to determining whether there is substantial evidence on the whole record supporting such findings.’ Harmon v. Deaconess Hospital (1981), Mont., [191 Mont. 285,] 623 P.2d 1372, 1374, 38 St.Rep. 65, 67-68, and cases cited therein.”

The Workers’ Compensation Court found that Mr. Sharkey did not sustain a new industrial injury on December 16, 1981. Although Mr. Sharkey claims that he injured his left shoulder when the hood fell on him in December of 1981, there is no evidence in the record from either written documents or oral testimony, to corroborate Mr. Sharkey’s assertion. At trial, aside from Mr. Sharkey’s assertion, the evidence indicated that the 1981 shoulder problem stemmed from the 1978 injury.

While Mr. Sharkey testified that he reported this injury to his supervisor, Mr. Johnson, who filled out a written report, Mr. Johnson did not testify at trial and no accident report was ever filed. Mr. Sharkey claims that he reported his shoulder injury to Mr. Bugni in person on the day of the accident. However, Mr. Sharkey could not remember if he told Mr. Bugni how he hurt his shoulder.

In testifying at trial, Mr. Bugni referred to notes he had taken during his conversation with Mr. Sharkey. According to those notes, the conversation occurred the day after the accident, and was over the telephone. Mr. Bugni testified that Mr. Sharkey did not mention a new accident or injury; rather, Mr. Sharkey told him he was having more problems with his shoulder from his previous 1978 injury.

There is no evidence indicating that Mr. Sharkey informed either Dr. Losee or Ms. Nelson of a new accident; instead, the evidence indicated that both Dr. Losee and Ms. Nelson understood that his 1981 shoulder problems had developed over a period of months. Dr. Losee, in his letter to Dr. Matsen, indicated that the shoulder problems had developed over a period of several months. He testified that he had no record or recollection that Mr. Sharkey informed him of a new injury to his shoulder. Ms. Nelson stated that she had no knowledge that Mr. Sharkey was claiming a new injury until 1985. Both Mr. Bugni and Ms. Nelson testified regarding the records which would have been made, had Mr. Sharkey reported a new and separate injury in 1981. Their files, however, contained no records to corroborate Mr. Sharkey’s claim.

Mr. Sharkey contends that ARCO has made a judicial admission in this case, admitting that Mr. Sharkey indeed sustained a new injury in 1981. It is true that at trial, ARCO also argued for a determination that Mr. Sharkey had sustained a work-related injury in 1981. Such a finding, combined with a determination that no notice was given of the injury, would have meant the statute of limitations had run for this claim, thereby preventing a recovery. In fact, the Workers’ Compensation Division might have been entitled to a reimbursement from Mr. Sharkey for benefits already paid.

The Workers’ Compensation Court properly considered the actual facts which were presented at trial through witnesses and exhibits. What ARCO may have contended is irrelevant to the factual determination made by the court. When the testimony is conflicting, it is the trial court which judges the credibility of the witnesses and this Court defers to that assessment. “Ordinarily, this Court will not substitute its judgment for that of the Workers’ Compensation Court in determining the weight and credibility to be given testimony.” Rule 52(a), M.R.Civ.P.; Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 146, 639 P.2d 1140, 1144. The court found the facts to compel a conclusion that Mr. Sharkey did not sustain a new injury in 1981.

Our review of the record demonstrates that there is substantial credible evidence to support the findings of the Workers’ Compensation Court. We conclude that the court was correct in determining that no new injury occurred in 1981. We affirm the holding of the Workers’ Compensation Court.

II

Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled on the basis of equitable estoppel?

The elements of equitable estoppel were enunciated in Lindblom v. Employers’ Liability Assur. Corp. (1930), 88 Mont. 488, 494, 295 P. 1007, 1009 as follows:

“Generally speaking, the following are the essential elements which must enter into and form a part of an equitable estoppel in all of its applications: T. There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention, or a least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. * * * 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.”

