*1 Relator EBEL, ex rel. MONTANA, WALTER STATE et and The SCHYE, al., ELMER Respondent, v. MRS. EM the PUBLIC ADMINISTRATION BOARD OF The STATE OF RETIREMENT SYSTEM PLOYEES’ Appellants. MONTANA, 9714. No. July 17,
Submitted 1956. December 1956. Decided January Rehearing 4, 1957. Denied (2d) 305 Pac. *2 Ralph Mr. Anderson, J. Helena, appellant. for Skedd, Messrs. Harris Mufich, & Helena, respondent. Mr. Anderson and Mr. LaVerne V. Harris argued orally. MR, CHIEF JUSTICE ADAIR: This appeal judgment from a entered the district court County, of Lewis and directing Clark a the issuance of peremptory writ of against mandate the Board of Administra- tion of Ppblie Employees’ System Retirement of the State of Montana and its members. proceedings by
The brought were Ebel, relator, Walter under Employees’ Act, the Public 1947, Retirement 68, Title section 68-101 to 68-1320.
The district court findings made of fact and conclusions of law, and in accordance therewith, its entered decree favor relator, Ebel, against Walter and the Board of Admin- istration of System Retirement its members, against whom the court ordered the issuance of a writ of mandate requiring said Board and its carry members to out the terms and conditions of the decree.
For forty years more than past last relator, Ebel, Walter has been and he still is a resident Chinook, County, Blaine Montana. He is a education, man of limited having only reached grade the sixth only school. The kind of work he has ever heavy done has been manual labor. special He has no formal or training or especially education fitting him for particular type Continuously work. years for some five or prior six and including March Ebel, the relator employed was County, Blaine Montana. relator driving operat-
On March Ebel was ing County’s maintainer, on which Blaine fourteen ton road raging A snowplow there was a attachment. blizzard was Ebel, he performance relator in the of the duties hired, attempt open highway plowing was was snow an reported on which a lost or frozen. traveler to have been suddenly engaged plow While so road maintainer struck great force, By still. stopping rock with the machine dead impact forward, the force of the the relator Ebel was thrown striking his nose and head on metal cab machine portions body hitting steering the lower of his wheel of the maintainer, by reason whereof relator became and was shocked and dazed. following day treated in Dr. the relator was Chinook injuries
Leeds for the which he had sustained. Thereafter pain attempted relator work but continued to suffer so much neck, back, part in his and head that in the latter of October finally quit work, time he was forced to since which relat- steadily grown reason whereof he or’s condition worse *3 days half has been able to work but three or four since Decem- only 1955, only ber for he was which he earned and paid $25. the sum $20 in-
It is conceded that the relator sustained such accidental juries 1951, employment as 18, on March in the of his course employee County, of Blaine Montana and that he came within Employees’ Re- provisions protection of both the Public Act, 1947, tirement 68-101 and the R.C.M. sections Compensation Montana, Workmen’s Act of the State of 1947, 92-101 sections to 92-1222. 18, 1952, relator Ebel filed claim for work-
On March Industrial Accident Board of compensation with the men’s injuries account of the accidental of Montana for and on State time the Industrial lapse of considerable so After the received. lump sum settlement with compromise Board made a Accident disability. partial the relator for his claim any reaching settlement with 3, 1953, and before October On filed, so the relator Board of claim the Industrial Accident ’ filed, with the Board of Employees Administration of the Public System, Retirement a claim for disability allowance, retirement which claim said together Board considered with all medical reports regular at its meeting 1953, held on October at which time such unanimously approved Board relator’s claim him awarded industrial disability retirement benefits in the sum of per $138.82 month. However, respondent Board’s resolution provided required any payments made to the relator the Industrial Accident Board would deducted from relator’s payments. retirement Thereby respond- did the ent Board determine that disability the rate of to' which the relator entitled, regard without ’s' workmen compensation benefits, is the per $138.82 sum of month.
After the Industrial lump Accident Board its sum made relator, settlement with the respondent Board of Administra- tion of System, Retirement then de- per $101.83 ducted per month from origin- $138.82 month ally awarded to relator and 16, 1952, from October to Decem- 1, 1955, ber paid the relator retirement benefits of only per month, being $36.99 the amount difference be- tween the $138.82 above mentioned $101.83. and the Since respondent December paid Board has relator noth- ing. undisputed These facts stand in the record.
