author: MR. JUSTICE HARRISON

text:
    GLORIA RIGHTNOUR, Claimant and Respondent, v. KARE-MOR, INC., Employer, and INTERMOUNTAIN INSURANCE COMPANY, Defendant and Appellant.
    No. 86-295.
    Submitted on Briefs Dec. 11, 1986.
    Decided Jan. 20, 1987.
    Rehearing Denied Feb. 19, 1987.
    732 P.2d 829.
    Garlington, Lohn & Robinson, Larry W. Jones, Missoula, for defendant and appellant.

      David L. Holland, Butte, for claimant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the Montana Workers’ Compensation Court granting summary judgment to plaintiff/claimant and denying defendant/appellant’s motion for summary judgment. Claimant sustained a compensable injury in January, 1982. The settlement agreement included reservation of medical benefits. Following surgery performed in March, 1985, claimant was awarded medical benefits as benefits reserved. We affirm.

The claimant suffered a low back injury arising out of and in the course of her employment, January 19, 1982. Her employer, Kare-Mor, Inc., of Butte, Montana, was enrolled under compensation plan number II of the Workers’ Compensation Act. Insurer was Inter-mountain Insurance Company (appellant). The employer and appellant accepted liability for the claimant’s injury and paid weekly temporary total disability benefits pursuant to Section 39-71-701, MCA.

A lumbar laminectomy on a herniated disk at the L4-L5 level was performed September 30, 1982, by Dr. James P. Murphy. Dr. Murphy performed a second surgery in the same area March 30, 1983, to relieve nerve root compression and to remove loose fragments. Dr. Murphy testified in a deposition that claimant’s healing period had ended and she had reached maximum healing November 22, 1983. A final settlement was negotiated and approved January 20,1984, with the claimant reserving medical benefits.

In March, 1984, the claimant was caring for children in her home when she went outside to retrieve a child because of the cold. Her dog moved in front of the steps and she tripped on his chain and fell. Dr. Paul Giacomini made a house call to examine the claimant. She could not move her left leg because of severe pain and had muscle spasm in the lumbar region. He prescribed a muscle relaxant. The doctor’s examination notes of September, 1984, indicate he believed her tripping and falling caused the pain in her leg, which was becoming progressively more severe.

The claimant was examined by Dr. Murphy in March, 1985. A lumbar myelogram indicated subluxation, the movement of one vertebrae over another. He performed surgery to fuse the L-4 to the sacrum because of the subluxation. This third surgery was not to repair a defect in the prior surgery. The appellant denied liability for payment to claimant of disability and medical benefits under the Workers’ Compensation Act.

Both parties deposed Drs. Murphy and Giacomini. Appellant then moved the court for summary judgment on the ground the injury for which claimant was seeking medical and disability benefits did not arise out of and in the course of her employment. In turn, claimant filed a motion for summary judgment, arguing the injury did arise out of and in the course of her employment. The Workers’ Compensation Court adopted the hearing examiner’s findings of fact, conclusions of law and proposed judgment ordering appellant to pay claimant’s medical benefits as the medical benefits reserved by the claimant relating to her compensable injury of January, 1982. Appellant filed a motion for a new trial, or in the alternative asked the court to amend its order to conform to the findings. The motion was denied and this appeal was filed.

The facts are not in dispute, leaving only a question of law to be resolved by this Court. Solich v. Hale (1967), 150 Mont. 358, 361, 435 P.2d 883, 885; Section 25-7-102, MCA.

“If [the question on appeal] is a question of law, . . . our scope of review is not so limited [as when reviewing a question of fact]. In such a case, the appropriate standard of review is simply whether the lower court’s interpretation of the law is correct. We are not bound by the lower court’s conclusion and remain free to reach our own.”

Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 912, 42 St.Rep. 388, 391.

Liability is limited statutorily to those injuries sustained arising out of and in the course of the claimant’s employment.

“Every insurer is liable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment ...”

Section 39-71-407, MCA.

The essential element to be proved by a claimant is a direct relationship between the claimant’s employment and the injury. Schwartzkopf v. Industrial Accident Board (1967), 149 Mont. 488, 493, 428 P.2d 468, 470. That is, a subsequent injury is compensable if it is the direct and natural result of a compensable primary injury, and not the result of an independent intervening cause attributable to the claimant’s own intentional conduct. See Breen v. Industrial Accident Board (1968), 150 Mont. 463, 436 P.2d 701. When a subsequent injury is compensable, the claimant is entitled to receive those benefits which are payable because of medical treatment necessitated by the original injury pursuant to Section 39-71-407, MCA, and Section 39-71-704, MCA, including any medical benefits reserved.

Dr. Giacomini testified the fall aggravated her preexisting weakened back condition. When asked if the subluxation that precipitated the third surgery was a result of the fall in 1984, Dr. Giacomini answered “. . . the fall of 1984 could have caused the subluxation because the previous operation [s] had weakened her spine.” He testified:

“[F]rom the time she lifted the patient in the nursing home and injured herself to the time she had surgery this last time is just one continuous line that might have direct ties or indirect ties. But it is the same injury.”

Dr. Murphy testified it was “probable the first incident requiring not one, but two surgeries, can be extrapolated back to her original injury.” He said the fall could have aggravated the original injury.

The need for two surgeries as a result of the original injury is undisputed. Nor is there dispute the claimant now has a weakened lower back. The Workers’ Compensation Court concluded

“[t]he claimant has proven to a reasonable degree of medical certainty that the original compensable injury of January 19, 1982 and the two subsequent surgeries weakened her back, and combined with the fall in her home in March, 1984, resulted in a third surgery being required. Such surgery and other medical bills related to that fall are the natural consequence of the original injury.”

The claimant has shown by medical testimony a causal connection between her injury of January, 1982, and the surgery performed in March, 1985. Thus we affirm the order of the Workers’ Compensation Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY, WEBER, GULBRANDSON and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY, MR. JUSTICE HUNT,

license: Public Domain

text:
    JANICE PAULSEN, Claimant and Appellant, v. BONANZA STEAK HOUSE, Employer, and Crawford and Company, Defendant and Respondent.
    No. 86-324.
    Submitted on Briefs Oct. 23, 1986.
    Decided Jan. 27, 1987.
    733 P.2d 335.

      Kelleher Law Office, Robert L. Kelleher, Jr., Billings, for claimant and appellant.
    Crowley Law Firm, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Robert L. Kelleher, Jr., claimant’s attorney, appeals a Workers’ Compensation Court order awarding him attorney fees of $3,318.50.

The issue on appeal is whether the attorney fee was properly calculated by the Workers’ Compensation Court.

We affirm.

The claimant was injured in June, 1983, while employed at the Bonanza Steak House in Billings, Montana. Bonanza’s insurance carrier, Crawford & Company, (hereinafter insurance company) accepted liability, paying both medical expenses and temporary total disability benefits from June, 1983 through October, 1983. The Workers’ Compensation Court extended claimant’s temporary total disability status to October 18, 1984, for a total award of $3,434.65, and ordered claimant to submit her proposed order for the awarding of attorney fees and costs. Claimant’s attorney documented 54.55 hours of work at an hourly rate of $125, bringing the total fee to $6,818.75. Claimant submitted costs of $1,080.55. It should be mentioned that claimant and her attorney entered into a contingency fee agreement in May, 1984, whereby the attorney would receive 33% of any award made by the Workers’ Compensation Court. The insurance company objected to the proposed order awarding attorney fees and both parties filed briefs. On May 23, 1986, the Workers’ Compensation Court ordered the insurance company to pay claimant $3,318.50 in attorney fees based on an hourly rate of $70, and costs of $1,080.55. Claimant’s petition for reconsideration of the attorney fee award was denied.

Section 39-71-614, MCA, explains how attorney fees in workers’ compensation cases are determined:

“(1) The amount of an attorney’s fee assessed against an employer or insurer under 39-71-611 or 39-71-612 must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought before the workers’ compensation judge. The judge shall determine a reasonable attorney fee and assess costs. He is not bound by the documentation submitted to him. The hourly fee the judge applies to the time spent must be based on the attorney’s customary and current hourly fee for legal work performed in this state.
“(2) This section does not restrict a claimant and an attorney from entering into a contingency fee arrangement under which the attorney receives a percentage of the amount of compensation payments received by the claimant because of the efforts of the attorney. However, an amount equal to any fee and costs assessed against an employer or insurer under 39-71-611 or 39-71-612 and this section must be deducted from the fee an attorney is entitled to from the claimant under a contingency fee arrangement.”

Attorney Norman Grosfield of Helena authored the bill that subsequently became Section 39-71-614, MCA. Grosfield primarily practices in the workers’ compensation field and was chief legal counsel and then administrator of the Workers’ Compensation Division from 1975-79. During his tenure as administrator, Grosfield was directly involved in the assessment of attorney fees against insurance carriers. Assessments at that time were made on an hourly basis and were in line with what the Division thought was the customary fee charged by the legal profession in the state of Montana. Grosfield testified that the bill was aimed at addressing this Court’s decision in Wight v. Hughes Livestock Co., Inc. (Mont. 1983), [204 Mont. 98.] 664 P.2d 303, 40 St.Rep. 696. In Wight, attorney fees were assessed against an insurance carrier based on the time incurred by the claimant’s attorney and a proper hourly amount as determined by the Workers’ Compensation Court. We found that the procedure used by the Workers’ Compensation Court was improper and held that the court should base the assessment of attorney fees on the contingency fee contract between the claimant and his attorney. Grosfield’s intent was to reinstate the procedure employed prior to Wight in an effort to hold down the costs of workers’ compensation and to prevent a severe backlash by the legislature.