Mr. Sharkey contends that ARCO is equitably estopped from asserting the statute of limitations defense. He contends that the employer’s silence in not notifying Mr. Sharkey that he was being paid according to 1978 rates meets the first element of equitable estoppel. Our holding in the first issue, however, resolves this dispute. To constitute an estoppel, it would be necessary for ARCO to have knowledge or imputed knowledge of material facts entitling Mr. Sharkey to 1981 benefits. ARCO would then have to conceal these facts. As in Devlin v. Galusha, Higgins and Galusha (1982), 202 Mont. 134, 138-39, 655 P.2d 979, 981, neither the employer in the present case nor the insurer engaged in any conduct which would amount to a representation or concealment of a material fact. It was the claimant’s omission which brought about a failure to file a claim. This court has previously held that estoppel does not apply where the omissions of the party claiming estoppel caused the problem.

Additionally, the third element of estoppel, that the claimant was unaware of the truth, is questionable. Mr. Sharkey had previously been paid benefits based on his 1978 wages. These benefits were reinstated and were still based on the 1978 rates. Mr. Sharkey must be imputed with knowledge that his benefits should reflect the alleged 1981 date of injury. However, he accepted benefits based on the 1978 rates. Thus equitable estoppel is inapplicable because the first three elements are not met. We affirm the holding of the Workers’ Compensation Court in concluding that equitable estoppel does not apply.

Mr. Sharkey also contends that ARCO violated § 39-71-204, MCA (1978), by reinstating Mr. Sharkey’s 1978 benefits after a final settlement without obtaining a written order from the Workers’ Compensation Division, and without notifying the claimant in writing. This contention fails because § 39-71-204, MCA (1978), does not require that the Division approve in writing of the reopening of a claim, or that it notify the claimant in writing.

Ill

Did the Workers’ Compensation Court err in concluding that the statute of limitations should not be tolled because the employer made payments in lieu of compensation?

Mr. Sharkey contends that the payments he received through the reinstatement of 1978 benefits tolled the statute of limitations on filing a workers’ compensation claim. According to this theory, the statute may be tolled where an employer makes voluntary payments which are substantially comparable to or greater than benefits available through workers’ compensation. See generally 3 A. Larson, The Law of Workers’ Compensation § 78.43 (1987). The concern is that an employer may lull the claimant into a “false sense of security by apparently acknowledging the validity of his claim, paying remuneration in lieu of compensation, and then invoking the statute after the lapse of one year.” Frost v. Anaconda Co. (1982), 198 Mont. 216, 221, 645 P.2d 419, 422, citing Cupit v. Dancu Chemical Co. (Okla. 1957), 316 P.2d 593 at 595. In Frost we also stated that to toll the statute under this theory, the employer should have some knowledge of the effect of what he is doing. Frost, 645 P.2d at 423, quoting Buxbaum v. Cumberland Provision Co. (1961), 14 A.D.2d 425, 221 N.Y.S.2d 339, at page 342.

Claimant relies on Frost to support his contention but the cases are not comparable. In Frost, the employer paid compensation from an employee benefit plan, which was totally separate from workers’ compensation benefits. The payments were comparable to or greater than workers’ compensation benefits. This created a false sense of security in the employee, leading him to believe it was unnecessary to file a workers’ compensation claim.

In the present case the payments were clearly workers’ compensation disability benefits, and the amounts were based on 1978 rates. Neither the payments nor the conduct of the employer would mislead Mr. Sharkey into believing he did not need to file a claim for the alleged new injury. We conclude that the payments made to Mr. Sharkey did not toll the statute of limitations. We affirm the ruling of the Workers’ Compensation Court on this issue.

IV

Did the Workers’ Compensation Court err in concluding that a reduction in benefits to the claimant was not unreasonable?

