concurring in part and dissenting in part:
I concur with the majority in the resolution of the issues of temporary total disability payments, and attorney fees. I disagree with and dissent from the majority opinion insofar as it remands the indemnity award, and denies the worker’s right to a penalty in this case.
It distorts the record to say that there is no basis in the evidence and in the findings and conclusions for the indemnity award. (The indemnity award is for permanent partial loss of earning capacity.)
At the outset, it is stated here as reinforcement that when the Workers’ Compensation Court is considering an indemnity award, it need not consider as a determinative fact that the employee is earning as much or more money as he did before the injury. Fermo v. Superline Products (1978), 175 Mont. 345, 574 P.2d 251. Of course, if loss of earning capacity can be proven through an actual, post-injury loss of earnings, that is an item for Workers’ Compensation Court to consider. Walker v. H. F. Johnson, Inc. (1978), 180 Mont. 405, 591 P.2d 181. It was settled in Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211, 213-214, 259 P.2d 340, 342, that the test of whether an injured worker is entitled to an indemnity award is not whether there has been a loss of earnings or income caused by the *230injury, but rather whether there has been a loss of earning capacity — a loss of ability to earn in the open labor market.
The evidence in this case discloses that this injured worker has sustained a loss of ability to earn in the open labor market. This injury occurred when the employee, working as a switch man, was crushed between a brick wall and a moving train car. His injuries were found by the Workers’ Compensation Court to be: “blunt trauma to the chest and abdomen; abrasion right lobe of liver; hemoperitoneum; contusion to left kidney with hematoma at base of gallbladder; hemopneumothorax of right lung; [and] fractured ribs 5 through 11 on the left.” He was substantially and seriously injured.
With respect to the worker’s residual post-injury difficulties, the Workers’ Compensation Court made findings that the worker has occasional discomfort on the left side of his chest due to the nature of the healing of his ribs; that when he sits for a long period of time, he experiences tiredness in his back and pain in his legs. The court also found that after his injury the worker received a degree in civil engineering from Montana State University and is employed as a civil engineer by the Montana Power Company. However, the worker’s opportunity to work as a civil engineer is limited in that he can not accept a job that requires a great deal of traveling or that is involved with heavy construction. The claimant stated the reason for his limitation is that he would not want to jeopardize himself or anybody else in a situation where “. . .1 might get hurt, say if I was to be in the proximity of heavy construction and something did happen and I was called on to do something that required some heavy physical response.” The pain and “bothersomeness” in his rib cage is due to the fact that a couple of the ribs have healed a little out of place and they protrude farther from his chest than the other ribs. He has a continuing dull pain in the chest.
On these findings, the Workers’ Compensation Court concluded:
*231“The evidence clearly establishes that claimant still suffers some residual effects from his injury that would limit his ability to obtain certain employment as an engineer in the open labor market. It appears that an indemnity award of 100 weeks would be an appropriate award in this case.” (Emphasis added.)
We are required to view the evidence on appeal of a case of this kind in the light most favorable to the prevailing party. Hellickson v. Barrett Mobile Home Transport, Inc. (1973), 161 Mont. 455, 507 P.2d 523, 525. In considering such evidence we should bear in mind these rules:
“. . . We will not substitute our judgment for that of the trier of fact, but rather will only consdier whether substantial credible evidence supports the findings and conclusions. Those findings will not be overturned by this court unless there is a clear preponderance of evidence against them. We will view the evidence in a light most favorable to the prevailing party, recognizing that substantial evidence may be weak or conflicting with other evidence, yet still support the findings. . .” Cameron v. Cameron (1978), 179 Mont. 219, 228, 587 P.2d 939, 945.
We owe a good deal of respect to the findings and conclusions adopted by the Workers’ Compensation judge. Under section 39-71-2905, MCA, he is given the power to fix and determine any benefits to be paid and to specify the manner of payment to a claimant. The Workers’ Compensation judge is required in that same statute to make his determinations in accordance with the law as set forth in Ch. 71 of Title 39, MCA. Indemnity awards arise by virtue of the provisions of sections 39-71-705 and -706, MCA. The latter section provides that in all cases of permanent injury less than total, the compensation for permanent partial disability shall bear such relation as the disability bears, in this case, to 500 weeks. By determining here that the claimant was entitled to 100 weeks for his indemnity award, the Workers’ Compensation Court impliedly found that he had suffered a loss of 20 percent of earning capacity. The record bears that *232out.
