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Caekaert v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

October 12, 1995

BRAND E. CAEKAERT Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent.

          ORDER AWARDING ATTORNEY FEES AND COSTS

         Summary:

         On remand from the Supreme Court's reversal in Caekaert v. State Compensation Insurance Fund, 286 Mont. 105 (1994), the Workers' Compensation Court adjudicated respondent's liability for costs and attorney fees.

         Held:

         Costs in the Workers' Compensation Court are not conditioned upon a finding of unreasonableness and are due claimant. Though the Occupational Disease Act contains no provision for award of attorneys fees in the Workers' Compensation Court, this Court, as affirmed by the Supreme Court, has previously found the attorney fee provisions of the Workers' Compensation Act applicable to occupational disease cases litigated in the Workers' Compensation Court. Based on careful review of the information possessed by State Fund when it denied claimant temporary total disability benefits, the Court finds the insurer acted unreasonably because medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position was unreasonable, entitling claimant to attorney fees under section 39-71-611, MCA (1987), as incorporated into the Occupational Disease Act through section 39-72-402(1), MCA (1987) and judicial decision.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: sections 39-71-611 and -612, MCA (1987). Costs in the Workers' Compensation Court are not conditioned upon a finding of unreasonableness.
Costs: WCC Costs. Costs in the Workers' Compensation Court are not conditioned upon a finding of unreasonableness. See sections 39-71 -611(1) and -612(1), MCA (1987).
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-611, MCA (1987). Though the Occupational Disease Act contains no express provision for award of attorneys fees in the Workers' Compensation Court, the attorney fee provisions of the Workers' Compensation Act, sections 39-71-611 and -612, MCA (1987) are applicable to occupational disease cases litigated in the Workers' Compensation Court through section 39-72-402(1), MCA (1987) and judicial decision.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-72-402(1), MCA (1987). Though the Occupational Disease Act contains no express provision for award of attorneys fees in the Workers' Compensation Court, the attorney fee provisions of the Workers' Compensation Act, sections 39-71-611 and -612, MCA (1987) are applicable to occupational disease cases litigated in the Workers' Compensation Court through section 39-72-402(1), MCA (1987) and judicial decision.
Attorney Fees: Occupational Disease Cases. Though the Occupational Disease Act contains no express provision for award of attorneys fees in the Workers' Compensation Court, the attorney fee provisions of the Workers' Compensation Act, sections 39-71-611 and -612, MCA (1987) are applicable to occupational disease cases litigated in the Workers' Compensation Court through section 39-72-402(1), MCA (1987) and judicial decision.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71 -611, MCA (1987). Claims examiners and attorneys are not qualified to make medical judgments; where medical questions are involved, it is unreasonable for the insurer to disregard uncontroverted medical opinion.
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-611, MCA (1987). Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position entitled claimant to attorney fees.
Attorney Fees: Occupational Disease Cases. Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position entitled claimant to attorney fees.
Attorney Fees: Unreasonable Denial or Delay of Benefits. Claims examiners and attorneys are not qualified to make medical judgments; where medical questions are involved, it is unreasonable for the insurer to disregard uncontroverted medical opinion.
Attorney Fees: Unreasonable Denial or Delay of Benefits. Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position entitled claimant to attorney fees.
Attorney Fees: Cases Awarded. Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position entitled claimant to attorney fees.
Penalties: Insurers. Claims examiners and attorneys are not qualified to make medical judgments; where medical questions are involved, it is unreasonable for the insurer to disregard uncontroverted medical opinion.
Penalties: Insurers. Insurer acted unreasonably where medical opinion did not provide affirmative proof of an aggravation by claimant's post-injury work, but were equivocal. Proceeding to trial without independent medical support for the insurer's position entitled claimant to attorney fees.

         Over two years ago, petitioner, Brand E. Caekaert (claimant), commenced this action seeking medical and temporary total disability benefits on account of his carpal tunnel syndrome.

         His carpal tunnel syndrome was diagnosed in 1988 and he underwent bilateral carpal tunnel releases that year. He filed a CLAM FOR COMPENSATION and that claim was accepted by respondent, State Fund, under the Occupational Disease Act. The State Fund paid for his 1988 surgeries and paid temporary total disability benefits during his convalescence.

         On December 11, 1992, he had a second carpal tunnel surgery on his right hand. On February 12, 1993, he underwent a similar second surgery on his left hand. The State Fund, however, denied liability for the additional surgeries and for temporary total disability benefits during the additional periods of convalescence. It took the position that claimant's work butchering chickens had aggravated his syndrome, thereby relieving it from further liability. It also argued that claimant's testimony in a prior case judicially estopped him from asserting a claim for further benefits.

         After trial this Court determined that claimant's work butchering chickens had aggravated his carpal tunnel syndrome and therefore ended the State Fund's liability for both medical and temporary total disability benefits. I further determined that claimant was judicially estopped from making any claim for temporary total disability benefits on account of his testimony in another court case. In that case he had testified that he was totally disabled on account of a back injury. Having denied claimant's substantive prayers, I also denied his request for attorney fees, costs and a penalty.

         In Caekaert v. State Compensation Ins. Fund, 268 Mont. 105, 885 P.2d 495 (1994), the Supreme Court reversed and remanded. The Court held that my decision was not supported by substantial evidence. It pointed out that uncontroverted testimony by Dr. Jeffrey Hansen, claimant's treating physician, unequivocally established that his need for additional surgery was due to his 1988 condition and not to any subsequent permanent aggravation of that condition. It remanded "for the limited purpose of considering Caekaert's claim for attorney fees, costs, and the statutory penalty, and the duration of any temporary total disability benefits to which Caekaert is entitled." 268 Mont. at 117, 885 P.2d at 503.

         The issues on remand have been narrowed by the parties. They have agreed to the amount due in temporary total disability benefits. In addition, claimant is not pursuing a penalty. Thus, the only unresolved issues are claimant's entitlement to costs and attorney fees.

         Costs

         Claimant filed his MEMORANDUM OF COSTS AND DISBURSEMENTS on December 12, 1994. The State Fund filed no objections to the costs itemized in the memorandum. Its only mention of costs in its brief is a statement that claimant is not entitled to either attorney fees or costs because the State Fund did not act unreasonably. (RESPONDENT'S REPLY BRIEF at 12.) Costs are not conditioned upon a finding of unreasonableness. §§ 39-71-611(1) and -612(1), MCA (1987). Therefore, claimant is entitled to his costs in the sum of $1007.65.

         Attorney Fees

         This is an occupational disease case. The only provision for attorney fees in the Occupational Disease Act is section 39-72-613, MCA. That provision, however, applies only to cases in which a hearing has been held by the Department of Labor; it does not apply to occupational disease cases over which this Court has original jurisdiction.

         However, in Vernon L. Ingebretson V. Louisiana-Pacific Corporation, WCC No. 9403-7030 (December 14, 1994), which was an occupational disease case commenced directly in this Court, I held that the attorney fees provisions codified in the Workers' Compensation Act apply to occupational disease cases over which this Court has original jurisdiction. That holding was based on section 39-72-402(1), MCA, which is found in the Occupational Disease Act. The section provides that the "practice and procedure prescribed in the Workers' Compensation Act ...


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