As to the hourly fee to be applied, Subsection (1) of Section 39-71-614, MCA, says that “The hourly fee the judge applies to the time spent must be based on the attorney’s customary and current hourly fee for legal work performed in this state.” Grosfield testified that the statute granted the workers’ compensation judge an opportunity to calculate the appropriate hourly amount based on the judge’s knowledge of the charging of legal fees in the state of Montana. Grosfield’s remark is not an accurate reflection of the final version of the statute. The fee is to be based on what the individual attorney has established as his customary and current hourly fee, not on what is recognized as a reasonable hourly fee by lawyers in the state of Montana. We adopted this view in Gullett v. Stanley Structures (Mont. 1986), [222 Mont. 365,] 722 P.2d 619, 43 St.Rep. 1335.

As expected, Grosfield encountered several questions about the bill’s effect. We refer to Grosfield’s deposition testimony.

“Q. The third question raised was whether the bill would prevent a claimant’s attorney from obtaining a windfall fee in cases involving large amounts of money. What prompted you to raise and address that question?
“A. My concern was that Workers’ Compensation cases can, anymore, involve substantial amounts of money; and with larger and larger awards, if the Wight decision continued in effect it would amount to larger and larger assessments of attorney fees against insurance carriers, which would have the ultimate effect of substantially increasing the costs to the employer in the State of Montana, which costs are rising in my opinion, inordinately. That was the primary intent of the bill, to prevent the substantial assessments of attorney fees against insurance carriers in the larger cases.
“Q. Does the bill prevent a claimant’s attorney in such cases from collecting a contingency fee?
“A. No.
“Q. Why is that?
“A. The bill specifically provides that a claimant’s attorney may charge a fee based on the contingency contract, but any amount awarded or assessed against an insurance carrier shall be deducted from the total attorney fee that is received by the attorney.
“Q. The fourth question that you raised and addressed is whether the bill would assist claimants involving small amounts of disputed monies. Why, again, did you raise and address that question?
“A. There are situations in which there are relatively minor amounts of money involved; and in fact the particular case before the Court, I would consider that particular case involving a relatively small amount of money. But there are situations where insurance carriers refuse to pay the small amount in medical costs, etc.; and if one were to strictly apply the Wight case, it would have the reverse effect in assisting claimants in receiving proper representation. There are appropriate situations where I can see the award of attorney fees against an insurance company could even be larger than what the actual recovery was, and I’ve had situations like that. So in granting an attorney fee based on an hourly amount, it encourages attorneys to take those issues before the Court if they know that they are going to get something other than the contingency fee amount if they are successful. (Emphasis added.)”

In this case, claimant’s attorney, Robert Kelleher, Jr., failed to establish that his customary and current hourly fee was $125. Kelleher testified that he set the $125 hourly fee in direct response to the enactment of Section 39-71-614, MCA. In the absence of a standard by which to set Kelleher’s fee under the statute, the Workers’ Compensation Judge concluded that a $70 hourly fee was appropriate: “The $70 per hour figure yields an attorney fee in this case of $3,318.50 ($70 times 54.55 hours). This amount is roughly three times greater than what claimant’s counsel could have expected to earn under a contingency fee agreement. Under a contingency award, claimant’s counsel would have earned $20.78 per hour. Clearly, this amount would not adequately compensate him for the energy expended in pursuing this matter. However, it is an indication that the $70 figure is a reasonable one, and that the $125 per hour fee requested by claimant’s counsel would not be justified under the facts of this case.”

The judge did the best he could with the situation presented to him. In future cases, the hourly fee the Workers’ Compensation Judge applies to the time spent should be based on the individual attorney’s current and customary hourly fee as established by that particular attorney.

Affirmed.

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

MR. JUSTICE SHEEHY,

specially concurring:

I concur with the majority and add the following:

In this case, the Workers’ Compensation Court accepted, or at least relied heavily on, the testimony of Norman Grosfield, that the usual and customary fees assessed in Montana by Montana lawyers was the yardstick to which the Workers’ Compensation Court was bound in fixing the attorney fees in this case.

In leading the Workers’ Compensation Court to use the usual and customary fees of other lawyers, Grosfield misinterpreted or misapprehended what the legislature intended in adopting the 1985 revisions to Section 39-71-612, MCA.

Grosfield testified in deposition before the Workers’ Compensation Court:

“The intent in drafting the bill and the intent as expressed by myself to the legislature as the primary author was exactly the opposite, to correct what I perceived as a problem in the Wight decision and to reinstate the system that existed previously. That would provide for an assessment of attorneys fees based on customary attorneys fees charged in Montana by Montana lawyers.”

Grosfield Deposition, at 21.

Whatever Grosfield intended in drafting the bill, his intention was not followed by the legislature. Instead, the legislature eliminated from the bill any consideration of hourly fees recognized by the legal profession.

The 1985 amendments to Section 39-71-612, MCA, are contained in Ch. 575, Laws of Montana (1985). The amendments originated in H.B. 778, authored, as we are told, by Grosfield, who was intent that contingent attorney fees contracts should not be the basis of attorney fees awards in compensation cases, especially large awards.

The central paragraph of Grosfield’s bill as first proposed and introduced in the House during the 1985 Legislature Session said:

“. . . (1) The amount of an attorney’s fee assessed against an employer or insurer under 39-71-612 must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought before the workers’ compensation judge. The attorney must document the time spent and give the documentation to the judge. The judge shall determine a reasonable attorney fee and assess costs. He is not bound by the documentation submitted to him. The hourly fee the judge applies to the time spent must be based on a customary and current hourly fee recognized by the legal profession as a reasonable hourly fee for legal work performed in this state. (Emphasis added.)”

Introduced Bill H.B. 778 (1985 session).

The language underlined above in Grosfield’s proposed bill was not accepted by the legislature. It refused the concept of applying the usual and customary fees of other attorneys. Instead, the legislature revised the offered bill to read as follows:

“. . . (1) The amount of an attorney’s fee assessed against an employer or insurer under 39-71-611 or 39-71-612 must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought before the workers’ compensation judge. The attorney must document the time spent and give the documentation to the judge. The judge shall determine a reasonable attorney fee and assess costs. He is not bound by the documentation submitted to him. The hourly fee the judge applies to the time spent must be based on the attorney’s customary and current hourly fee for legal work performed in this state.”

Reference H.B. 778.

The language underlined above is what the legislature inserted in place of the language that Grosfield had proffered. It is clear that the legislature recognized that the matter of attorney fees charged by individual attorneys is largely subjective; that such fees vary from lawyer to lawyer, that factors in determining those fees include age, experience, ability, and the availability of the attorney to perform the kind of legal work involved.

In construing statutes, the court must give effect to the legislative will, if possible, and not defeat that will. State ex re. School District No. 8 v. Lensman (1939), 108 Mont. 118, 88 P.2d 63. If no ambiguity exists in the statute, the letter of the law will not be disregarded under the pretext of pursuing its spirit. Vaughn & Ragsdale Company v. State Board of Equalization (1939), 109 Mont. 52, 96 P.2d 420. A court cannot give effect to supposed unexpressed intentions, in a legislative act, merely to find a basis for a certain construction of an act. State v. J.C. Maguire Construction Company (1942), 113 Mont. 324, 125 P.2d 433. The function of the court with respect to statutory construction is to interpret the intention of the legislature, if at all possible, from the plain meaning of the words, and if the meaning of the statute can be determined from the language used, the court is not at liberty to add to or detract from the language of the statute. Montana Deaconess Hospital v. Cascade County (1974), 164 Mont. 256, 521 P.2d 203. While it is a general rule that it is the duty of the court to ascertain the intention of the legislature, if possible, and construe the act with reference to that intention, it is equally true that the intention must be gathered from the language employed by the lawmakers and not from street rumors. State ex rel. Murray v. Walker (1922), 64 Mont. 215, 228, 210 P. 90.

Nonetheless, the Workers’ Compensation Court was correct in deciding that Kelleher did not provide the court with adequate evidence on which to base his customary fee for these cases. The legislature crated the dilemma by adopting Grosfield’s bill, an anomaly and an impossibility for a lawyer whose compensation work is limited to representing claimants based on a contingent fee. As attorney Prindle testified in this case, it is impossible for a court to equate an hourly fee basis with a contingent fee basis. The two are simply not comparable. It behooves this Court then, in that situation, to give sustenance to the efforts of the legislature to limit fees by suggesting to the Workers’ Compensation Court types of evidence that it should consider.

The evidence on fees should be related solely to the attorney or firm handling the worker’s claim. Pertinent factors to be considered should include the experience of the attorney in the field, and the complexity of the claim. The attorney should document for the Workers’ Compensation Court the claimed hourly fee by supplying to the court figures that would represent his annual overhead in handling legal business; his justifiably expected annual income from the legal business; and the number of annual billable hours that the attorney normally would apply to the legal business. Using such figures, the Workers’ Compensation Court could determine, in its discretion, a proper hourly fee to be awarded. Other methods of evidence may suggest themselves to the Workers’ Compensation Court or to attorneys, but in all cases, the methods or evidence should relate to the “attorney’s customary or current hourly fee” for his services. Evidence of what other lawyers charge is irrelevant to the inquiry. Norm’s norm is not the norm in the case.

MR. JUSTICE MORRISON concurs with MR. JUSTICE SHEEHY.