In 1983, Ms. Nelson reduced Mr. Sharkey’s benefits from temporary total benefits of $188 per week to permanent partial benefits of $94 per week. Mr. Sharkey contends that this reduction was “unreasonable.” He further contends that if the reduction was unreasonable, he is entitled to an increased award pursuant to § 39-71-2907, MCA (1978), which provides for a 10% penalty when benefits are unreasonably refused or delayed.

Mr. Sharkey contends that the reduction was unreasonable, apparently because he was enrolled in a rehabilitation program through Social Rehabilitation Services with a goal of obtaining certification as a vo-tech teacher. Mr. Sharkey’s contention may be attributable to the fact that § 39-71-116(19), MCA, the statute defining temporary total benefits, was amended in 1985 to state that temporary total benefits were appropriate during a period of retraining. However, this amendment was not in effect when Mr. Sharkey was injured, and we have previously stated that the statute in effect on the date of injury controls. Homme v. Rauenhorst (Mont. 1987), [227 Mont. 495,] 740 P.2d 1110, 1113, 44 St.Rep. 1261, 1265. We also point out that this amendment has subsequently been deleted. Thus, the Workers’ Compensation Court is not obligated to reach a finding of total disability simply because the claimant is in a retraining program. Homme, 740 P. 2d at 1113; Phillips v. Spectrum Enterprises (Mont. 1986), [224 Mont. 407,] 730 P.2d 1131, 1135, 43 St.Rep. 2288, 2292.

Temporary total disability is defined in § 39-71-116(19), MCA (1978), as follows:

“ ‘Temporary total disability’ means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit.”

Permanent partial disability is defined in § 39-71-116(12), MCA (1978), as follows:

“ ‘permanent partial disability’ means a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured workman is as far restored as the permanent character of the injuries will permit.”

Additionally, in Anderson v. Carlsons Transport (1978), 178 Mont. 290, 294, 583 P.2d 440, 442, we stated:

“ ‘[Temporary total disability ceases when the workman’s physical condition is as far restored as the permanent character of the injuries will permit. When the claimant has reached this stage in his healing process temporary total disability ceases, and partial disability begins if there is permanent partial impairment.’ (Quoting McAlear v. McKee (1976), 171 Mont. 462, 558 P.2d 1134, 1137, 33 St.Rep. 1337, 1340.)”

At trial, Ms. Nelson testified that she made the decision to reduce Mr. Sharkey’s benefits to permanent partial based on a medical report and a Work Capacity form from Dr. Losee, a medical report from Dr. Baggenstos, and rehabilitation reports. These reports indicated that Mr. Sharkey was medically stable and that there was work available for him. A review of the record demonstrates that claimant was as far restored as the permanent character of his injuries would permit. The record also demonstrates that work was available which Mr. Sharkey could perform. This evidence fulfills the definitional requirements of permanent partial disability and indicates that the change was properly made. See, McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 470, 475, 679 P.2d 1188, 1191. Mr. Sharkey cannot properly contend that permanent partial benefits are not appropriate merely because he was involved in a rehabilitation program.

To prevail under § 39-71-2907, MCA (1981), the claimant must show unreasonableness. Paulson v. Bozeman Deaconess Foundation Hosp. (1984), 207 Mont. 440, 444, 673 P.2d 1281, 1283. Additionally, whether the insurer’s conduct was unreasonable is a factual question and this ruling by the Workers’ Compensation Court will not be overturned if supported by substantial credible evidence. Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242. The Workers’ Compensation Court determined that the reduction was not unreasonable and we conclude that there is substantial credible evidence to support that determination. We therefore affirm this ruling.

V

Did the District Court err in awarding attorney fees and costs pursuant to § 39-71-612, MCA (1978)?

The Workers’ Compensation Court allowed attorney fees and costs pursuant to § 39-71-612, MCA (1978), which allows fees when the amount of benefits is in controversy. Mr. Sharkey contends that attorney fees and costs should have been allowed pursuant to § 39-71-611, MCA (1978), which allows fees when benefits are denied or terminated.