The record further shows respondent repeated denied relator’s requests paid disability that he be retirement benefits in the amount per $138.82 month from October 1952, as authorized by the statutes the re- spondent findings. Board’s
The relator and his counsel were present at a meeting of the respondent Board held on November legal at which the questions involved discussed, were following respond- which the *4 ent Board discontinued all of relator’s industrial disability re- tirement benefits. Employees’ Act,
The Public Retirement Title 68-501, thereof, part, expressly section declares: “The for the attorney general hereby designated legal is counsel .’’ board prescribed legislatire In R.C.M. by imposed upon attorney general that are the duties legislature duty the attor- such law the has declared it is the * * * ney give “To general opinion writing, without fee * * * any officer, board, required state or commission when any upon question respective their relating law offices.” Subd. attorney general of ren- February 15, Montana
On respondent secretary dered and delivered dealing relating a similar opinion with case written official Opinion 3 in involved, being here No. Volume questions General, Reports Attorney opin- 24 of the Official ion states: therefore, my opinion employee that an who is a mem-
“It Employees’ System Retirement and who is ber of the Public eligible shall also covered Industrial Accident Insurance from Industrial Accident Board shall to draw benefits payable also be entitled to whatever retirement allowance is un- paid in- der the circumstances of his case. The benefits to an entirely jured' workman the Industrial Accident Board are any separate payments and distinct from made out of the re- Employees’ fund and Retirement Board tirement the Public paid by not subtract benefits the Industrial Accident Board computing paid by when the retirement allowance to be System.” Retirement Thirty-second foregoing opinion during was rendered Legislative Assembly. (1951) of Montana’s Since the Session publishing legis- handing opinion down and of such two other held, yet legislature sessions have been has not seen lative opinion fit to take issue with the or to enact statute de- claring otherwise. law, acquiesced construction executive
While binding court, yet assembly, is not on this such legislative upheld if will be not erroneous. persuasive interpretation *5 542
Compare 433, ex rel. Barr Mont. Court, State v. District 108 436, (2d) Pac.
At meeting respondent its held on November had, Board Administration, of discussion di- after considerable secretary rected its employ private counsel to resist relator’s payments efforts had to obtain the retirement which its Board set, determined, theretofore and allowed.
It regretted respondent is to be Board of Admin- ignore counsel, opin- istration saw fit to advice and written attorney ion of the general plain as well direction and legislature. mandate of the R.C.M. 68-501 and section legislature provided section 82-401. When the expressly has so legal counsel and expense services for the Board at no system, system retirement the trust of' that should not be funds payment attorneys’ already sup- used for the of fees and services plied provided by express and for statutes. relator finding that after respondent Board contends injury arising of and incapacitated as a result out
to be of fixing his employment making of his and after and the course payments, may then from such bene- benefit such Board deduct Industrial payments fit sum as awarded such has been injuries, in the absence Accident Board for the same or like a Industrial Board that reason finding of Accident injuries totally permanently the claimant become disabled. (h), by chap- 68-901,
R.C.M. section subd. as amended Act, perti- the Retirement so far as ter Laws nent “* [*] * here, provides: If the board determines on the evidence it ob- in- disability from application tains and filed that the resulted jury arising employ- in the course of or disease out [of] paid ment, member shall be retired forthwith and be the said system.” provided benefits under the (h), provides: further subd. 1947, by the industrial accident board of paid “Any compensation any system member the retirement Montana to the State of permanent disability injury total and resulting from or dis- arising ease employment out of in the course of shall be deducted from the benefits payable sys- under the retirement tem disability. for such
“In case where the industrial accident board makes determination that employee of a state resulted from injury arising or disease employment out of and the course of pays compensation thereon total and dis- ability, the industrial certify accident board shall its findings *6 and determination to the board public of administration of the employees’ system.” (Emphasis supplied.)
The record herein discloses that payment the settlement and by
made to relator the Industrial Accident Board was based upon made by the finding the Industrial Accident Board that the relator Ebel injury had suffered an arising out of and in the course of his employment, fifty-seven amounting to per cent, permanent partial disability body Ms as a whole.
