ORDER DENYING PENALTY AND
SETTING SCHEDULE FOR AWARDING ATTORNEY FEES
On remand from the Supreme Court, the Workers'
Compensation Court was called upon the determine whether a
penalty should issue and to set attorneys fees.
Where either the material facts or the law applicable to a
case are reasonably debatable, the parties are entitled to
present the case to the WCC and no penalty shall attach to
that presentation. A penalty may also be appropriate when the
evidence at trial is such that a reasonable insurer would
accept liability and pay the benefits requested without
awaiting decision of the WCC. In this case, the evidence
before and after trial were not so neatly framed in the
claimant's favor so as to make continued dispute by the
Penalties: Insurers. Where either the
material facts or the law applicable to a case are reasonably
debatable, the parties are entitled to present the case to
the WCC and no penalty shall attach to that presentation. A
penalty may also be appropriate when the evidence at trial is
such that a reasonable insurer would accept liability and pay
the benefits requested without awaiting decision of the WCC.
In this case, the evidence before and after trial were not so
neatly framed in the claimant's favor so as to make
continued dispute by the insurer unreasonable.
case is on remand from the Supreme Court following reversal
of this Court's decision denying claimant's request
for permanent partial disability benefits with respect to a
1981 back injury. Relying on testimony which I construed as
proving that claimant suffered a number of subsequent
aggravations to his back condition, I held that the insurer
correctly attributed his current condition to an occupational
disease (repetitive trauma) rather than his 1981 injury.
Citing Walker v. United Parcel Service, 262 Mont.
450, 865 P.2d 113 (1993), the Supreme Court disagreed,
holding that the insurer failed to sustain its burden of
proving that subsequent injuries materially aggravated his
original Since this case involves a pre-1987 injury, the
Supreme Court determined that claimant is entitled to
attorney fees and remanded for this Court to fix the amount
of the fees. With respect to claimant's request for a
penalty, it concluded as follows:
Although we hold that, after presentation of all the
evidence, the defendant in this case has not satisfied its
burden of proving by a preponderance of evidence that
Briney's injury was caused by some event other than the
accident he was involved in on May 24, 1981, the facts in
this case were not beyond dispute prior to presentation of
evidence by both parties. Whether,
based on the facts in this case, Briney is entitled to a
statutory penalty is a question to be decided, in the first
instance, by the Workers' Compensation Court pursuant to
the plain language of § 39-71-2907, MCA (1979). We
are aware, as a practical matter, that the same Workers'
Compensation Court, which previously decided in favor of the
insurer on the merits of this case, is unlikely to find,
following our remand, that the insurer acted unreasonably, in
spite of our conclusion that no substantial evidence
supported the insurer's theory. However, we cannot
conclude as a matter of law, based on the posture of this
case at the time the trial commenced, that there was no
dispute regarding Briney's entitlement to benefits and
that his right to statutory penalty is, therefore, controlled
For these reasons, we conclude that pursuant to §
39-71-611, MCA (1979), Briney is entitled to an award of
attorney fees and costs in amounts to be determined by the
Workers' Compensation Court. Furthermore, following
remand, the Workers' Compensation Court is to determine,
based on the entire record, whether the insurer acted
unreasonably when it denied Briney's claim for partial
disability benefits and whether he is, therefore, entitled to
a statutory penalty pursuant to § 39-71-2907, MCA
(1979). [Italics added.]
(June 24, 1997 Slip Op. 95-449 at 15.)
foregoing sets out the task for the Court upon remand.
I feel compelled to comment on the Supreme Court's view
that I should decide whether a penalty is appropriate even
though it is expressly skeptical that I will award a penalty.
If I for an instant believed that I could not be objective in
making such decision, I would not hesitate to recuse myself
and call in a district judge to decide the matter. In a prior
case, I awarded a penalty despite the fact that I decided the
case in the insurer's favor and was then reversed by the
Supreme Court. Caekaert v. State Compensation Ins.
Fund, 268 Mont. 105, 885 P.2d 495 (1994). I recused
myself in Kuzara v. State Fund, WCC No. 9502-7246R1,
following reversal of my decision granting a directed verdict
because I had made a credibility determination in granting
the motion and believed that it would be difficult for me to
objectively consider opposing evidence upon a retrial of the
case. Kuzara v. State Fund, 279 Mont. 223, 928 P.2d
136 (1996). I have invoked the phrase "mea
culpa" in response to a motion which correctly
pointed out that I had overlooked a critical matter.
Burglund v. Liberty Mutual Northwest Ins. Co., WCC
No. 9303-6721, Order Withdrawing Findings of Fact,
Conclusions of Law and Judgment, decided March 1, 1995. I
have written draft opinions finding for one party, then upon
further reflection reached a different result.
courts are "institutions", they are staffed by
women and men who are not only fallible but who may
reasonably disagree among themselves. I take pride in my
ability to admit my mistakes and to change my mind when
logic, further reflection, and/or Supreme Court decisions
persuade me I should do so.
the matter at hand.
read the decision on appeal, the Supreme Court agrees that
prior to the trial the "facts in this case were
not beyond dispute." I have previously held that where
either the material facts or the law applicable to the case
is reasonably debatable, the parties are entitled to present
the case to this Court and no penalty shall attach to that
presentation. Connery v. Liberty Northwest Ins.
Corp., WCC No. 9602-7507, Findings of Fact, Conclusions
of Law and Judgment, (7/22/96); Kuykendall v. Liberty
Northwest, WCC No. 9611-7646, Findings of Fact,
Conclusions of Law and Judgment, (3/17/97). I agree with ...