Submitted: September 29, 2005
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
JEREMIAH SHEA JUDGE.
The petitioner petitioned for a lump-sum conversion of his
lifetime expectancy of permanent total disability benefits.
Conversion of lifetime permanent total disability benefits to
a lump sum is granted. The petitioner demonstrated financial
need that relates to the necessities of life. The petitioner
and his wife provide a home for themselves, two of their
adult children, and his elderly, disabled mother. The
petitioner and his family currently reside in a multilevel
rental home that is difficult for both the petitioner and his
mother to navigate because of the stairs. The petitioner and
his wife demonstrated that a lump sum would enable them to
build or buy and modify a home which would accommodate the
petitioner's and his mother's disabilities. The
petitioner, with the assistance of his wife, is competent to
handle his financial affairs. The petitioner and his wife
have thus far managed their financial affairs with limited
resources and setbacks beyond their control. However, it is
apparent from the testimony that the petitioner and his
wife's ability to manage their resources is being heavily
taxed by their need to borrow against the petitioner's
wife's retirement plan and that their ability to continue
to borrow against this retirement plan is nearly exhausted.
Although the Court might not otherwise exercise jurisdiction
over a dispute regarding the total conversion of permanent
total disability benefits pursuant to section
39-71-741(2)(d), MCA (1989), the parties in this case have
agreed that this Court may properly exercise jurisdiction
over this dispute pursuant to section 39-71-2905, MCA (1989).
Benefits: Lump Sums: Generally. Where the
petitioner and his wife testified that they had been drawing
on the petitioner's wife's retirement to make ends
meet and that the petitioner and his disabled mother were
finding it increasingly difficult to live in the rental house
which did not accommodate their disabilities, the petitioner
demonstrated that a lump-sum conversion of his PTD benefits
was in his best interests.
Attorney Fees: Unreasonable Denial of
Benefits. Pursuant to the fourth factor set forth in
section 39-71-612, MCA (1989), a petitioner must demonstrate
that the award from the Workers' Compensation Court
exceeded the offer made to him pretrial in order to recover
attorney fees. When the record does not establish the value
of the settlement offer, the Court cannot speculate as to
whether the pretrial offer exceeded the award in making its
determination as to whether an award of attorney fees is
appropriate pursuant to section 39-71-612, MCA (1989).
The trial in this matter was held on September 29, 2005, in
Missoula, Montana. The petitioner, Gale Miller, was present
and represented by Mr. David W. Lauridsen. The respondent was
represented by Mr. Michael P. Heringer.
Exhibits: Exhibits 1 through 7 and Miller Deposition
Exhibits 1 through 11 were admitted without objection.
Witnesses and Depositions: The deposition of Gale
Miller was taken and submitted to the Court. Gale Miller and
Bette Miller were sworn and testified at trial.
Issues Presented: The Pretrial Order states the
following contested issues of law:
¶4a Whether the petitioner is entitled to a lump-sum
settlement of all his future permanent total disability
benefits pursuant to section 39-71-741, MCA (1989).
¶4b Whether the petitioner is entitled to costs and
attorney's fees, pursuant to section ...