The record demonstrates that the Workers’ Compensation Fund paid temporary total benefits of $188 per week until February of 1983, at which time the award was reduced to permanent partial benefits of $94 per week. As a result, it is clear that attorney fees cannot be awarded under § 39-71-611, MCA (1978), which applies only where benefits are denied or terminated. Mr. Sharkey was awarded 500 weeks of permanent partial benefits by the Workers’ Compensation Court. The Division had argued for an award of only 280 weeks of permanent partial, or in the alternative, for no benefits based on a statute of limitations defense. Clearly the amount of benefits was in controversy, and Mr. Sharkey received an award in excess of what the Division offered. We therefore conclude that attorney fees and costs were properly awarded pursuant to § 39-71-612, MCA (1978).

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT, GULBRANDSON and McDONOUGH concur.


author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

text:
    DAVID SCIUCHETTI, Claimant and Appellant, v. HURT CONSTRUCTION & Boland Construction, and State Compensation Insurance Fund, Defendants and Respondents.
    No. 88-455.
    Submitted on Briefs May 11, 1989.
    Decided July 14, 1989.
    777 P.2d 308.

      R.V. Bottomly, Bottomly Law Office, Great Falls, for claimant and appellant.
    Marc Racicot, Atty. Gen., Helena, Matthew F. Heffron, Asst. Atty. Gen., for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Claimant appeals the decision of the Workers’ Compensation Court awarding him disability benefits for a knee injury for the statutory maximum of 200 weeks. Claimant contends that he should have received 500 weeks of benefits at a minimum because his disability is attributable to his back in addition to his knee. Claimant also appeals from a subsequent order of the Workers’ Compensation Court regarding attorney fees. We affirm the lower court’s decision as to both disability benefits and attorney fees.

The issues are:

1. Did the lower court err in concluding that claimant has no impairment or disability of his back?

2. Did the lower court err in its determination of attorney fees?

3. Did the lower court err in denying a lump sum award of attorney fees for future benefits?

Claimant was 35 years old at the time of trial and was employed as a heavy duty construction worker when he suffered two industrial injuries which culminated in his disability. The first injury occurred on November 19, 1983, while claimant was employed by Hurt Construction earning $11.30 an hour. While carrying a wall weighing approximately 250-300 pounds, claimant tripped and fell, causing the wall to strike his right knee. Under the weight of the wall, claimant testified that he wrenched both his knee and his back.

Claimant went to the emergency room where he was treated by Dr. Adelman, who diagnosed acute low back syndrome. The claimant was next examined on March 21, 1984, by Dr. Avery, an orthopedic surgeon. Dr. Avery diagnosed the injury as a (1) probable tear medial meniscus right knee and a (2) recurrent thoracolumbar strain. He recommended that the claimant undergo knee surgery, although claimant testified that he resisted surgery at that time. Dr. Avery also examined claimant’s back and found not only that the X-rays were normal, but also that his back had full range of motion. No treatment was prescribed. Claimant testified that he just “put up with the pain.” In interpreting Dr. Avery’s diagnosis, another orthopedic surgeon, Dr. Bloemendaal, described “recurrent thoracolumbar strain” as a “weakness that throws his back into spasm. It’s something in that particular area that is very difficult to demonstrate by anything other than examination when they’re in the acute phase. For example, X-rays of that area are normal, and that has been the case with Mr. Sciuchetti. He probably has a weak point up there. When he overdoes things, he gets muscle spasm.”

Following the 1983 injury, claimant decided to continue working in the construction field. The Workers’ Compensation Court found that he did not see another doctor until he suffered his second industrial injury on August 13, 1984, while working for Boland Construction. This injury resulted in a broken right ankle and aggravation of the right knee. While the ankle was healing, claimant’s treating physician, Dr. Bloemendaal, suggested that claimant undergo surgery on his knee. On November 27,1984, the medial meniscus of claimant’s right knee was removed.

