*1 KOMEOTIS, KENNETH K. Appellant, Claimant FENCING, Compensa WILLIAMSON Employer, State Respondent. Fund, tion Defendant Insurance No. 87-324. Submitted on Briefs March 1988. Decided June 756 P.2d 1153.

Bottomly Offices, Bottomly, Falls, Law Joe Great for claimant and appellant.

Marra, Wenz, Marra, Hopkins, Falls, & Johnson Thomas A. Great respondent. for defendant and Opinion JUSTICE McDONOUGH delivered the of the Court.

This appears case appeal before us The for the second time. first involved the Compensation improper application Workers’ Court’s 39-71-741, MCA, of Section This amended 1985. Court re- versed the appeal lower court in holding the former the statute Fencing Komeotis v. Williamson applied could not be retroactively. (Mont. 1987), 298. The case remanded for of the applying determination sum issue Komeotis, the law as it injury. existed the time of the 736 P.2d at On Compensation applied remand the Workers’ Court the correct law and request denied the as well as claimant’s re- quest attorney for disability. ap- fees on of the issue The claimant peals this We decision. affirm.

The issues be stated as follows: (1) Compensation denying Did the Workers’ Court err request partial claimant’s for to a conversion of his benefits sum?

(2) Compensation denying Did the Workers’ Court err request attorney claimant’s prevailing fees for the issue of disability? claimant, Komeotis,

The Fencing for Mr. worked for Williamson years thirteen degenerative before arthritis in his elbows rendered incapable him performing job The State Com- his duties. former pensation (Fund) provided temporary disabil- Insurance Fund total ity benefits to of the enti- Mr. but contested conversion permanent disability petitioned tlement to benefits. Komeotis by Compensa- for determination issue the Workers’ adjudication tion Court. Prior of the issue the Fund liability. conceded petitioned partial weekly

Mr. Komeotis also conversion disa- bility $120,000. planned to benefits to a sum of Mr. Komeotis $110,000 spend purchase operation of that amount for the $10,000 property, remaining rental cover and the medical ex- penses surgery, for needed of a reliable vehicle. petition requested attorney The fees. issues also These were heard hearings before the examiner.

Expert testimony hearing taken at that Mr. revealed Kome- buy property financially Experts otis’s rental feasible. having responsibility property also testified that for the rental would begun experience lessen the severe Mr. Komeotis had since the disability. expert testimony onset of his re- also physical vealed that Mr. Komeotis’s and educational deficits would hamper rentals, ability his to care for the and that other vocational options might impact ease of Mr. Komeotis’s problems by testimony showing was lessened that friends family enterprise. would him manage the rental

After hearing the Workers’ Court reviewed the *3 transcript, exhibits, depositions. and The lower also consid- parties’ the proposed Findings ered of Fact and Conclusions of Law supporting and briefs. The court then that Mr. lower ruled Kome- $10,000 surgery otis entitled to sum of least to have purchase vehicle, and but denied Mr. sum re- Komeotis’s $110,000 quest operation prop- of for the and the rental erty. granted attorney The lower court also the fees for resolution $10,000 sum, attorney but refused fees for resolution of the disability issue. I.

ISSUE Court the Workers’ erred its findings severity depression. on the of his Mr. Komeotis misapplied also contends best interest test lower court to the financial facts of the case.

First, regard depression, to Mr. Komeotis’s the Workers’ Com- pensation Court found that: depres- Wagner

“Both Dr. claimant’s and Jeff Baker testified as to outlet, reasoning that sort of constructive sion and need for some deep-rooted ethic and strong work from claimant’s this need stems he needs to himself as a man’ good about sense that in order to ‘feel family.” in his primary bread winner be the concluded: finding the lower court From this any probative evidence of presented here has not “The claimant preference peri- for age or reasons sufficient to override health depression payments. Testimony presented as to claimant’s odic primary by again becoming the to maintain his ‘manhood’ need family. Despite attempt to charac- breadwinner in his Mr. Baker’s ‘suicidal,’ no evidence that depression terize this the Court found any hard- depression proportions beyond normal this reached what provide they longer able to working person would feel when are no by [Counseling . and rehabilita- for themselves their own efforts.. . depression] than appropriate tion would seem more alleviate the [to simply setting up apartment house owner.” as an the lower Komeotis contends that we should reverse because by supported court’s characterization of his is not record. presented

The essential conclusion here is that the evidence payments. preference periodic was insufficient to override the (Mont. 1981), [_ Mont. _,] See Polich v. Whalen’s O.K. Tire A review of the severity reveals the lower court have understated supports provide Mr. finding court’s could that rehabilitation and type activity alleviate his Komeotis with the which would Komeotis’s finding, Given this the evidence of Mr. deficits, Compensation Court we hold that the Workers’ by Komeotis failed concluding acted within its discretion that Mr. payments. presumption periodic to overcome the by its discretion We also hold that the lower court acted within Legowik v. in Polich refusing to follow the results reached Montgomery Ward cases where lump sum benefits grant this Court affirmed the decision to Polich, Legowik re here to health we are asked reasons. Unlike lower though the verse the finder of fact sum issue even on a *4 itself favorably to familiarize court is more situated than this Court his or applicant, to consider surrounding with the the circumstances granting needs, probably her will follow action and the results which Polich, 1164. Further- denying application. or P.2d at the See 634 344 claimant, the of the

more, health needs to the immediate addition gener- of the claimant best interests lower court must consider the public. Utick family, of his ally, as well as the best interests 739, weighing In P.2d v. 593 Utick Utick, 593 interests, periodic benefits. presumption favors these P.2d at 741. case, granting the sum weighed against