MR. JUSTICE HUNT,

concurring:

I concur in the result reached by the majority and by Justice Sheehy in his special concurrence. But I am perplexed by what seems to be objection to considering the testimony of Norman Grosfield, an experienced practitioner of Workers’ Compensation law, who was counsel and later administrator of the Montana Workers’ Compensation Division, the state agency that oversees the entire Workers’ Compensation program in Montana. In addition to that experience, the witness testified that since entering private practice, 80% of his work was and is Workers’ Compensation law primarily representing claimants.

Grosfield testified by deposition and was subject to cross-examination. His testimony was considered by the Workers’ Compensation judge who, in his analysis said:

“Since Mr. Grosfield’s opinion testimony was not answered by other countervailing deposition testimony, claimant’s counsel has failed to carry his burden of proof and has not prepondered on the reasonableness of the heightened hourly rate originally requested.
“Further, the judge said:
“While this court is not bound by Mr. Grosfield’s opinion as to what would be a reasonable hourly rate for any given attorney in this case, the Court finds the $70 figure to be a valid one.”

This conclusion seems to me to be in line with Section 39-71-614, MCA, which says, “The judge is not bound by the documentation submitted to him. The hourly fee the judge applies to the time spent must be based on the attorney’s customary and current hourly fee for legal work performed in this state.”

In my opinion the judge was correct in considering the opinion of this expert.


author: MR. JUSTICE MORRISON

text:
    In the MATTER OF M.J.D., C.K.D, A.R.D., Youths in Need of Care.
    No. 86-258.
    Submitted on Briefs Nov. 25, 1986.
    Decided Jan. 29, 1987.
    731 P.2d 937.

      Morin & Collins, Colleen Collins, Sally Johnson, Billings, for appellant.
    Mike Greely, Atty. Gen., Helena, Harold Hanser, Co. Atty., Greg S. Mullowney, Deputy Co. Atty., Olsen, Christensen & Gannett, Damon Gannett, Billings, for respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

The natural parents of M.J.D., C.K.D., and A.R.D., appeal the order of the Thirteenth Judicial District Court terminating parental rights and awarding custody and care of the minor children to the Montana Department of Social and Rehabilitation Services. We affirm.

The natural father, S.D., is an enrolled member of the Sturgeon Lake Band of Cree Indians, Saskatchewan, Canada. The natural mother, J.D., is an enrolled member of the Northern Cheyenne Indian Tribe, Lame Deer, Montana. S.D. and J.D. are the natural parents of four daughters, C.D., age 4, A.D., age 7, M.D., age 15, P.D., age 19, and two sons, O.D., age 14, and L.D., age 17. Each of the children are members of the Cree Indian Tribe. The three youngest daughters, C.D., A.D., and M.D., are the subject of this appeal.

Father and mother are now divorced. During the marriage the family lived in Canada and also on the Northern Cheyenne Indian Reservation in Montana. The father was alcoholic and physically abusive of his family. In 1980, the father was convicted in U.S. District Court in Billings, Montana, of assaulting his oldest daughter with a broom handle. He was placed on probation and ordered to stay away from his children.

Following the father’s probationary period the family returned to Canada. The mother left the family in the father’s care and moved to Great Falls, Montana, where she stayed from July, 1981, to January, 1982. The mother returned to the family and remained for 6 months, then left in July, 1982, with 4 of the 6 children and returned to Great Falls. The youngest boy remained with the father. The oldest daughter was removed from the family and made a ward of the Province of Saskatchewan.

The mother and father were divorced and the mother awarded custody of C.D., A.D., M.D., and L.D. In Great Falls, the mother and her children were placed in Mercy Home, a shelter for battered spouses. L.D. was removed and placed in the Receiving Home because he was stealing and destroying property in Mercy Home. The social worker assigned to the family found an apartment and attempted to help the mother with her parenting and housekeeping skills. The social worker also assisted the mother in buying household supplies and food. The mother frequently spent or gave away her money before her next check arrived.

The assistance provided to the mother in 1982 did not improve her home management skills. The children did not obey their mother. She constantly yelled at them. A.D., about 4 at the time, wandered away and was rescued by the police three times. On one occasion, the mother left her two youngest daughters at home alone. A.D. wandered off; C.D., after crying for a long while, crawled out the door and was taken in by neighbors. M.D. and L.D. had extremely poor school attendance, and L.D. was removed to special education classes due to his disruptive behavior.

From October, 1982, through May, 1983, the family was provided with home assistance, day-care, financial services, clothing, food and mental health counseling. The mother tried to cooperate with those assigned to help her, but was unable to improve her money management skills or control her children. During this period of time there were 3 or 4 different men who resided in the home. The mother was unable to perform the most basic of parenting skills.

In May of 1983, the family moved to Billings. Family Services in Billings was contacted, and a worker visited the family at their tent sight on the bank of the Yellowstone River. The living conditions were improper for young children so living arrangements were made at the Gateway House. This placement was terminated quickly because the mother broke the confidentiality rule by having a male friend drop her off at the house.

Social worker Ken Boyd assumed the family’s case in late May, 1983, and placed them in the Rescue Mission. This placement lasted a short time before the family was asked to leave because the mother had left the children unattended for four hours. September 9, 1983, A.D. was found unaccompanied riding the elevators in the Sheraton Hotel and returned home. Boyd discovered November 29, 1983, that L.D. had been forcing his younger sister M.D., to have sex with him for several years. M.D. also informed Boyd that her mother was continuing to bring male visitors home. The following day M.D. was placed in foster care and L.D. was removed to the Billings Youth Home.

Betty Penn was assigned as a home attendant to assist the mother. Ms. Penn worked with the mother for about 6 months and assisted her with shopping, transportation, keeping appointments and attending parenting classes. The mother missed many of her appointments with Penn and was often still in bed when Penn arrived to take her to parenting classes. Penn noticed different men staying in the home each time she visited. On December 10,1983, Penn arrived in the morning to find A.D. with only her underpants on and C.D. running around naked. L.D., who had been removed from the home, was lying on the couch and two others were lying on the floor. A.D. informed Penn that her mother had gone to a movie the night before and not returned. Penn returned with Boyd and an officer and removed the children from the home.

It was discovered that both L.D. and M.D., the older sister, had had inappropriate sexual contact with C.D. and A.D. When placed in foster care, A.D. displayed inappropriate sexual behavior.

Dr. Donna Veraldi, a clinical psychologist, evaluated the mother, A.D. and M.D. in December, 1983. She found that the children suffered from environmental deprivation and the mother had a dependent personality disorder. Dr. Veraldi recommended mental health counseling and in-home training for the mother.

On January 12, 1984, the Yellowstone County Attorney was granted temporary investigative authority to investigate the welfare of C.D., A.D., M.D., and L.D. Counsel was provided for the mother, a guardian ad litem appointed for the children, and notice given to the father of the proceedings. On January 24,1984, L.D. was adjudicated a delinquent youth for the offense of incest against his sister, and committed to Pine Hills School for Boys.

On February 28, 1984, the District Court approved a treatment plan for the mother. The mother fared very poorly in the treatment plan, so the Department of Social and Rehabilitation Services (SRS) filed a petition on May 10, 1984, for permanent custody and authority to assent to adoption of C.D. and A.D. In June, the father contacted SRS indicating he wished to obtain custody of the children. The District Court approved a service treatment agreement for the father to be implemented by Canadian agencies.

Hearings concerning the petition for permanent custody filed by SRS were conducted December 18, 1984, and July 31, 1985. Testimony was heard from the psychologists and social workers involved with the case, and from both parents. The District Court issued its order December 13, 1985, awarding temporary custody of C.D., A.D., and M.D. to SRS. A further hearing was held January 10, 1986, updating the status of the children. Following hearing, the District court issued its amended findings, conclusions of law and order awarding temporary custody of M.D. to SRS until the age 18, the permanent custody of C.D. and A.D. to SRS, and terminating the parents’ rights to C.D. and A.D. Motion to amend or alter judgment was denied and both parents appeal.

The mother raises the following issue:

1) Whether there is clear and convincing evidence to support the District Court conclusion that M.D., C.D., and A.D., were youths in need of care and that the mother’s parental rights should be terminated?

The father raises the following issues:

1) Whether the District Court erred in finding that the father abandoned his children?

2) Whether the District Court abused its discretion in terminating the parental rights of the father?

3) Whether the District Court abused its discretion in refusing to relinquish jurisdiction to the Sturgeon Lake Band of Cree Indians?

The mother contends there is not substantial evidence supporting termination of her parental rights. The mother takes issue with the court’s findings Nos. 4 and 5 which found the mother unfit, unable, and unwilling to care for her children, that she permitted them to be sexually assaulted, and that she has received several years of rehabilitative training which has failed. The mother also contends the court-approved Service Treatment Agreement between SRS and the mother was of inadequate duration to allow her to improve her skills of parenting and home management.

Section 41-3-609, MCA, provides that a court may terminate a parent-child legal relationship upon finding the child is a youth in need of care, and both of the following exist: 1) a court approved treatment plan has not been complied with by the parents; and 2) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

We find substantial, credible evidence in the record supporting termination of the mother’s parental rights. The mother received assistance and training from July, 1982, through May, 1983, while living in Great Falls. Her home management and parenting skills did not improve. The family moved to Billings, and family services were provided by Yellowstone County. Due to the mother’s inappropriate conduct the family was removed from two home placements. A social worker assigned to help the mother reported no improvement by the mother, different men residing in the home from week to week, and indications of sexual abuse among family members.