At the time he sought treatment for the second injury, claimant testified that he did not mention his back problems to Dr. Bloemendaal, nor did he state it as an injury on his claim for compensation. Regarding the connection between the 1984 injury and claimant’s back condition, the Worker’s Compensation Court found that “(a) dispute exists as to whether or not the second injury also aggravated the claimant’s back.”

Following the second injury, claimant received temporary total disability benefits of $277.00 per week from August 14,1984 to January 7,1985 for the ankle injury. After January 7,1985, claimant received his maximum total disability rate of $286.00 per week for his injured knee. Claimant has not been regularly employed since the second injury. In July of 1985, he filed a cause of action with the Workers’ Compensation Court to determine the nature and extent of his injuries, whether he was receiving the correct temporary total disability rate, whether he was entitled to a lump sum or an increased award as a penalty, and attorney fees. The Workers’ Compensation Court concluded that claimant had reached maximum healing of his ankle with no impairment or disability, and that his back had reached maximum healing in November of 1985 with no impairment or disability. The court also concluded that claimant’s right knee had reached maximum healing on December 1, 1985, with a maximum seven percent impairment based on the testimony of Dr. Bloemendaal, and that as a result of the knee injury claimant could not return to his former employment as a heavy construction worker. The court determined that claimant was totally disabled pending completion of retraining, and ruled that if claimant failed to enter retraining, he would be determined permanently partially disabled. These determinations were based solely upon the injury to claimant’s knee, with none of the disability premised upon the claimant’s back problems.

Pursuant to § 39-71-703, MCA (1983), the court calculated claimant’s permanent partial disability benefit rate to be $143.00 per week for the maximum 200 weeks for a knee injury, thereby totaling $28,600. The court disallowed any lump sum payment or a 20 percent penalty, but did allow reasonable costs and attorney fees.

On appeal, claimant challenges the sufficiency of the benefits awarded, alleging that it was error for the court to limit a finding of disability to his knee. Claimant also challenges the court’s subsequent award of attorney fees.

I.

Did the lower court err in concluding that claimant suffered no impairment or disability to his back?

After reviewing the deposition testimony of four medical experts, the Workers’ Compensation Court made findings thereon and concluded that claimant’s disability was limited to his right knee as a result of the two industrial injuries. Claimant argues that, in reaching this conclusion, the lower court considered only the medical testimony relating to “impairment,” and completely ignored the medical testimony relating to back “disability.” He contends that without findings relating to back disability, the lower court erred in attributing disability solely to claimant’s right knee, and he should be entitled to 500 weeks of benefits.

We note that impairment is but one factor of disability, and both terms are defined under the 1983 Workers’ Compensation Act as follows:

“39-71-121. Disability defined. A worker is disabled when his ability to engage in gainful employment is diminished as a result of impairment, which in turn may be combined with such factors as the worker’s physical condition, age, education, work history, and other factors affecting the worker’s ability to engage in gainful employment. Disability is not a purely medical condition. Disability may be temporary total, permanent total, or permanent partial as defined in 39-71-116.
“39-71-122. Impairment defined. Impairment means any anatomic or functional abnormality or loss of bodily function. Impairment refers to functional use of the body and is a purely medical condition. Permanent impairment is any anatomic or functional abnormality or loss of bodily function after the maximum medical rehabilitation has been achieved. The anatomic or functional abnormality or loss must be considered stable by the physician at the time the impairment rating evaluation is made. An impairment rating is purely a medical determination. Impairment may or may not result in disability.”

In reviewing the lower court’s determination of disability, this Court must determine whether sufficient evidence exists to support that conclusion. Linton v. City of Great Falls (Mont. 1988), [230 Mont. 122,] 749 P.2d 55, 61, 45 St.Rep. 68, 74. Claimant points out that because all of the medical testimony in this case was by deposition, this Court is in as good a position as the Workers’ Compensation Court to judge the weight to be given that testimony, citing Snyder v. San Francisco Feed & Grain (Mont. 1987), [230 Mont. 16,] 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. While that standard of review is correct, this Court will nevertheless uphold the lower court if there is substantial credible evidence to support its conclusion. We note that in Snyder, the conclusion of the Workers’ Compensation Court was found to be “in stark contrast with the evidence presented at trial,” and the case was reversed. 748 P.2d at 929.

