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Briceno v. Cereal Food Processors11/19/1991
Submitted on briefs October 10, 1991.
Jesse Briceno appeals from an order of the Workers' Compensation Court denying his claim for continuing temporary total disability benefits and for a lump-sum payment of benefits. Nationwide Insurance Company cross-appeals on the issue of whether Briceno has proven that he suffered an industrial injury which resulted in a disability. We affirm in part and reverse and remand in part.
The issues are:
1. Did the Workers' Compensation Court err in concluding that Briceno's condition is causally related to the injury received at Cereal Food Processors, Inc.?
2. Did the court err in ruling that Briceno was not entitled to continuing total disability benefits on August 7, 1989, and thereafter during the retraining which he is pursuing?
3. Did the court err in failing to award Briceno any lump-sum payment of benefits and a 20 percent increase in his award pursuant to § 39-71-2907, MCA (1985)?
The parties stipulated that Jesse Briceno suffered a back injury on June 17, 1986, while working for Cereal Food Processors, Inc. (Cereal Food), and that this injury was an aggravation of a previous injury on December 4, 1985. Nationwide Insurance Company (Nationwide) is the insurance carrier for Cereal Food.
Cereal Food accepted liability for Briceno's injury, and Nationwide paid him temporary total disability benefits from December 9, 1988, through August 7, 1989. At that time, Nationwide converted Briceno's benefits to partial disability benefits, after being advised by Briceno's doctor that he had reached maximum medical healing and was approved for several alternate job positions. Later that month, Briceno enrolled as a student at Eastern Montana College. He initially obtained funds for this endeavor from Project Challenge-Work Again, through the AFL-CIO, but since April 1990, he has been enrolled under a State of Montana Department of Social and Rehabilitation Services written rehabilitation program. He is pursuing a bachelor of science degree in human services.
Briceno filed a petition with the Workers' Compensation Court alleging that he is entitled to continued temporary total disability benefits during retraining and asking for a lump-sum conversion of a portion of the benefits awarded to him. The Workers' Compensation Court ruled that Briceno's condition is causally related to the injury he received at Cereal Food. It also ruled that conversion of Briceno's benefits from temporary total to permanent partial was proper because Briceno's doctor had determined that he had reached maximum medical healing and could return to work in a full-time position as a management trainee, material clerk, inventory clerk, or keypunch operator, and Briceno had been given proper notice of the conversion of his benefits. The court ruled that Briceno is not entitled to receive temporary total disability benefits during retraining, nor is he entitled to receive a lump-sum payment or a penalty for unreasonable delay or refusal to pay pursuant to § 39-71-2907, MCA (1985). It awarded Briceno his attorney fees and costs for proving a causal relationship between his condition and his injury at Cereal Food.
I
Did the Workers' Compensation Court err in concluding that Briceno's condition is causally related to the injury received at Cereal Food Processors Inc.?
The Workers' Compensation Court concluded that
" he evidence indicates that when claimant began working with Cereal Foods or its predecessor in August 1978, his spine was already involved in a degenerative process. However, the injury which occurred when he li
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