It will be that observed the Industrial Accident did Board find, it pay nor did total relator for dis- ability, and therefore the not, Industrial Accident Board was (h), otherwise, required subd. or nor directed certify findings, determination, payments or it made to relator to Employees’ the Board of Administration of the Public Board, Retirement Employ- and for the same reason the Public ees’ authority justification Retirement Board was without or in requiring making any or or deduction deductions in the retire- payments found, ment determined and awarded to relator on any payments account of made the Industrial Accident Board. It in passing should be noted that R.C.M. section 68- 1304, so as pertinent here, provides: far disability qualified “After a member as to service and * ** deprive nothing shall him the disability, retirement for right as determined under this act. to a retirement allowance qualification therefor, shall be Such retirement allowance and subject (Emphasis sup- provision otherwise to the of this act.” plied.) legislature public policy Thus the established the
544 Missoula, Compare City
state such matters. v. Henderson 106 596, 601, 602, (2d) 547, Mont. Pac. A.L.R. respondent
The Administra- record shows that the Board of tion, through reports its investigations and from its doctors’ information, and other relator had found and determined that injury an his em- arising suffered course of out of and ployment disability and that industrial retirement was such a permanent disability based on of chronic strain of the cervical region, dorsal bridge fracture of the of the nose and cervical concussion, by respondent approved reason whereof sum the relator’s claim for industrial retirement in the per $138.82 month. kept dealing It should two mind we are here with distinct, separate independent legislative acts. Each act entirely pub- covers different field. Each act establishes policy regard subject lic treated. particular field and Compensation The two are Workmen’s Act and the acts Retirement Act. legis- Compensation Workmen’s Act enacted our approved March chapter Laws of and was lature 8,1915. That set forth in Title act as now amended is passed meet the need and demands of both 1947. The act was liability em- employees a limited employers and *7 injury, attendant disease or death ployer should be fixed for resulting injury employee an industrial death to an from or employee or his de- given and that assurance should be injury in pendents that ease of accidental or death while compensation wages. in lieu employment there should be some of public policy of state legislature The thus established the compensation. regard to workmen’s Employees’ Retirement Act was enacted our Public 212, 1945. act as amended chapter Laws of Such legislature legislature 68, 1947. The found appears in Title now government private indus- federal and determined, as the and retirement determined, that some form of and try had found employ- and make more efficient state necessary to stabilize 545 ment employment agencies and the state. subdivisions and of enacting
In Employees’ Act, legis- Public Eetirement lature declared: purpose economy efficiency
“The this is to act and of effect public providing whereby employees service a means who superannuated incapacitated may, become with or otherwise out hardship prejudice, capable replaced or em more ployees ,and that providing system end com a retirement sitsing compensation retirement and death benefits.” R.C.M. of 1947, (Emphasis section 68-101. supplied.) Compare State ex rel. Jardine Ford, 507, v. (2d) 422, Mont. Pac
This Employees’ System self-participat- Eetirement is ing in a that employee’s certain percentage each stated sal- ary is placed deducted and fund, interest, in his retirement at so that after the required age, incapacity, time or the em- ployee may retire proportionate and draw his in- come.
Dr. D. E. Monserrate testified he had examined the re- opinion lator that in relator with minimal educa- tion, having heavy years, totally done work incapacitated as far doing any os kind involving heavy physical of work labor driving or in a road maintainer. Person,
Dr. of Great at Clinic, request Falls of the re- spondent Board, examined the relator and wrote the Board that on the basis of that examination he believed that Ebel had per disability. ten to fifteen cent partial Eichardson, Clinic,
Dr. B. also Falls E. Great called respondent for the testified as witness that on Decem- request ber at the of the Public Eetirement Board, relator, Ebel; made an examination he Walter day December, 5th that on the made he a written re- port thereon; therein he stated: “I see no reason to feel that there further than the ten fifteen per disability.” permanent partial cent
Dr. on Eichardson testified that December he had joint examination made a bone of Ebel the Board *8 546 (the doctor) operating
that he that Ebel recalled had been road equipment and that there would be times when relator would pain have or in his shoulder discomfort neck and which would it necessary make him some time. to lose interrogated doctor was and made answer as follows: “Q. you in him at the time of Would conditions found your heavy any way doing examination labor? A. in affect his * * * By ‘heavy labor’, you mean as “Q. driving a maintainer or such 14-ton road Such as A. I think lifting pounds, thing? of would 200 that sort by day, consistently, day lifting if him he was bother pounds. I
“Q. eight day? A. don’t working If he were hours grader. know it takes how much force to work Yes, “Q. A. him? Would vibration effect on have some it would.
