Attorney Fees: Cases Denied

S.L.H. v. State Fund [12/28/00] 2000 MT 362 In contrast to section 39-71-2907, MCA (1991), which authorizes an award of penalty against an insurer for unreasonable dely even where the insurer settled "on the courthouse steps," section 39-71-612, MCA (1991) does not allow an award of attorney fees unless the case was actually brought before the workers' compensation court for adjudication and the judge makes an award greater than that offered by the insurer.

An insurer's unfounded claim for subrogation with respect to benefits already paid does not constitute unreasonable denial or delay in paying benefits allowing an award of attorneys fees under section 39-71-612, MCA (1991). However, an insurer's claim for subrogation not well grounded in fact and law as required by section 39-71-2914, MCA (1991) warrants an award of sanctions under that statute against the represented party, the attorney, or both.


Greer v. Liberty Northwest Ins. Corp. [02/03/16] 2016 MTWCC 2 Although the Court agreed with Petitioners that the case fell squarely under the exception to the going and coming rule in § 39-71-407(3)(a)(i), MCA, and that the case was indistinguishable from earlier case law, the Court concluded that the insurer’s arguments to the contrary were reasonable in light of the legislative history, particularly since the case was already pending when this Court issued a similar decision in this area of law.

Vonfeldt v. Costco Wholesale Corp. [11/16/15] 2015 MTWCC 20 The employer relied on the IME report which stated Petitioner’s injuries were only temporary, that she had reached MMI with no permanent impairment, that one of the Petitioner’s treating physicians agreed with the IME report, and her other treating physician said it was difficult to assign percentages to the contributing causes.  Under these facts, the employer’s continuing denial of liability for Petitioner’s myofascial pain syndrome was reasonable.

Chippewa v. Uninsured Employers' Fund [11/05/12] 2012 MTWCC 39 Contrary to the third-party respondent’s interpretation, nothing in § 39-71-613, MCA, provides a mechanism by which an employer might recover his attorney fees in this Court.

Bjorgum v. Montana State Fund [12/30/11] 2011 MTWCC 29 The Court did not find Respondent unreasonable in denying Petitioner’s claim and therefore not liable for attorney fees where Petitioner’s case was medically complex, his treating physician did not offer a clear causation opinion, and other medical experts offered conflicting opinions.

