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Briney v. Pacific Employers Insurance Company6/24/1997
g a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of the order granting a claimant compensation benefits, may be increased by the workers' compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers' compensation judge. . ..
The insurer has not responded on appeal to Briney's contention that he is entitled to costs, attorney fees, or the statutory penalty.
In Holton, there was no issue regarding claimant's injury or that it was related to his job . After he reached maximum medical healing, his own physician rated the degree of his permanent physical impairment at five percent. The insurer's physician rated his impairment at ten percent. It does not appear from the reported case that there was any disagreement about whether either of those ratings were a result of his job-related injury. However, the insurer refused to pay benefits based on either impairment rating without an agreement by claimant to settle his total claim for disability benefits. We held that where there was no legitimate basis for disagreeing that claimant had become physically impaired due to his work-related injury, and where the only question was the amount of disability benefits to which he was entitled, the insurer acted unreasonably as a matter of law when it withheld undisputed benefits pending a hearing on disputed benefits.
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 by Holton.
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).
This case is reversed and remanded to the Workers' Compensation Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, LEAPHART and GRAY concur.
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