The service treatment agreement covered the period March 1, 1984, through April 10, 1984. The report filed April 11, 1984, found the mother failed to complete the agreement and was unable to provide a stable home environment. Contrary to the mother’s assertions that she had only 40 days to improve her skills, we note that she received nearly two years of training and assistance with no sign of improvement. We find no abuse of discretion by the District Court in terminating the mother’s parental rights.

The father contends the District Court erred in finding he had virtually abandoned his children. Abandonment is' defined in Section 41-3-102(3)(d), MCA, as occurring when the parent,

“abandons the child by leaving him under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or by willfully surrendering physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child;” We do not agree with the father’s contention that the District Court’s finding of “virtual abandonment” differs from the statutory standard. There is substantial evidence of abandonment as defined in the above statute.

The mother moved to Great Falls with 4 of the 6 children in July, 1982. During the next two years the father made minimal effort to contact his family. He wrote one letter to the mother while the family was staying in Great Falls. He made a phone call in March, 1984, to Ken Boyd wanting to know what was happening to his children.

The father did not make known his intention to acquire custody and provide care for the children until approximately June, 1984, three months after he was informed of the custody proceedings filed by SRS. The period for establishing abandonment pursuant to Section 41-3-102(3)(d), MCA, is six months. In this instance, the father had not contact with the children and did not state any intention of resuming care of the children for a period of two years.

The father testified that on one occasion a social worker would not inform him of his children’s whereabouts. The record is unclear on this matter. However, it is clear that the father did not inform his wife or the social workers in Montana of an intention to resume custody of the children until termination proceedings had begun. There is substantial credible evidence in the record supporting the District Court finding that the father abandoned his children.

The next issue is whether the District Court erred in terminating the father’s parental rights. Criteria for termination are listed in Section 41-3-609, MCA, which provides in part:

Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (1)(b), or (l)(c), as follows, exist:

(a) the parents have relinquished the child pursuant to 40-6-135;

(b) the child has been abandoned by his parents as set forth in 41-3-102(3)(d); or

(c) the child is an adjudicated youth in need of care and both of the following exist:

(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and

(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.

The father contends there is not substantial evidence to support the District Court’s finding that he did not successfully complete the treatment plan. We need not address this issue because the court found the father abandoned his children. Only one of the three circumstances listed in Section 41-3-609(1), MCA, need be found in order to terminate a parent’s rights. There is substantial credible evidence of abandonment by the father, which meets the criteria for termination of parental rights under Section 41-3-609, MCA.

The final issue is whether the District Court abused its discretion in refusing to relinquish jurisdiction to the Sturgeon Lake Band of Cree Indians. The Sturgeon Lake Band participated in the dispositional hearings and presented a formal resolution asking the District Court for custody of the children. The District Court denied the request, and concluded that it was in the best interests of the children to remain in the custody of SRS with authority to assent to adoption.

One of the District Court’s concerns was that if C.D. and A.D. were placed on the Cree Reservation in Canada, their older brother would have access to them. The father contends newly discovered evidence indicating the brother will be at a boys ranch hundreds of miles away compels reversal of the placement with SRS. The father further contends the Sturgeon Lake Cree Band had appropriate services to treat the abused children, and the children rightfully belonged within their Indian tribe.

The District Court is required to consider the best interest of the children in determining placement pursuant to Section 41-3-406(5), MCA. Both C.D. and A.D. were placed in foster homes during the pendency of the proceedings. At the final dispositional hearing, a report concerning A.D. was introduced in which the reviewing psychologist strongly recommended that there be no change in A.D.’s placement and her prognosis for treatment appeared very good. Ken Boyd testified that C.D. should remain in her current placement with the ultimate goal of reuniting her with A.D. and placing both children in a Native American home. This evidence supports the District Court conclusion it is in the best interests of A.D. and C.D. that custody be awarded to SRS. We find no abuse of discretion.

The District Court is affirmed.

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


author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON, MR. CHIEF JUSTICE TURNAGE,

text:
    MICHAEL SANDAHL, (Deceased), Stephanie Sandahl, Claimant and Appellant, v. JAMES A. SLACK, INC., Employer, and GLACIER GENERAL INSURANCE COMPANY, Defendant and Respondent.
    No. 86-317.
    Submitted Oct. 23, 1986.
    Decided Jan. 29, 1987.
    Rehearing Denied Feb. 20, 1987.
    732 P.2d 831.
    Michael C. Prezeau, Trieweiler Law Firm, Whitefish, for claimant and appellant.
    P. Mars Scott, Mulroney, Delaney & Scott, Missoula, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from a judgment of the Workers’ Compensation Court awarding Stephanie Sandahl survivorship benefits of $211.77 per week. We reverse and remand.

The only issue on appeal is whether periods of forced idleness should be excluded when calculating the compensation rate for beneficiaries of a deceased fulltime employee.

Michael Sandahl was killed on November 1, 1984 when his log truck overturned on an icy highway west of Kalispell. He was 33 years old at the time of his death and is survived by his wife Stephanie and two children.

Sandahl began his employment with James A. Slack, Inc. on January 2, 1984 as a driver of a log truck and like the other drivers employed by Slack, was paid a percentage of the amount he grossed with his truck. There was no salary or set hours of employment and no written contracts existed between Slack and its employees. Drivers worked a five day work week but the average work day exceeded eight hours. However, there were times the drivers could not work due to equipment failures or spring break-up. The log truck drivers earned between $30 — $70 per load, depending on the distance the logs were hauled.

The insurer accepted liability for Sandahl’s death and began paying benefits to Stephanie at the rate of $200.36 per week. Stephanie filed a petition in the Workers’ Compensation Court requesting that her benefit rate be raised to the maximum $286 per week. The Workers’ Compensation Court held that her benefits should be increased but only by $11.41 per week to $211.77. She appeals.

Section 39-71-721, MCA, provides for the payment of death benefits to the beneficiaries of a worker killed in the course of his employment as follows:

“39-71-721. Compensation for injury causing death. (1) If an injured employee dies and the injury was the proximate cause of such death, then the beneficiary of the deceased, as the case may be, is entitled to the same compensation as though the death occurred immediately following the injury, but the period during which the death benefit is paid shall be reduced by the period during or for which compensation was paid for the injury.
“(2) To beneficiaries as defined in Subsections (2) (a) through (2)(b) of 39-71-116, weekly compensation benefits for injury causing death are computed at 66-% % of the decedent’s wages. The maximum weekly compensation benefits may not exceed the state’s average weekly wage. The minimum weekly compensation for death is 50% of the state’s average weekly wage, but in no event may it exceed the decedent’s actual wages at the time of his death . . . “

Wages is defined in Section 39-71-116(20), MCA, as:

. . the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered. Sick leave benefits accrued by employees of public corporations, as defined by Subsection (16) of this section, are considered wages.”

In this case, the difficulty stems from determining what the “usual hours of employment in a week” would be. The insurer averaged the deceased’s salary from the time he started working for Slack ($12,743.48) over the entire time of his employment (42.4 weeks). The insurer included in that time those weeks when the deceased did not work because of equipment failure and spring break-up, but did not include the week James A. Slack, Inc. closed down for hunting season. The insurer calculated the decedent’s benefits as follows:

$12,743.48 42.4 = 300.55
300.55 X 2 = 601.11
601.11 3 = 200.36

It paid Stephanie $200.36 per week in benefits.

The Workers’ Compensation Court concluded that the decedent’s benefit rate should be based on the preceding four pay periods or 8 weeks. The Workers’ Compensation Court also discounted the week for hunting season. The decedent’s earnings were:

Thus the preceding 4 pay periods included three weeks during which the decedent did not work. Two of those weeks of unemployment were due to equipment failures, one week was hunting season. The Workers’ Compensation Court included the weeks during which decedent did not work because of equipment failures, but excluded the week of hunting season. Thus the Workers’ Compensation Court figured the benefit rate as follows:

9/01/84 - 9/15/84 $ 496.16
9/16/84 - 9/30/84 416.24
10/01/84 - 10/15/84 1,114.33
10/16/84 - 10/31/84 377.89
$2,404.62
$2,404.62 -5- 7 4/7 or 7.57 = 317.65
317.65 X 2 = 635.31
635.31 + 3 = 211.77

On appeal, Stephanie contends that the periods of forced idleness should not be included in the calculation. She contends it is unfair to penalize her husband for the time he could not work due to equipment failures, especially when he was not penalized for the week off due to hunting season.

We have addressed the issue of how to calculate wages on several prior occasions, however, one case in particular is applicable to the situation at hand. In Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d 556, we dealt with a logger who was injured when a log rolled over him. The employer claimed that at the time of the injury the claimant was making $41.17 per week. The claimant testified that he was not making much money when the injury occurred because the snow was too deep to work. He testified that he normally made $100 per week. We held that, “. . . enforced idleness because of weather conditions should not be considered in computing the average weekly wage.” 136 Mont, at 222, 346 P.2d at 558. We also stated that is was unfair to measure claimant’s wages at the time he was injured by the amount he received when the snow was so deep he could not work. Id. Likewise, in this case, the prior four pay periods happen to include two weeks during which the decedent could not work due to equipment failures. To include the periods of forced idleness in the calculations unfairly penalizes the decedent. When the enforced idleness is properly excluded, the correct calculations are as follows:

9/01/84 - 9/15/84 $ 496.16
9/16/84 - 9/30/84 416.24
10/01/84 - 10/15/84 ' 1,114.33
10/16/84 - 10/31/84 377.89
$2,404.62
$2,404.62 5.57 = 431.70
431.70 X 2 = 863.40
■ 863.40 + 3 = 287.80

Because the maximum statutory rate in effect at the time of decedent’s death was $286 per week pursuant to Section 39-71-721, MCA, Stephanie is limited to that amount.

