Is Petitioner entitled to a 20% increase in the amount of benefits under § 39-71- 2907, MCA, and attorney fees under §§ 39-71-611 and -612, MCA?

Summary: Petitioner seeks a 20% increase in the amount of benefits under § 39-71- 2907, MCA, and her attorney fees under §§ 39-71-611 and -612, MCA, for Respondent’s alleged unreasonable delay in authorizing a surgery. Respondent moves for partial summary judgment. It argues that Petitioner cannot recover her attorney fees on her medical benefits under §§ 39-71-611 or -612, MCA — which generally provide that this Court can award attorney fees if it adjudicates a dispute over compensation and the insurer’s denial or delay was unreasonable — because it authorized the surgery prior to adjudication, and further argues that this Court cannot award attorney fees on the 20% increase because this increase is a “penalty” and not “compensation.” Petitioner objects to the summary judgment motion, arguing that the statutes do not preclude her from recovering attorney fees on her claim for a 20% increase in the full amount of benefits due under § 39-71-2907, MCA — which Petitioner argues is not a penalty, but rather additional compensation.

Held: Respondent is entitled to summary judgment on Petitioner’s claim for attorney fees. This Court cannot award attorney fees on Petitioner’s medical benefits because Respondent authorized the surgery before this Court adjudicated the dispute. Nor can this Court award attorney fees if Petitioner obtains a 20% increase in her benefits because case law from the Montana Supreme Court and this Court establishes that the 20% increase under § 39-71-2907, MCA, is a penalty, not compensation.