In this case, the relevant findings made by the lower court regarding the medical evidence presented on claimant’s back disability and impairment are as follows:

“9. The claimant was working for Hurt Construction when he injured his right knee and low back on November 29,1983. He went to the emergency room and was treated by Dr. Adelman, who diagnosed the claimant as having acute low back syndrome.
“10. The claimant was next examined by Dr. Avery on March 21, 1984. He found that his back X-rays were normal and that the claimant’s back had full range of motion. He did not prescribe any treatment for the claimant’s back at that time.
“12. The claimant did not see another doctor until he suffered his second industrial injury when he fractured his right ankle while working for Boland Construction on August 13, 1984. The claimant did not mention a back problem to his treating physician Dr. Bloemendaal, nor did he state it as an injury on his claim for compensation. It was not mentioned in his claim for compensation. (Exhibit 3 at 2) or the Employer’s First Report.
“14. It is agreed by all medical experts that the claimant’s back reached maximum medical healing in November of 1985.
“15. Claimant’s treating physician, Dr. Bloemendaal, testified that he did not treat the claimant’s back and found no back impairment. Dr. Schutte testified that the claimant’s back last “went out” in 1984, but there was no back impairment in January, 1986. Dr. Hinde reported that there had been no progression in the back pain and that it was stable, so he did not address the issue.
“25. The claimant has no impairment of the back.”

Having reviewed the record, we conclude that these findings accurately reflect the medical testimony presented and are not clearly erroneous. Tenderholt v. Travel Lodge Intern. (1985), 218 Mont. 523, 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794. However, claimant contends that these findings are inadequate based upon additional medical evidence which he claims clearly establishes that his back bars him from laboring activities. In essence, claimant requests that this Court make additional findings regarding disability which are not confined to “impairment.” Claimant refers us to several statements made by the medical experts which he contends the lower court overlooked in reaching its conclusion.

First, claimant contends that although his treating physician, Dr. Bloemendaal, rendered a conclusory opinion of no back impairment, the fact that he prescribed drugs for back pain over a considerable period of time is evidence of back disability. The record indicates that it was the claimant who stated that he was given muscle relaxants by Dr. Bloemendaal. The doctor himself, however, testified that he did not recall ever prescribing anything to the claimant for his back. He further testified that he did not recall ever treating claimant’s back in any manner. Claimant’s assertion on this point is therefore not supported by the record.

Claimant also contends that Dr. Bloemendaal’s testimony establishes that claimant is unable to work in heavy construction because of his back condition. The record indicates that Dr. Bloemendaal did not attribute the upper back problems to either of the accidents involved in this action, nor did he testify that claimant could not perform heavy construction work because of his back. Given this lack of conclusive evidence, we hold that the Workers’ Compensation Court did not err in its refusal to find that claimant cannot work in construction because of his back.

Next, our attention is directed to the testimony of Dr. Hinde, a physiatrist who examined the claimant at the request of claimant’s counsel in November, 1985. Claimant argues that Dr. Hinde’s testimony establishes objective manifestations of pain and loss of motion in his back, thereby justifying a finding and conclusion of back disability. The doctor’s notes state that:

“I did document some mild limitation of internal and external rotation of the shoulders, and that these maneuvers did produce mild discomfort in the area of the mid-thoracic spine at the level of T6, T7. He also reported some tenderness to my palpation of the paraspinal structures in this location.”