Reversed and remanded for findings consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER and MORRISON concur.

MR. JUSTICE GULBRANDSON,

dissenting:

In my view, the majority has ignored the statutory requirement of determining the average gross earnings, and, by reversing the Workers’ Compensation Court, seemingly has adopted an “earning capacity” test.

It is obvious that in the Montana logging industry, it is not unusual for a truck driver to be paid a percentage of the gross income produced by the vehicle involved. Here, the employer operated a fleet of five trucks, with five drivers. Each driver operated the same truck when logs were available to be hauled to the various mills. Trucks were not rotated among the various drivers, and each driver was responsible for the general cleanliness of the truck assigned to him. Each driver knew that his income was dependent upon the number and length of the hauls delivered to the mill. During the “spring breakup,” it is customary for the Montana Highway Department and the U.S. Forest Service to impose weight restrictions on the use of roads. The restrictions may be total for a period of months, or truck traffic may be allowed during the morning hours until the roads start to thaw out. In the latter event, a trucker may get in one haul, whereas he would ordinarily be able to complete two or possibly three hauls. Each driver knows that the road restrictions are imposed every year and the drivers for James A. Slack, Inc. knew that no work would be available for them during the restricted period. The drivers were allowed to seek employment elsewhere or to apply for unemployment compensation. In fact, the record discloses that the decedent Sandahl did drive truck for another employer, for wages, for a portion of the time used in the computations here. Here, each driver' knew that he would have no income during a period of equipment shutdown. In extremely cold weather, logging equipment and machinery (owned and operated by other than the employer here) may not be operable, in which event there would be no logs available for hauling.

Here the insurer originally used the entire work history of the decedent with the James A. Slack Company in computing benefits in the amount of $200.36 weekly. The Workers’ Compensation Judge determined the proper period, to account for seasonal fluctuations, was the preceding four pay periods totaling eight weeks and four days, with a deduction of one week for hunting season, resulting in a weekly benefit of $211.77.

In my opinion, the Workers’ Compensation Judge correctly concluded as follows:

“In the vast majority of cases, this mathematical calculation is based on the four pay periods preceding the injury as reported in the Claim for Compensation and the Employers First Report and there is no dispute.
“In Mahlum v. Broeder, 147 Mont. 386, 412 P.2d 572 (1966), the Supreme Court set the standard for defining wages when it was stated:
“ ‘. . . What is a reasonable period of time, of course, depends on the circumstances of each case. The period must be sufficiently long to take into account seasonal fluctuations for hours, wage rates, vacations, and any other factors which may materially affect the average daily wage.”
“This was reaffirmed in Walter v. National Automobile and Casualty Co., [181] Mont. [109], 592 P.2d 497 (1979) which interpreted 93-423 R.C.M., 1947, the predecessor to Section 39-71-116(20), MCA, supra.
“The Court attempted to balance the legislature’s directive which states that the Act must be liberally construed in favor of the claimant, Section 39-71-104, MCA, and the directives which impose various limits on benefits, Section 39-71-721, MCA, Section 39-71-116(20), MCA. The Supreme Court set the standard requiring ... a reasonable period of time, which must be sufficiently long, to take into account seasonal fluctuations and any other factors which may materially affect the average daily wage. It did not state that the time periods affected should be thrown out of the calculation altogether, but rather [that] an averaging of time was the appropriate method. Accordingly, disputes over rates will vary from case to case. This allows the needed flexibility to deal with different circumstances.” (Emphasis in original.)

I would affirm the order of the Workers’ Compensation Judge.

MR. CHIEF JUSTICE TURNAGE,

concurring with the dissent of MR. JUSTICE GULBRANDSON:

The Workers’ Compensation Court is required to follow Section 39-71-116(20), MCA, in determining the employee’s applicable wages based on his average gross earnings. There is no basis in the statute for a determination of wages in this case based upon an “earning capacity” test. The practical result of the majority opinion clearly is based on “earning capacity,” a test not authorized by statute.

On occasion criticism has been leveled at the court system for perceived excesses in workers’ compensation matters.

Whatever problems may exist should be put in proper context. In 1915 the Workers’ Compensation Act was enacted, and since that time, the legislature has amended it so many times the amendments are almost uncountable. A casual review of the present statutes presents a picture of little, if any, coordination and much by way of confusing and conflicting provisions. The court system can only interpret and apply the law as given it by the legislature. For the courts to assure justice in this background of statutory morass is nearly an insurmountable task.

Unless some major effort is made to provide a statutory scheme that will assure speedy and effective justice to the unfortunate injured workers, I fear that the competing interests of the employer, insurer and injured worker will sink only further into the low-lying boggy ground of our present statutory scheme, with the interest of the injured worker deserving just and fair compensation often overshadowed by litigation that will follow every claim as a shadow follows its substance.


text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. FRED ANDREW NELSON, Defendant and Appellant.
    No. 86-406.
    Submitted Nov. 20, 1986.
    Decided Jan. 29, 1987.
    731 P.2d 1299.

      Mark P. Yeshe, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Mike McGrath, Co. Atty., Helena, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant, Fred Andrew Nelson, appeals the order of the First Judicial District Court, County of Lewis and Clark, revoking a four-year suspended sentence. We affirm the revocation.

Defendant has been involved in illegal activities since his youth. On February 5, 1981, defendant pled guilty to one count of burglary and one count of theft. Sentencing was deferred for three months. On June 1, 1981, the trial judge, upon motion of the Lewis and Clark County Attorney, revoked defendant’s deferred sentence and sentenced defendant to ten years imprisonment on each count, to be served concurrently. The last four years of each term were suspended.

On July 20, 1983 (following his release from prison), defendant was again charged with felony theft. Thereafter, the County Attorney filed a petition to revoke defendant’s four-year suspended sentence. A hearing on the petition was set, but defendant failed to appear. Upon his eventual arrest, defendant was returned in January of 1985 to Montana State Prison as a parole violator. The petition to revoke the four-year suspended sentence was dropped. Defendant was next discharged from the Montana State Prison in December 1985.

On March 13,1986, defendant was arrested with two other individuals and charged with the burglary of The Pop Shoppe convenience store in Helena, Montana. A petition to revoke the four-year suspended sentence was once again filed on April 24, 1986. Hearings were held on the petition May 19, May 27 and June 2, 1986.

Defendant is unable to recall the events preceding his arrest. However, at the May 27, 1986, hearing, defendant conceded that the State had sufficient, incontrovertible evidence to show that defendant had not been a law-abiding citizen. Specifically, a witness identified defendant as one of the participants and an accomplice implicated defendant in the burglary. The trial judge accepted defendant’s concession.

The State then asked the trial judge to revoke defendant’s suspended sentence and send defendant back to Montana State Prison. The State presented no witnesses, but asserted that defendant’s record mandated such a disposition. Defendant presented several witnesses, including defendant’s former probation officer, a chemical dependency counselor at Sunrise Ranch Alcohol Treatment Center and the administrator of that facility. Defendant had previously completed Sunrise Ranch’s chemical dependency treatment program. These individuals all testified that defendant’s problems with the law stem directly from chronic chemical dependency. None of the individuals believed defendant’s best interests would be served by a return to Montana State Prison. Each testified that defendant would most benefit from long-term placement with the Lighthouse Chemical Dependency Program at Galen State Hospital. However, Lighthouse no longer provides long-term treatment. Concern was also voiced that defendant would “run”, as the facility is an open one. The matter was continued.

At the June 2, 1986, hearing, defendant’s present probation officer testified at the judge’s request. He also concluded that although there was a probability defendant would run, placement at Lighthouse would be the most suitable disposition.

This trial judge accepted these recommendations and rendered his decision from the bench, stating:

“I am confident that if I put you in the penitentiary for the last four years that isn’t going to do any good either. You are going to be just as bad when you get out as you are now, if not worse. So that isn’t going to help. So we have this one last shot, the Lighthouse Program . . .
“You are a relatively young man and it seems to me that your difficulty is almost entirely derived from your dependency on chemicals, either alcohol or drugs, one or the other. If we could get you away from that, I think we would have a chance to save you . . . What I am trying to do is see if I can save a 24 year old man with one last shot of a 90 day program at Lighthouse.”

Tr. p.99, In. 18-23; p.100, In. 8-13, 20-21.

An order was issued June 4, 1986, continuing the proceeding until defendant could enroll in, attend and complete the Lighthouse program. Upon completion of the program, defendant was to be returned to court for further disposition. Defendant was to remain in the Lewis and Clark County jail until June 10, 1986, when he would be transferred to the Lighthouse program.

Defendant became involved in an altercation with a jailer at lunch on June 4, 1986. The incident resulted in defendant being charged with a misdemeanor, obstructing a police officer in the performance of his duties.

The County Attorney filed a petition June 9, 1986, again seeking to revoke defendant’s suspended sentence. A hearing was held on the petition June 16,1986. At the start of that hearing, the State moved to amend the June 9, 1986, petition to incorporate the grounds for revocation set forth in the April 24, 1986, petition. The defendant did not object and the motion was granted. Tr. p.114, In. 1-9.

At the hearing, the State presented evidence of other disciplinary actions taken against defendant while he was in jail, in addition to various accounts of the June 4 incident. The trial judge ultimately determined “that Defendant was difficult to handle on that day, that he profanely insulted the jailer, that force was required to control him, but that one of the jailers may have used excessive force.” Order dated June 18, 1986, p. 3. The trial judge then revoked defendant’s suspended sentence and had him returned to Montana State Prison.