“Q. that sort Would vibration make it more difficult to do of work his condition? A. I think so.” would days
Dr. testified that would be Richardson further there give him lay off; when Ebel would that cold would have to pain that he symptoms aggravate symptoms more (the doctor) of prior had not seen Ebel to the examination 1, 1955. December relator Billings, Montana, who had examined Allard
Dr. relator’s condition report showing the cause of twice, filed road patrol when a March injury suffered against rock, throwing driving relator struck a relator was doctor) in the lower (the pain he found cab; top headaches; discomfort regions; upper dorsal' cervical bridge sensation inguinal region; numbness right and the con- legs, disturbance vision nose; aching in the cervical dorsal diagnosed as chronic strain dition was with caution prognosis foretold The doctor’s regions. ever return recovery to such extent as to relator’s likelihood of rated the relator occupation and the doctor type of his former *9 disability thirty-five per as com- permanent partial cent pared body to loss of the as a whole. Montana, to Roy Street, therapy Havre,
Mr. technician of Billings treatment, whom Dr. Allard Ebel for sent of referred a sworn statement wherein to the Board on October he stated: April
“Last Billings, Dr. Louis Montana referred Allard Ebel, Physical Therapy Walter Chinook, Montana, to me for given treatment. Since that time I him treatments. has have He permanent a injury region as I in see it. His neck the cervical tissue; upper region has scar also scar in ex- tissue dorsal tending plexus. out over the brachial The throat in front of auditory tube require also has scar which will treat- tissue time, ment for long perhaps says a permanently. Dr. Allard X-rays from spinal relator’s axis bone the cerebro col- umn is set to one side. operated Dr. Hurd of Great Falls on the bridge given nasal relief, complete him some not but relief. my
“It require belief Walter Ebel will treatment almost permanently. So, my opinion, why I I do not see should yet requires release him as because he still troubled. treat- He relief, week, a ment for sometimes once and sometimes he can go I two weeks between treatments. do not remember the exact treating him, April I I think date started but it was of this year, 1953.” that each of above doctors was
It will be noted incapacitated for the kind of work for opinion that relator was by age, education, general physical and he was fitted experience degree. capacity previous work some mental apparently disability felt that his Richardson Drs. Person and partial disability; per permanent that was ten to fifteen cent adversely relator; that affect vibration would be cold would days him; there would be when he would have bad for that say totally Ebel is lay that was difficult to off and disabled. expert testimony, testimony, is intended to as other
Medical jury. Board’s aid, or The but not conclude court interpretation Retirement Act would any kind if appear injured to be that member is able to do work, however however trivial and unremunerative been foreign type that he had followed and theretofore do, qualified by experi trained to and for which he alone was ence, that notwith background age perform educational standing injury, such claim member establish total, character, partial or of a as a basis therefor. does case provide, terms act do not so nor The statute support
we found such construction. have provides: (h), part, subd. (70) years of *10 seventy “Any member who has not reached per- incapacitated the for age shall be retired if for any injury arising duty or disease as the result formance of employment.” and in the of his out course [of] incapacitated is for The evidence is conclusive that relator per- had perform and performance of the duties he was hired to satisfactorily many years. Administra- The Board of formed right finding. was tion so court, considerable this in the district
Upon the trial of case introduced, and while testimony was medical and other testimony there was sufficient in the conflict there was some findings and sustain its court, evidence, if believed evidence, if it does in the is conflict When there judgment. preponderates against clearly the evidence appear not that sus will be court, judgment of the court findings of the Co., Portland Three Forks Cement Compare Birdwell v. tained. will not reverse (2d) 43, 47. This court 483, 40 Pac. 98 Mont. except the evidence where findings the district court Copper Compare Woin v. Anaconda against it. preponderates (2d) 663, Wieri v. Ana 163, 43 Pac. Co., 99 Mont. Min. (2d) 838. Co., 156 Pac. Min. 116 Mont. Copper conda relator, and the district court affirmed judgment of and from the and he shall recover Ebel, is awarded Walter respondent Board of Administration of the Public System, appeal together Retirement relator’s costs on this with attorney’s $250.00, fee sum of reasonable in the incurred procuring appeal. prosecuting counsel and this It is so ordered. ANGSTMAN,
MR. JUSTICES ANDERSON and BOTTOM- LY, concur. DAVIS, concurring).
MR. JUSTICE (specially Under R.C.M. (h), subd. it is the Indus- trial Accident Board which determines when member of the Montana Retirement System, appears who before that Board to claim compensation provided in our Workmen’s Com- pensation Act, totally permanently that disabled. With determination the Public Employees’ System of the Retirement state and its (hereafter Board Board) Retirement has noth- ing to do. Nor the Retirement Board make determina- any tion in case where Industrial Board has Accident not done so. The statutes themselves are conclusive here.
In Ebel’s case before us the Industrial Accident Board did pay any him compensation permanent for total and dis- ability. precisely certify The record shows It this. did not Retirement finding it to or determination totally disabled, effect was permanently Ebel or that any compensation paid him itby total and disability. not; It findings could for the it made were to the contrary.