Claimant told Dr. Hinde that his back problems stemmed from an injury which occurred in 1976 while lifting some heavy pipes. Dr. Hinde did not attribute the back condition to either of the accidents involved in this action. He testified that the scope of his examination was limited to “any disability which still related to injuries to his right knee and right ankle,” and he did not attempt to tie the claimant’s back problems to any specific injury. When considered with the whole of Dr. Hinde’s testimony, we conclude that his notes indicating mild discomfort and mild limitation of rotation do not mandate a finding of pain and loss of motion to claimant’s back, and that the lower court did not err in failing to make such a finding. Instead, the court’s finding there was no loss of motion reflects the testimony of Dr. Bloemendaal. When the Workers’ Compensation Court’s findings are based on conflicting evidence, this Court’s review is confined to determining whether there is substantial evidence on the whole record to support those findings. Wight v. Hughes Livestock Co., Inc. (Mont. 1981), [_Mont._,] 634 P.2d 1189, 1192, 38 St.Rep. 1632, 1635. Having reviewed the record, we hold that a finding there was no loss of motion is supported by the evidence.

Next, claimant asks that we reassess the testimony of Dr. Schutte, a specialist in sports trauma, who reviewed the medical records of Dr. Adelman, Dr. Avery, and Dr. Bloemendaal and rendered an opinion that claimant had no back impairment in January of 1986. Dr. Schutte testified that, “According to my records, the patient told me that his upper back continues to go out and that his back has been on and off in the interim.” Claimant contends that it was error for the Workers’ Compensation Court not to make a finding reflecting this testimony which would form a basis for a conclusion of back disability. Given the whole of Dr. Schutte’s testimony and the other medical evidence, we conclude that the lower court did not err in its findings. Dr. Schutte examined claimant’s back and found that it was within the normal range of flexion, extension, and lateral bending. He also took X-rays of his thoracic spine and found them to be normal. As with the three other medical experts, Dr. Schutte did not attribute claimant’s upper back problems to either of the industrial accidents involved in this action. We hold that the lower court did not err in its findings.

Finally, the claimant directs our attention to the deposition testimony of Dr. Pardis, a chiropractor who examined him in December of 1985 at the request of claimant’s counsel. Dr. Pardis was asked to evaluate the current condition of the upper back based upon his 1985 examination of claimant and additional medical records compiled in 1978 when he treated claimant’s back for a separate incident of injury. The claimant argues that, based on Dr. Pardis’ testimony, the lower court should have found that he was required to leave the construction field because of his back. While Dr. Pardis’ testimony establishes that heavy construction is not advisable given claimant’s back condition, the back condition was not connected to any specific injury, let alone the two industrial accidents involved here. When asked to make the connection between the back complaints and the injuries, Dr. Pardis responded that “there’s no way of tying it to a specific accident,” and stated that different conditions such as spinal cord lesions, tumors, fractures, or dislocations could also mimic the symptoms of which claimant complained. We conclude that the lower court did not err in refusing to find that claimant was forced to leave construction due to his 1983 or 1984 industrial accidents.

Having reviewed the overall record, we conclude that claimant is attempting to have this Court substitute its judgment for that of the lower court based on isolated passages of testimony when, in fact, the lower court’s findings are supported by the record and do not indicate that any testimony was overlooked or ignored. We conclude that the lower court’s conclusion is not in stark contrast to the evidence presented at trial, as was the case in Snyder. We hold that the lower court adequately considered both “impairment” and “disability” in reaching its conclusion, and that there are no grounds for modifying the findings or conclusions reached in this case.

II.

Did the lower court err in its determination of attorney fees?

In a subsequent hearing to determine reasonable attorney fees, the parties disputed whether fees should be paid on benefits received after claimant reached maximum medical healing, until the date he entered retraining pursuant to the court’s order finding him permanently and totally disabled. The period in question runs from November 26, 1985 to November of 1987, during which time claimant received temporary total disability benefits.