On appeal, defendant raises two issues:

1. Did the District Court err in admitting certain matters into evidence and in considering those matters in its decision to revoke?

2. Did the District Court err in revoking defendant’s suspended sentence and sending defendant to the Montana State Prison rather than continuing suspension of sentence and sending defendant to the Lighthouse Chemical Dependency Center?

Defendant objects to the use of the reports of previous disciplinary action taken against him for two reasons: 1) they violate the hearsay rule; and 2) he was not given notice of the State’s intent to admit the reports. The rules of evidence do not apply to probation revocation hearings. Rule 101(c)(3), Mont. R. Evid. Courts in general allow the admission of hearsay evidence at sentence revocation hearings. “Admissibility of Hearsay Evidence in Probation Revocation Hearings”, 11 ALR 4th 999 (1982).

The minimum requirements of due process are extended to sentence revocation hearings. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656. Thus, defendant was entitled to notice of all alleged violations leading to the petition to revoke. State v. Steffans (1981), 195 Mont. 395, 398, 636 P.2d 836, 838. Since defendant was not notified of the State’s intent to use these disciplinary reports against him, the trial judge erred in admitting them into evidence. However, in his order revoking defendant’s suspended sentence, the trial judge gave only passing mention to those reports. The primary reason for the judge’s decision was the altercation which occurred June 4, 1986.

“When the Court addressed Nelson in open court at the time he was going to be allowed to go to Lighthouse, the Court advised Nelson that this was his last chance. This impressed him not at all as was shown by his difficulty in the Lewis and Clark County Jail almost directly thereafter. The Court had hoped Nelson would take his one last chance. It is now clear he is a hopeless case.”

Order of June 18, 1986, p. 4. Defendant is entitled to prior notice of the reasons relied on by the trial judge when revoking the suspended sentence. Defendant had such notice. Therefore, any error is harmless. State v. Steffans, supra.

Defendant also asserts that the trial judge erred in revoking his suspended sentence because the revocation was not premised upon the violation of any condition of his suspended sentence. Defendant has overlooked the order amending the June 9, 1986, petition to revoke to include the grounds for revocation set forth in the April 24, 1986, petition. Defendant’s suspended sentence was revoked because defendant conceded, on the basis of his participation in the The Pop Shoppe convenience store burglary, that the State could prove he had not been a “law-abiding citizen.” Thus, an implied condition of suspension was violated. The Court’s most recent order merely changes the disposition imposed after revocation of the suspended sentence. It is supported by substantial evidence.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    ARLENE GULBRAA, Claimant and Appellant, v. ALCO ENERGY PRODUCTS, Employer, and The HARTFORD INSURANCE COMPANY, Defendant and Respondent.
    No. 86-151.
    Submitted Dec. 2, 1986.
    Decided Feb. 3, 1987.
    731 P.2d 1302.

      Nye & Meyer, Jerrold L. Nye argued, Billings, for claimant and appellant.
    Alexander & Baucus, J. David Slovak argued, Great Falls, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Arlene Gulbraa appeals a Workers’ Compensation Court decision that she had not suffered a compensable injury under the Montana Workers’ Compensation Act. The issue on appeal is whether there is substantial credible evidence to support the lower court’s decision. We affirm.

Gulbraa was employed by Alco Energy Products in Billings, Montana, from April 1983 to May 1985, as a telephone solicitor. Her job was to contact potential customers, deliver a sales “pitch” and hopefully arrange for a personal appointment by a company sales representative. When such an appointment was arranged, it was designated a “lead.” In April 1985, after being passed over for a promotion, Gulbraa suspected that the leads she had collected were not being acted upon by the company. After meeting with her supervisor on May 13, 1985, Gulbraa was terminated from her position at Alco. Since approximately 1971, Gulbraa has been treated by Dr. Rich, a Billings psychiatrist, for depression and related problems. Gulbraa’s depression required frequent hospitalization between 1972 and 1975 before finally stabilizing. While working for Alco, Gulbraa saw Dr. Rich a total of three times — once for anxiety associated with scheduled foot surgery and two other times for routine checkups. Nine days after her termination, Gulbraa saw Dr. Rich and expressed concern about losing her job rather than the working conditions of the job.

Gulbraa was hired by Sears as a telephone solicitor four days after being fired by Alco but quit approximately one month later because of problems with her depression. She then worked two weeks for Meadowlark Agency in a similar capacity before she and the owner agreed that the employment would have to end because of her depression. Gulbraa was hospitalized the last week of June 1985, and again for several days in July 1985, because of her depressed condition. As of October 1985, Dr. Rich found Gulbraa incapable of working for at least three months, and at the time of trial Gulbraa was still unable to return to work.

The Workers’ Compensation Judge concluded that Gulbraa had not suffered a compensable injury under the Montana Workers’ Compensation Act and was not entitled to compensation or medical benefits.

The standard of review of workers’ compensation cases is whether substantial, credible evidence supports the Workers’ Compensation Court decision. Courser v. Darby School Dist. No. 1 (Mont. 1984), [214 Mont. 13,] 692 P.2d 417, 419, 41 St.Rep. 2283, 2285. Section 39-71-119, MCA, reads in relevant part:

“ ‘Injury’ or ‘injured’ means:
“(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury . . .”

The Workers’ Compensation Act is to be liberally construed in favor of the claimant. See Section 39-71-104, MCA. But this liberal construction does not allow us to disregard clear statutory provisions or to use it to the point of repealing or abrogating a statute. Wassberg v. Anaconda Copper Co., (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 913, 42 St.Rep. 388, 392.

Section 39-71-119, MCA, clearly requires proof of physical harm, either external or internal, stemming from an incident at the workplace. The burden of proof is on the claimant. Aho v. Burkland Studs (1969), 153 Mont. 1, 452, P.2d 415.

In the recent case of Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 43 St.Rep. 310, job-related physical and emotional stress which aggravated a preexisting physical ailment qualified the . claimant for workers’ compensation. Claimant in Tocco was suffering from arteriosclerosis and hypertension when he began part-time work for the City of Great Falls. Claimant was assigned a difficult sanitation route one day and knew the City was going to add several full-time positions in the near future. Claimant suffered a fatal heart attack attempting to lift a box into the garbage truck. The treating physician testified that claimant’s job-related emotional and physical stress may have played a very direct role in his sudden death by aggravating his preexisting ailments of arteriosclerosis and hypertension. This Court affirmed the Workers’ Compensation Court’s decision to award benefits, stating that the medical testimony “provided the final link between [claimant’s] preexisting conditions, his physical and emotional injuries, and his sudden death.” Tocco, 714 P.2d at 165.

Therefore when it is medically proven that a work-related incident may have aggravated a preexisting physical ailment of the claimant, a compensable injury has been established.

In this case, Gulbraa suffered serious bouts of depression from 1971-75 requiring frequent hospitalization. During her employment with Alco, as previously stated, Gulbraa saw Dr. Rich for reasons unrelated to the working conditions at Alco. In his deposition Dr. Rich stated that Gulbraa’s depression problems were partly biological in origin but that a particular percentage could not be estimated with any degree of medical certainty.

“THE DEPONENT: To put it into my words, I believe that there is a component of her depression that is definitely physically based, meaning a biochemical sort of thing, needing medications. What percentage of that as opposed to what percentage is psychological, I don’t know.”

Regardless of whether Gulbraa’s depression qualified as a preexisting physical ailment, it is important to note that the aggravation or reemergence of Gulbraa’s depression did not occur, according to Dr. Rich, until May 22, 1985, nine days after Gulbraa had been fired.

“Q. Is it fair to say that her most recent acute exacerbation would have occurred shortly before or during the visit of May 22nd of 1985?
“A. Strictly speaking, I guess that would be the beginning of the exacerbation.
“Q. Prior to the May 22, 1985, occurrence, there was a relatively stable period of time, correct?
“A. Yes.
“Q. When she did express any concern about her employment with Alco, it was on May 22nd of 1985 after she had been terminated for some period of time; is that correct?
“A. Let’s see. That’s the first time I made a note regarding the employment.”

Dr. Rich further mentioned that Gulbraa appeared to be happy in her job at Alco.

“Q. And reviewing your note, it would appear that her concerns focused on the actual termination from employment as opposed to the employment itself?
“A. That’s correct.
“Now, regarding my answer to the previous question, in February of ‘85, I did indicate here that she was working for Alco Energy

Products. Next line I said she’s maintaining very well. And I didn’t make notes about the work, but I think my earlier answer still holds. I have a recollection that she seemed to be happy in that job.” (Emphasis added.)

We believe Gulbraa has failed to meet the test of a Section 39-71-119, MCA, because she did not prove a physical harm stemming from an incident at the workplace. Even assuming that Dr. Rich’s opinion as to the physical origins of Gulbraa’s depression is correct, it was not proven that the Alco job aggravated the depression. In fact, just the opposite was shown, that the aggravation of Gulbraa’s depression occurred after she was fired by Alco.

We conclude that there is substantial, credible evidence to support the decision of the Workers’ Compensation Court.

Affirmed.

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


text:
    H.D. BUELOW, d/b/a Olive Motor Inn, Gardner Grenz, d/b/a 600 Lounge, Alvin L. Young, Plaintiffs and Respondents, v. JOHN K. WILLEMS and Department of Revenue, State of Montana, Defendants and Appellants.
    No. 86-174.
    Submitted Oct. 21, 1986.
    Decided Feb. 3, 1987.
    731 P.2d 1309.