In other factors this Thus, its discre- court acted within request. we hold that the lower Legowik, also hold Utick and Polich. We by refusing follow tion particular circumstances inapplicable as that case is limited to therein, in Issue 1. this contention appear which and we affirm as to misinterpreted argues that the lower Mr. Komeotis also Mr, Specifically, Komeotis test. dictates of the financial best interest will disclosing that inflation presented he argues that the evidence have been ac- in the future should the value of his benefits lower weight. corded more grant sum because court’s decision to not

The lower with this need” is consistent inflation would cause a future “pressing made. dispositions arguments were previous where similar Court’s (Mont. 194,] Transport 1986), 714 Belton v. Carlson Mont. See [220 (Mont. No. 2 LaVe v. School District 286; 43 1986), 52,] St.Rep. 165. Mont. [220 proposal is cou- where a sound business Mr. Komeotis asserts that pled demonstrating benefits from with evidence health granting a conversion, against justification the rule inflation finding the lack apply. lump sum does not addition claim- need, pressing court considered of a financial lower concluding that the ra- physical ant’s and mental disabilities before rejecting the Belton and LaVe authority for provided tionale from Thus, acted lower court request. we are convinced the LaVe, distinguish Belton by refusing its within discretion and the balance of Issue 1 is affirmed. II.

ISSUE by not court erred of the granting request attorney fees for resolution decisions previous this Court’s issue. The lower court found that liability perma Lasar and Yearout controlled this issue because Yearout prior trial. See nent was conceded here (Mont. Painting 1986), Rainbow *5 (Mont. 1986), 1063; Lasar v. & Sons

St.Rep. Oftedal 352, agree the lower court St.Rep. 721 43 1239. We with disability judged com- an benefits later that there must be issue pensable pursuant to Section 39-71- for an award on such benefits Lasar, 612, 721 P.2d MCA. at 354. the rationale from Krause that (1982), 102, 458, applies

Sears Roebuck dis- 197 Mont. 641 P.2d tinguishes the instant case from Lasar and Yearout. The Fund re- Krause sponds distinguished the instant case that should be from discovery only shortly hearing because it was re- before that compelled vealed the facts which the Fund to concede issue, required proof and Mr. Komeotis to submit on the was not agree application issue. We and affirm the lower court’s Thus, Lasar. both issues are affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRI- SON, WEBER and GULBRANDSON concur. HUNT, dissenting: JUSTICE

I majority’s dissent from the conclusion that the District Court did not refusing partial abuse its discretion when to award sum payments periodic payments to Mr. Komeotis. While are favored payments over granting when Compensation Workers’ benefits, expressly this Court recognizes that sum benefits hesitancy should be awarded without when it inis the claimant’s See, Polich v. Whalen’s O.K. Tire Warehouse best e.g., interest. (Mont. 1981), [_ Mont. __,] 1162, 1164, 634 P.2d 1572, 1574; Willoughby v. Arthur G. McKee & Co. (1980), 187 Mont. 700, 702; Utick v. Utick indicates, clearly

The record through testimony experts, that payment in Specifically, is Mr. Komeotis’s interest. best expert severely these witnesses testified that Mr. Komeotis was de- pressed inability provide living as a result of his to work and to family. considering background When Komeotis’s and his previous experiences, experts rehabilitative these that testified greatly for Mr. property Komeotis to rental would help to relieve depression. his severe majority recognizes that the lower have understated severity depression, of Mr. Komeotis’s but claims the finding contains supporting evidence the lower court’s “counseling appropriate seem and rehabilitation would more simply up setting apartment than house an owner.” Fencing Komeotis v. William State Insurance Fund, 8502-2934, 30, 1987). (July disagree. WCC Docket I No.

The record little or no contains rehabilitation alone will alleviate Mr. Komeotis’s severe counseling Dr. When asked about benefits of for Mr. Wagner, psychology, who Ph.D. holds a clinical testified so, “counseling week, usually once a hour once a occurs an week or it and would be for him to You difficult overcome know, once a week come the rest of the he’d he’d then week Baker, addition, slip . . . In Dr. who sort .” holds a Ph.D. counseling psychology, get testified “that we had to some kind *6 person, possibly vocational direction for this or could sui- we have hands, cide our . . . at the worse .” Dr. Baker further testified in light background, that of Mr. Komeotis’s and self- condition a employment only possible venture available him. hand,

theOn other solid found in the no evidence can be record support majority’s conclusion that evidence substantial exists support findings the lower court’s treatments alone will alleviate Mr. Komeotis’s severe does contain, however, credible evidence the claimant’s family public, and the will if granted be better is served payment part will him program let take recom- by experts only mended examined him offered the evi- who real dence what him fight can be done his present situation, apartment In the found that building financially feasible “man- and that Mr. Komeotis could age supervise building result would mean more that the merely total income to than if he col- the claimant [Mr. Komeotis] biweekly compensation.” No. lected WCC Docket 8502-2934, overwhelming at 24. The found in the record indicates that Mr. Komeotis’s severe could be alleviated upon managing supervising apartment building.

I would paid reverse and so that the claimant order get on can with rehabilitation. foregoing JUSTICES SHEEHY concurs dissent with

MR. JUSTICE HUNT.