The Workers’ Compensation Court disallowed attorney fees for that period based on McKinley v. American Dental Mfg. Co. (Mont. 1988), [232 Mont. 92,] 754 P.2d 831, 45 St.Rep. 892. In that case, this Court stated that there are two conditions to an award of attorney fees under § 39-71-612, MCA (1983), which is the applicable statute in the present case: (1) the amount of compensation must be in controversy, and (2) the amount awarded must exceed the amount paid or tendered, citing Lasar v. Oftedal & Sons (1986), 222 Mont. 251, 721 P.2d 352, 43 St.Rep. 1938. Because claimant in this case was awarded the same amount of temporary total disability benefits as the State Fund was already paying, the Workers’ Compensation Court determined that he was not entitled to attorney fees from November 26, 1985 to November of 1987.

On appeal, claimant argues that this determination was in error because payment of benefits during that time (1) was a fact in controversy and were secured by the efforts of counsel, and (2) was not voluntary or unconditional because the State Fund fully expected to recoup any excess total disability payments had claimant been declared permanently partially disabled at the hearing. Claimant argues that these contentions form a basis for attorney fees not only under § 39-71-612, MCA (1983), but under § 39-71-611, MCA (1983), as well because of defendant’s denial of liability for payment of any benefits after November of 1985.

Section 39-71-611, MCA (1983), only applies “[i]n the event an insurer denies liability for a claim for compensation or terminates compensation benefits.” Here, the Workers’ Compensation Court found as an uncontested fact that “defendant accepted liability for claimant’s injury and has paid weekly temporary total disability benefits to date.” Therefore, § 39-71-611, MCA (1983), is inapplicable.

Secondly, claimant’s contention that payments were not voluntary or unconditional based on how the State Fund might have proceeded is pure conjecture and is not supported by the record. We hold that the Workers’ Compensation Court did not err in determining that claimant was not entitled to attorney fees for the period from November, 1985 to November, 1987.

III.

Did the lower court err in denying a lump sum award of attorney fees for future benefits?

The Workers’ Compensation Court determined that lump sum attorney fees would be awarded on the permanent partial disability payments which were to be granted after claimant had completed his retraining period. However, the court held that lump sum attorney fees would not be awarded based on the total disability benefits paid out to claimant during his retraining program. The court based its determination on a finding that:

“[I]t is questionable as to whether claimant will successfully complete the entire four years of his program. The Court draws this conclusion from the fact that claimant expressed little enthusiasm at the time of trial for the four-year computer science course. Therefore, claimant’s counsel is entitled to 33 percent of all past paid total disability benefits in a lump sum but, thereafter, claimant’s counsel is to receive his fee payment biweekly.”

This Court has held that a denial of lump sum attorney fees for future benefits which may never accrue is not an abuse of the lower court’s discretion. Swan v. Sletten Construction Co. (1986), 223 Mont. 477, 726 P.2d 1170, 1172, 43 St.Rep. 1926, 1929. Despite this authority, claimant argues that a lump sum award is not precluded if it is warranted by the facts. He argues that the following facts distinguish this case from Swan and render the lower court’s denial of lump sum attorney fees an abuse of discretion:

“(1) Claimant is in perfect health and is likely to live out his life expectancy;
“(3) The fee agreement (drafted prior to Swan) reflects the traditional expectations that lawyers will receive their contingent fees in a single lump sum;
“(4) Denying lump sum fees in a case like the present case will discourage attorneys from representing needy claimants and will thereby frustrate the public policy of compensating injured workers.”

Despite these contentions, we hold that the Workers’ Compensation Court’s denial of lump sum fees was not an abuse of discretion. The reason for the court’s denial was specifically stated in its order, and was based upon the court’s observance of the character and demeanor of the claimant. The court reasoned that if claimant discontinued his training course, the remainder of the temporary total benefits for which claimant now requests a lump sum of attorney fees might never accrue. Such a determination is not an abuse of discretion.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and SHEEHY concur.

MR. JUSTICE HUNT,

dissenting:

I dissent. I would reverse the Workers’ Compensation Court and award the claimant disability for the injury to his back.