      Michael G. Garrity argued, Tax Counsel, Dept, of Revenue, Helena, for defendants and appellants.
    H.D! Buelow argued, Kenneth R. Wilson, Miles City, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The Montana State Department of Revenue (the Department) and John Willems, a Department investigator, appeal a Custer County District Court order which grants a permanent injunction to the plaintiffs (respondents here) H.D. Buelow, Gardner Grenz, and Alvin Young. The injunction prevents the Department from seizing respondents Buelow’s and Young’s video poker machines and from conducting an administrative hearing on the ownership and licensing of those machines. The issues on appeal are:

(1) whether the District Court erred in granting injunctive relief without a written application or petition from the respondents;

(2) whether the court erred in ruling that the machines of respondents Buelow and Young were entitled to licenses;

(3) whether the issuance of the preliminary injunction violated Section 27-19-103, MCA, and/or Section 27-19-201, MCA;

(4) whether the Department’s seizure of respondents’ machines was unlawful;

(5) whether an administrative hearing is required prior to seizure of allegedly illegal video poker machines;

(6) whether the court erred in admitting hearsay testimony into evidence and relying on that evidence;

(7) whether the court erred in adopting respondent Grenz’s proposed findings of fact. We note that the District Court found, and Grenz agrees that this appeal is moot as to him. We affirm.

By way of background, we briefly summarize some of the facts set forth in our recent decision Montana Tavern Association v. State of Montana (Mont. 1986), [224 Mont. 258,] 729 P.2d 1310, 43 St.Rep. 2180, a case with some bearing on the instant appeal. In 1985, the Montana Legislature passed the Video Draw Poker Machine Control Law, Sections 23-5-601 through -615, MCA, which legalizes the operation of electronic video draw poker machines in Montana. Section 23-5-606, MCA, provides a lengthy, detailed list of specifications required to license video poker machines. Section 23-5-612(2), MCA, provides a grandfather clause:

“A used video draw poker machine may be licensed under Subsection (1) without meeting the requirements of 23-5-606 (4)(j), (4)(k), and (4)(o) if the applicant for licensure can establish to the satisfaction of the department that, on the date of application, he owns or possesses a machine which was owned or operated in the state prior to February 3, 1984. A license issued under this subsection expires 1 year from the date of issuance or on July 1, 1987, whichever occurs first.”

In June 1985, the Montana Tavern Association and several tavern owners filed a complaint to enjoin the Department from enforcing certain emergency administrative rules which the Department had adopted regarding the poker machines. The Silver Bow County District Court granted those plaintiffs a temporary restraining order. The court later issued preliminary and final injunctions which, along with the restraining order, had the following effects; (1) agreed that the grandfather clause could be construed in two ways, i.e., as authorizing the licensure of (i) all used poker machines in operation before February 3, 1984, or (ii) used poker machines in operation before February 3, 1984, and meeting all the specifications of Section 23-5-606, MCA, except subsections (4)(j), (4)(k), and (4)(o); (2) rejected the second construction listed above; (3) enjoined the Department from enforcing the video poker machine law and its administrative rules so as to deny licenses to the plaintiffs for used machines owned and operated before February 3, 1984; (4) ordered that the machines had to meet certain criteria in the restraining order, along with the statutory provisions and administrative rules not in conflict with the restraining order, in order to be licensed; (5) provided that “. . . county or city license receipts, bills of sale . . . will be sufficient to establish ownership or operation of a used machine on or before February 3, 1984.”

Each of the respondents owned at least one video poker machine. Each testified that he had purchased his machine prior to 1984. The applications for state licenses for poker machines ask for the serial number of the machine. These numbers are usually stamped on a metal plate which is affixed to the exterior of the machine. None of the respondents’ machines had a metal plate with a manufacturer’s serial number. Buelow testified that the distributor removed the plate and marked a number on his machine with a marking pen. On his application for a license, Buelow listed the handwritten number from the machine as the serial number. Grenz’s license application listed a number from the machine’s logic board as the machine’s serial number. A logic board is an internal component of the machine which carries the electronic program and is easily interchangeable between different machines. Young’s application listed a number from the inside of his machine as the serial number. The Department, laboring under the Silver Bow County District Court injunction, issued state licenses to each of the three respondents for their poker machines.

Subsequently, the Department determined that the respondents’ applications listed machine serial numbers which were identical to numbers on other poker machine license applications. In November 1985, Department officials traveled to Miles City to investigate the machines of Buelow and Grenz. On November 4, 1985, the Department officials seized two of respondent Grenz’s poker machines from his place of business. Grenz showed the officials a 1981 or 1982 city license and a canceled check in an attempt to prove that he owned the machines prior to 1984. On November 5, 1985, Department officials seized Buelow’s machine at his bar in Miles City. Buelow testified that he informed the officials that he had evidence showing he owned the machine prior to 1984. The evidence included past city licenses for the machine and his canceled check paying for the machine in 1980. Also on November 5, 1985, the officials traveled to Alzada, Montana and seized respondent Young’s poker machine from his bar. Young was not present and had no opportunity prior to the seizure to prove that he owned the machine before 1984.

Shortly after the seizures, each respondent filed an affidavit with the Custer County District Court swearing that he had owned his machine or machines prior to February 3, 1984. Each requested the court to issue a temporary restraining order (TRO). On November 5, and in Young’s case on November 8, the court issued a TRO restraining the Department from seizing the machines and ordering their return.

On November 14, 1985, the court held a hearing on whether to quash or continue the TRO. Buelow, Grenz and Young all presented evidence (canceled checks, city licenses, or witness testimony) showing that they owned their machines prior to 1984. Two witnesses testified, over a hearsay objection, that a Department employee named Cathy advised them over the phone that handwritten or “logic board” numbers would suffice on their license applications. One of these witnesses had relied on this advice in helping both Buelow and Grenz fill out their applications.

In December 1985, the court permanently enjoined the Department from seizing the machines and from conducting a hearing on the ownership and licensing of the machines. Among other things, the court found (1) that each of the respondents owned his machine prior to 1984; (2) that the seizures of the machines were unlawful; (3) that administrative hearings were required before the Department could seize previously licensed poker machines; (4) that the respondents’ machines were entitled to state licenses; (5) that a Department official advised Grenz he could use a “logic board” number on his application; and (6) that the Grenz case had apparently become moot because Grenz obtained a duplicate serial number from the manufacturer thereby satisfying the Department’s rules on ownership. This appeal followed.

On December 11, 1986, this Court handed down its decision in Montana Tavern Association v. State of Montana (Mont. 1986), [224 Mont. 238,] 729 P.2d 1310, 43 St.Rep. 2180. That appeal involved the Silver Bow County action mentioned previously wherein the Silver Bow County District Court enjoined the Department from enforcing its administrative rules so as to deny the plaintiffs the right to license poker machines owned and operated before February 3, 1984. We upheld the District Court’s ruling interpreting Section 23-5-612(2), MCA, as authorizing the licensure of used video poker machines in operation before February 3, 1984. We also specifically affirmed the court’s injunction barring the Department from enforcing its administrative rules to the detriment of the plaintiffs and others similarly situated (such as the respondents here). The Montana Tavern Association case bears heavily upon our decision today.

The first issue is whether the Custer County District Court erred in granting injunctive relief without a written application or petition from the respondents. Section 27-19-301(1), MCA, states that,

“No preliminary injunction may be issued without reasonable notice to the adverse party of the time and place of the making of the application therefor.”

We find no Montana statute that requires a party to submit a formal, written application or petition for an injunction. Moreover, the record demonstrates that the Department had notice of the respondents’ claims and the nature of the controversy from the day the machines were seized (also the day the TRO was issued). Therefore, we find no error under this issue.

The second issue is whether the court erred in implicitly finding that the machines of respondents Buelow and Young were entitled to state licenses. In June 1985, the Silver Bow County District Court, acting in the Montana Tavern Association case, set forth the controlling licensing criteria for the Department to use. The most important element in that criteria is that the used machine must be a machine owned or operated in the state on or prior to February 3, 1984. That element is the bone of contention. The Department does not contend that the respondents’ machines fail to meet the other requirements. The Department does complain that the machines do not have a serial number stamped onto a metal plate and affixed permanently onto the machine. Under the Montana Tavern Association case, affirmed by this Court, that complaint is irrelevant. Under that case, and the Silver Bow County District Court order, the dispositive inquiry is whether the machines were owned or operated prior to February 3, 1984. The District Court here found that the respondents all owned their machines prior to February 3, 1984. The record reveals substantial evidence to support that finding. Therefore, we hold that the court did not err in finding that respondents were entitled to licenses.

The third issue is whether the court violated Section 27-19-103, MCA, and/or Section 27-19-201, MCA, in issuing the TRO and injunction. The Department first charges that respondents failed to show they were entitled to an injunction under Section 27-19-201, MCA. That statute sets forth certain circumstances which will justify the issuance of an injunction. The undisputed evidence before the District Court tended to show that the seizure of the machines would cause irreparable loss of business to the respondents. The District Court cited that evidence in its order and, under Section 27-19-201(2), MCA, that evidence was sufficient to warrant the issuance of an injunction.

The Department also charges that Section 27-19-103(4) and (6), MCA, prohibited the court from issuing an injunction in this case. Those subsections provide that an injunction cannot be granted:

“(4) to prevent the execution of a public statute by officers of the law for the public benefit;
“(6) to prevent the exercise of a public or private office, in a lawful manner, by the person in possession; . . .”