Montana State Fund v. Uninsured Employers' Fund and Folda [05/11/10] 2010 MTWCC 10 Sections 39-71-611(3), -612(4), MCA, specifically prohibit an award of attorney fees under the common fund doctrine or any other action or doctrine in law or equity.  Therefore, the Court denies the party’s claim for attorney fees “pursuant to equitable or legal principals [sic].” 
Montana State Fund v. Uninsured Employers' Fund and Folda [05/11/10] 2010 MTWCC 10 Section 39-71-611, MCA, restricts who can be ordered to pay attorney fees to insurers, but does not carry a similar restriction as to who can receive them.  However, § 39-71-614, MCA, provides that the amount assessed against an insurer must be based exclusively on the time spent by the attorney in representing the claimant. . .  .  Therefore, a party to a workers’ compensation case who is not a claimant cannot recover attorney fees under § 39-71-611, MCA.
Kilgore v. Transportation Ins. Co. [12/04/08] 2008 MTWCC 51 Where a nurse practitioner noted that Petitioner had a long history of asthma and asbestosis, and a progress note from Partnership Health stated that Petitioner planned on obtaining documentation on possible asbestosis, Respondent reasonably relied upon the Workers’ Compensation Court’s ruling in Fleming v. International Paper Co., 2005 MTWCC 35 (reversed in Fleming, 2008 MT 327), in arguing that Petitioner’s claim was untimely filed pursuant to § 39-72-403, MCA (2001).
Kramer v. Montana Contractor Compensation Fund [10/27/08] 2008 MTWCC 48 While the claims adjuster incorrectly used the alternate calculation method of § 39-71-123(3)(b), MCA, a superficial review of the claimant’s paystubs would have arguably supported her decision, even though the evidence as a whole clearly demonstrated that Petitioner’s wages should have been calculated under § 39-71-123(3)(a), MCA. While the Court determined the claims adjuster used the incorrect calculation method, in light of the superficial appearance of Petitioner’s pay history, it was not so unreasonable as to warrant the award of attorney fees.
Vanbouchaute v. Montana State Fund [08/23/07] 2007 MTWCC 37 In order to recover costs and attorney fees pursuant to § 39-71-611, MCA, the denial of the claim must be adjudged compensable by the Court. In this case, the Court indicated to the parties at the conclusion of the evidence what the decision would be on the issue of surgery. However, the Court did not formally adjudge the compensability of Petitioner’s claim before it was accepted and paid by Respondent. Although the Court made its intent clear to the parties as to the issue of medical benefits, the record is clear that it was not issuing a bench ruling on this issue. Since Respondent authorized Petitioner’s surgery before his claim was adjudged compensable by the Court, Petitioner cannot be awarded attorney fees or costs.
Markovich v. Liberty Northwest [06/14/07] 2007 MTWCC 21 Attorney fees and a penalty, when not addressed in a previous decision and not issues essential to that decision, may be brought in a later action. Ware v. State Compensation Ins. Fund, 1997 MTWCC 26. Therefore, although Petitioner ultimately failed to prove unreasonableness on the part of the insurer, the Court entertained Petitioner’s argument that although acting pro sé in the present action, he is entitled to attorney fees for work previously done on his case by retained counsel.
Riley v. W.R. Grace [9/10/99] 1999 MTWCC 56 Fees must be awarded under a specific statutory provision. Section 39-71-613, MCA (1985) is not applicable to claim for attorneys fees following Declaratory Judgment action involving insurer's right to offset death benefits because the action did not involve a "hearing" as described within that statute. Fees are awarded under section 39-71-612, MCA (1985) because the dispute concerned "the amount of compensation due." The amount of attorneys fees is governed by section 39-71-614, MCA (1985), which awards fees based on the time spent by the attorney, not upon a contingency agreement.
Pittsley v. State Fund [11/19/98] 1998 MTWCC 84 Where a claimant seeks penalty and attorneys fees following a grant of summary judgment turning interpretation of statutes, regulations, and case law, the question is whether the legal position taken by the insurer was unreasonable. In this case, important legal precedent was found by the Court's own research. It is difficult to find an insurer's legal position unreasonable when a claimant's attorney does not cite legal precedent to support his or her position. Attorneys fees and penalty denied.
Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 Claimant's physical restrictions post-injury established his entitlement to PPD benefits for lost lifting capacity; the insurer's refusal to pay these benefits was unreasonable and smacks of punishing claimant for failing to agree to settle all of his claims. Penalty is awarded on what was due claimant for physical restrictions, but attorneys fees are not awarded on that portion because that issue did not go to hearing, given the insurer's pretrial concession. See, section 39-71-612, MCA (1993.) Penalty and attorneys fees are not awarded on other benefits ordered where the insurer's denial was not unreasonable.
Heisler v. State Fund [3/17/98] 1998 MTWCC 25 Following remand from the Supreme Court, which reversed the WCC decision against claimant, claimant sought attorneys fees and a penalty. The insurer argued that request was barred by the WCC judgment, which was entered at claimant's request based on the representation that no further evidence or argument would be offered. The WCC agreed, holding that its order had dismissed all claims with prejudice, including prior claims for penalty and attorneys fees, and that the Supreme Court decision reversed only the WCC order regarding the constitutionality of a regulation. Under the law of the case doctrine, claims for attorney fees and penalty were dismissed.
Stevens v. National Union Fire Ins. Co. of Pittsburgh [7/17/97] 1997 MTWCC 45 Despite the finding of unreasonable conduct, claimant was not entitled to attorneys fees or costs under sections 39-71-611 or -612, MCA (1989) where the claim for benefits was settled without an order of the workers' compensation court. See, Lasar v. E.H. Oftedal & Sons, 222 Mont. 251, 252, 721 P.2d 352 (1986); Yearout v. Rainbow Painting, 222 Mont. 65, 68, 719 P.2d 1258 (1986).

Madill v. State Compensation Insurance Fund [5/28/97] 1997 MTWCC 33 On remand following Supreme Court decision ordering award of attorneys fees, Workers’ Compensation Court refused to order attorneys fees on successful appeal to obtain attorneys fees where section 39-71-612, MCA (1979) does not authorize such fees and Supreme Court opinion did not address such fees.

Robertson v. State Compensation Ins. Fund [01/23/95] 1995 MTWCC 4 Where insurer’s position on average weekly wage had support in the record, claimant, whose own position did not entirely prevail, was not entitled to attorneys fees on a theory of unreasonable insurer conduct. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).