It follows that neither the Retirement Board nor courts paid public can deduct from the benefits him as a retired em- ployee any compensation him the Industrial of the awarded compromise it Board when concluded with him the Accident lump ap- settlement his before that Board sum of claim which pears statute, (h), in record. The this section subd. authority. gives specifically it no such More on the facts this jurisdiction record the Retirement Board was without to make plain duty it did such in Ebel’s ease. deduction Its found due pay Ebel which it had the retirement benefits In- him the anything paid him without deduction at all for “57%, partial dis- Board, dustrial Accident for a ability body of the as a whole”. I judgment
Therefore would affirm the district court which us do so brought appeal; before on this and order .to I think I nothing Particularly need more be written. do province think Retire- upon right it our comment employ private ment Board counsel as it think best of a I be- exercise sound administrative discretion. do not necessarily lieve under the statutes the state Board attorney- rely solely upon opinions must and services general. attorney’s
I think the fees in the of $250 allowance sum damages relator Ebel as sustained of this on account correctly appeal judgment court, from the of the district granted mandate, him justified a writ of reasonable the record.
But other than as I have indicated above I do not concur majority what is written in opinion. Rehearing for Petition
On PER CURIAM. rehearing be, and petition appellants’ for
It is ordered is, that remittitur issue. denied AND- ADAIR, and MR. JUSTICES MR. CHIEF JUSTICE BOTTOMLY, concur. ERSON denying and concurring in (specially : DAVIS MR. JUSTICE herein). rehearing disallowing petition Retirement Board for the rehearing counsel By petition acting under R.CM. 15, 1955, that urge that on December no relator Ebel was (a), determined 68-1001 his finding original its been as had incapacitated longer ef- “disability accordingly canceled case, *12 by the Retire- 1, fective as of December 1955.” This action subject by the courts. Board, said, ment it is is not to review brought before us on judgment Hence the of the district court argued, appeal judgment, this affirmance of that is our necessarily wrong. point is The made I think must be met here and answered. proceeding
This was commenced in the lower court on Decem- 2, 1955, days ber thirteen before the Retirement Board acted deny to at Ebel retirement benefits all after December Implicit express findings by in the made the district judge in is finding this matter his further that the Retirement Board acted capriciously here Ebel’s case both and arbi- trarily, i.e., punish refusing ruling to him for to abide its lawfully that it could deduct made him under the the award Workmen’s Compensation Act from payable by
benefits the Retirement Board. support implied finding There is substantial evidence to this weight of the trial evidence taken is court. The there certainly contrary. accordingly it. We are bound In these then we not set aside the district circumstances judgment,'which part court’s rests in least thereon. at Other- phrased, wise it is clear to me on this record that its order December the Retirement Board could not defeat proceeding brought Ebel’s theretofore on December for a compel payment writ of mandate then what was time; due him his I as case stood at that think the district judge right in holding judgment was so when entered he below in Ebel’s Moreover, arbitrary favor. because this order plainly lay entered in bad faith to effect end which be- yond sphere action, agree the Retirement Board’s I lawful judge further with the trial it must disregarded.
judgment does rightly district court so. point thereby explicit to the judgment
But that pay Ebel retirement Retirement Board ordered benefits only as "long qualifi- a month relator’s amounting $138.82 ’’ unchanged. shall cations for such continue is ex- benefits Here press recognition authority of the Retirement Board’s to act under 68-1001(a), whenever Ebel’s case justifies Nothing judgment action. contained of the dis- court, justifies trict here, which we affirm the contention that *13 either judgment that or our ousts the Retirement affirmance jurisdiction Board of the lawful plainly which is under its own (a). section 68-1001
My concurrence in that I affirmance and what have written point judgment that the right affirmed is to be Particularly construed as an intimation otherwise. I disavow any suggestion that the Retirement Board be or its coerced acts reviewed in the courts when that Board acts within the jurisdiction given exercise of the discretion statute. judgment Because the presume below does not to trench upon jurisdiction, infringe upon discretion, or to my because judgment, concurrence in the- affirmance of that fairly read, is designed so, I likewise not do concur appellant denial of the petition rehearing. Board’s MR. JUSTICE ANGSTMAN: opinion
I deleted from the refer- think there should be question counsel appointment ence to the board’s court, petition rehearing should not before the or the granted. MONTANA, STATE Respondent, Plaintiff v. Appellant. COCKRELL, MARVIN Defendant 9709. No. 22, 1957.
Submitted March 1957. Decided March (2d) Pac.