Our resolution of the second issue is also determinative of this issue. Given that all the machines here in question were owned and operated before February 3, 1984, those machines were entitled to state licenses. Therefore, when the Department seized those legally licensed machines, the Department was not executing a public statute nor was it executing a public office in a lawful manner. Thus, the issuance of the injunction did not violate Section 27-19-103, MCA.

We hold that the District Court did not abuse its discretion in issuing the injunction. We decline to address the other issues raised on appeal.

Affirmed.

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


text:
    BOZEMAN DEACONESS HOSPITAL, Petitioner and Appellant, v. In re the matter of the ESTATE OF OSCAR ROSENBERG, Deceased, Defendant and Respondent.
    No. 86-331.
    Submitted Dec. 2, 1986.
    Decided Feb. 3, 1987.
    As Corrected March 20, 1987.
    731 P.2d 1305.

      Morrow, Sedivy & Bennett, Edmund P. Sedivy, Jr. argued, Bozeman, for petitioner and appellant.
    Larry Moran argued, Bozeman, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Petitioner Bozeman Deaconess Hospital appeals the April 21, 1986, order of the Eighteenth Judicial District Court awarding summary judgment in favor of the respondent. We affirm.

This case is an action filed by the hospital against the estate of Oscar Rosenberg seeking payment of $11,583.05 plus interest for hospital services provided to Rosenberg prior to his death.

Oscar Rosenberg was admitted to the Bozeman Deaconess Hospital Extended Care Facility in 1976. In October of 1980, Rosenberg nearly drowned in a bathtub at the facility. Complications arising from the accident resulted in Rosenberg’s death November 4, 1980. Elwin Kundert, Rosenberg’s nephew, who had power of attorney for Rosenberg since 1975, was appointed personal representative.

Two hospital bills amounting to nearly $28,000 were sent to Kundert’s address on November 9, 1980. The hospital business office manager’s affidavit states that Kundert was in the business office several times during the two months following Rosenberg’s death to receive additional copies of the bills. Kundert admits that he received the hospital bills shortly after Rosenberg’s death.

Publication of Notice to Creditors began on December 2, 1980. None of the creditors filed formal creditor’s claim forms; rather they sent their bills to Kundert. Kundert paid all creditors except the hospital.

Section 72-3-805, MCA, provides that a claim against the estate is disallowed if the personal representative fails to take action on the claim for 60 days after the time for original presentation of the claim has expired. In this case, Kundert took no action on the hospi~fal’s bills. However, the hospital apparently believed Kundert planned on paying the bills because he had visited theJipspifai business office several times to make sure he had affithd bills and said nothing about denying, payment of any claim.

When Kundert failed to'hotify^the "hospital within 60 days after the time for original claim expired,'presentation of the bills, the hospital had another 60 days to petition the Court to challenge the dis-allowance pursuant to Section 72-3-805, MCA. The hospital did not meet this deadline. _______ __ ___ _

Medicare covered $17,307 of Rosenberg’s $27,290 hospital bill. The remainder, $9,983, was listed by Kundert as an expense of last illness on estate tax forms filed with the State of Montana and the IRS. This representation conflicts with Kundert’s failure to pay the hospital.

Kundert, representing the estate, filed a wrongful death action on June 17, 1982, against the hospital alleging the hospital’s negligence caused Rosenberg’s death. The hospital failed to counterclaim for expenses incurred in treating Rosenberg. The jury found the hospital 100% negligent in causing Rosenberg’s death and awarded $31,247 to the estate.

On February 16, 1984, the hospital filed a formal creditor’s claim in district court against the estate for $11,583. The estate filed a denial of the claim on March 1, 1984, which asserted such claim was barred by collateral estoppel and statute of limitation. After denial of its claim, the hospital petitioned district court for allowance of the claim.

Following discovery, both parties moved for summary judgment. The court awarded summary judgment in favor of the estate, finding that the hospital’s claim was barred for failure to meet the time limits contained in Section 72-3-805. In the court’s supporting memorandum, the court noted that non-action on a claim by a personal representative conclusively establishes disallowance after 60 days from the time for original presentation of the claim has expired and estoppel may not run against the personal representative. One week later, Northwestern Bank v. Coppedge (Mont. 1986), [219 Mont. 473,] 713 P.2d 523, 43 St.Rep. 102, held that an estate may be es-topped from raising a non-claim defense if the estate made representations to a creditor that a claim need not be filed.

Following the Coppedge decision, the hospital filed a motion for reconsideration and to amend judgment. The District Court denied the motion and this appeal followed. tal’s bills. However, the hospital apparently believed Kundert planned on paying the bills because he had visited the hospital business office several times to make sure he had all the bills and said nothing about denying payment of any claim,

When Kundert failed to notify the hospital within 60 days after the time for original presentation of the claim expired, the hospital had another 60 days to petition the court to challenge the disallowance pursuant to Section 72-3-805, MCA. The hospital did not meet this deadline.

Place this slicker in Voi. 225 Montana Reports at page 234.

On appeal, we address the following issue:

1) Whether the District Court erred in granting summary judgment in favor of the estate?

The statute at the center of the parties’ dispute is Section 72-3-805(1), MCA, which provides:

“As to claims presented in the manner described in 72-3-804 within the time limit prescribed in 72-3-803, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to á claimant of action on his claim for 60 days after the time for original presentation of the claim has expired has the effect of a notice of disallowance.”

In this case, Kundert received copies of the hospital bills. There is no dispute that the hospital properly filed a claim. The estate contends Section 72-3-805, MCA, is a non-claim statute not subject to equitable considerations. The hospital argues that the estate should be estopped from denying its claim in view of Kundert’s representations and subsequent acknowledgment of the debt on estate tax forms.

In Coppedge, supra, Northwestern Bank never filed a creditor’s claim with the estate nor did it commence a court proceeding to protect its claim. Instead, bank representatives negotiated with the estate’s attorneys for payment or renewal of the note owed the bank. In finding that an estoppel issue had been raised, this Court stated:

“Northwestern Bank contends and the trial judge found that the estate, by and through its attorneys, knew of the bank’s claim against the estate. Such knowledge, however, does not dispense with Northwestern Bank’s need to file a creditor’s claim. If Northwestern Bank can prove that the attorneys for the estate represented that because they knew of Northwestern Bank’s claim, no creditor’s claim need be filed and if the Bank relied on this representation, the estate could be estopped from raising Northwestern Bank’s failure to file a creditor’s claim as a defense. Norman v. State (1979), 182 Mont. 439, 443-444, 597 P.2d 715, 718. We therefore remand for a hearing to determine whether the estate, by or through its attorneys, represented to Bank that it need not file a creditor’s claim.”

713 P.2d 526-27, 43 St.Rep. 105.

Coppedge was issued the week following the District Court order granting summary judgment to the estate. On motion for reconsideration, a new judge assumed jurisdiction and affirmed the summary judgment finding insufficient facts to support estoppel. We agree that the facts do not raise the issue of estoppel and summary judgment was properly granted as a matter of law.

The elements of proof for equitable estoppel are:

1) false representation or concealment of facts;

2) made with actual/or constructive knowledge of the facts;

3) to a party without knowledge, or means of knowledge of the facts;

4) with intention or expectation that the party will rely on such representations;

5) the party does rely and act upon such representations;

6) causing prejudice to the party.

Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 42 St.Rep. 388.

The affidavit of the hospital business office manager states: “[Kundert] told me that he was handling Mr. Rosenberg’s estate and he needed copies for the estate so that the estate could pay the bill.” This is the only evidence produced by the hospital as to estoppel. Kundert’s deposition testimony is that he was undecided whether to pay the hospital bill at the time he received it. There is no evidence as to elements 1, 2, and 4, above set forth. Summary judgment against the hospital on the issue of estoppel was proper. Estoppel will be sustained only upon clear and convincing evidence. Kenneth D. Collins Agency v. Hagerott (Mont. 1984), [211 Mont. 303,] 684 P.2d 487, 41 St.Rep. 1375.

The hospital contends Kundert waived the statute of limitation on the claim by subsequent acknowledgment of the debt. Kundert listed the hospital bill as a medical expense on estate tax forms filed August 25, 1981, and as damages in the wrongful death suit filed in June, 1982.

Prior to our decision in Coppedge, supra, this Court strictly construed Montana’s non-claim statute relating to filing of creditor’s claims. Failure to meet the time limits for filing a claim forever barred such claim. Baker National Bank v. Henderson (1968), 151 Mont. 526, 445 P.2d 574. Coppedge carved out a single exception for equitable estoppel.

One of the underlying purposes of the Uniform Probate Code (UPC) listed in Section 72-1-102, MCA, is to “promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to its successors.” This purpose is clearly supported by the presumed disallowance provision in Section 72-3-805, MCA, and the non-claims bar in Section 72-3-803, MCA.

There is no provision in the UPC extending the time for filing or contesting claims based upon subsequent acknowledgment of debt. Section 72-3-802, MCA, does allow the personal representative to waive the limit with the consent of all successors. There is no evidence in this case that Kundert waived the time limit as to the hospital’s claim.

Contrary to the hospital’s assertion, Kundert’s subsequent acknowledgment of the hospital claim is not relevant for estoppel purposes. Kundert’s acknowledgment of the hospital claim occurred months after the time limit had run for contesting a claim, and his subsequent acknowledgment does not provide evidence as to his intent at the time he spoke with the hospital’s business office manager. There being no evidence to support the elements of estoppel, the presumed disallowance provision forever bars the hospital’s claim.

The District Court is affirmed.

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