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Siaperas v. Montana State Fund9/21/2004
, either. In Watson v. Seekins (1988), 234 Mont. 309, 763 P.2d 328, we considered whether a workers' compensation insurer may pro-rate the Social Security Disability offset provided in § 39-71-702(4), MCA (1995). Like this case,
he dispute is how much disability pay should be used to compute setoff: all of it or only part of it. The statute simply does not allow for Watson's formula to exclude a part of the entire award. The words are not there. The role of the Court is not to insert what has been omitted by the statute. Chennault v. Sager (1980), 187 Mont. 455, 610 P.2d 173. Had the legislature intended an exemption, exclusion, or any other formula to apply to reduce the amount subject to setoff, it is reasonable to assume that it would have expressed it in the statute.
Watson , 234 Mont. at 315, 763 P.2d at 332.
The legislature fixed the setoff amount at 50 percent of the Social Security Disability benefits, so the plain meaning of the statute prohibits an insurer from reducing the offset to increase the payments. We hold that § 39-71-702(4), MCA (1995), does not allow any reductions or modifications to the proportion of the Social Security offset.
Section 39-71-741(1)(c), MCA (1995), allows a claimant to obtain a lump sum payment from an insurer in a workers' compensation case without the approval of the insurer, but only in limited circumstances. The statute allows a lump sum payment "if a claimant and an insurer dispute the initial compensability of an injury and there is a reasonable dispute over compensability." Montana State Fund, however, did not dispute the initial compensability of the injury and paid benefits to Siaperas upon her claim. Further, Montana State Fund does not dispute the level of her compensability. It received knowledge of the underpayment seven years after the injury and mere months before the trial and demonstrated no unwillingness to pay.
The statute also allows a lump sum payment in permanent total disability cases only when the worker demonstrates a financial need that "relates to the necessities of life; an accumulation of debt incurred prior to the injury ; or a self-employment venture that is considered feasible under criteria set forth by the department;" or "arises subsequent to the date of injury or arises because of reduced income as a result of the injury." Section 39-71741(1)(c), MCA (1995). Siaperas claims her attorney fees are necessities of life. The ordinary meaning of the term "necessities of life" includes such things as food, clothing, shelter and medical care. Attorney fees fail to rise to that level of exigency. We affirm the Workers' Compensation Court's decision to deny the request for a lump sum payment.
Section 39-71-2907, MCA (1995), gives a workers' compensation judge the authority to assess a penalty against an insurer for, inter alia , unreasonably delaying or refusing to make payments. Until the eve of trial, Siaperas had not requested her $14.77 increase in weekly workers' compensation benefits. Upon Siaperas notifying Montana State Fund of its liability for further payments, it did not delay payment of the $14.77 weekly increase. In the absence of a delay, the statute does not apply. Further, without a request, one cannot refuse that request. Montana State Fund never refused to make any payments. Again, under the plain meaning of the statute, it has no application. For the foregoing reasons, we deny the claims for a penalty.
Siaperas cannot maintain a claim for attorney fees under § 39-71-611, MCA (1995), because the statute requires the insurer initially deny the claim. Montana State Fund never denied her claim, so this statute likewise does not apply
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