Although an estimate from a medical person as to the percentage of total disability of an injured worker is undoubtedly helpful to the Workers’ Compensation Court, I find nothing in the law which requires the testimony of a medical person as an absolute requisite for such an award. There is no reason why the Workers’ Compensation Court cannot rely on the uncontroverted evidence of the claimant as to the amount and character of his disability, from which the Workers’ Compensation Court may draw a conclusion as to the amount of indemnity award to which the claimant is entitled. Section 39-71-706, MCA.
Taking into account that there is a different Workers’ Compensation judge now sitting than the one who heard and determined this case, it appears quite unnecessary to me to remand this case to the Workers’ Compensation judge for what will be a ministerial act: his determination that the injuries shown by the claimant amount to 20 percent of his earning capacity.
I also disagree with the majority conclusion that this claimant is not entitled to a penalty award based on the actions of the insurer in connection with his claim. The majority is substituting its opinion for that of the Workers’ Compensation judge upon entirely wrong factors. This is not a case where the employer-insurer had a right to rely on medical evidence so as to refuse all further compensation.
Section 39-71-2907, MCA, provides:
“. . .The question of unreasonable delay or refusal shall be determined by the workers’ compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein.”
The Workers’ Compensation Court concluded that “[t]he position of the insurance carrier that claimant is entitled to absolutely nothing constitutes a delay or refusal to pay compensation benefits. . .” (Emphasis added.) The record *233supports this finding and conclusion.
A review of the whole record, not shown to have been made by the majority, would indicate that there was an unreasonable delay or refusal to pay compensation to the worker.
On March 9, 1979, Mr. Keene, branch manager of the adjustment firm handling this case, wrote to the worker stating that he had been overpaid for 36 days for a total of $966.86, and demanding that Van Daveer repay that amount. This was during the period of the worker’s disability, which the majority concurs is correctly computed.
On March 21, 1979, counsel for the worker wrote to Mr. Keene advising him of the development of a hernia in the long abdominal incision. In that letter, counsel advised Keene that the overpayment could be deducted from the eventual entitlement to the worker, and that this was a case where there would be a claim over and above the temporary total disability benefits.
On March 30, 1979, Keene wrote to counsel for the worker stating that they were going to deny further compensation by relying on the medical report of Dr. Bartlett that the worker suffered no residual disability, although at that time Keene had been advised that an operation for the hernia had occurred.
On June 8, 1979, Dr. Bartlett wrote to Keene, stating that he had last seen the worker on March 29, 1979, and that he had released the worker for full duty as of May 1, 1979. Dr. Bartlett also indicated that since he had not seen the worker lately, he could give no further information at that time.
On July 2, 1979, the worker’s counsel wrote to the adjustment firm stating that a claim would be made for an indemnity award, and setting forth the amount of partial disability then owed to the worker. The letter invited any offer that the firm might make with respect to settling the case. The insurer did not respond.
On August 23, 1979, Keene wrote to the Workers’ Com*234pensation Division, asking for permission to pay the worker a temporary total disability of 6 weeks, and to deduct therefrom the overpayment of $966.86, leaving a net payment to the employee of $161.14.
On September 28, 1979, Keene addressed a letter to counsel for the worker stating that he had received a letter from the Workers’ Compensation Division authorizing the deduction of the overpayment and that Keene had surrendered a check in the sum of $161.14 “as final payment of compensation benefits owing.”
On February 7, 1980, the employee filed his petition for a hearing to determine the compensation benefits to which he was entitled. In that petition, he asked for an indemnity award for prospective loss of earning capacity.
On April 30, 1980, the Workers’ Compensation judge entered a pretrial order, in which he noted that worker contended he was entitled to an indemnity award for prospective loss of earning capacity, and in which the employer contended that the claimant had been paid all medical and compensation benefits to which he was entitled.
The case was tried on depositions, all taken on the same day. The claimant testified to his continuing disability. Keene testified that based on medical reports and the further testimony that day of the worker, he would still contend that the worker was not entitled to one further penny as compensation benefits.
Thus, months after the letter of September 28, 1979, it was apparent that Keene still refused to change his mind, and was relying on medical reports that obviously were not pertinent to the present claimed condition of the worker. The Workers’ Compensation court saw this as an unreasonable delay or denial of compensation benefits. The record sustains the court. When there is substantial evidence to support the court’s findings and conclusions, it is the duty of this Court to affirm those findings. Walker v. H. F. Johnson, supra.
I would affirm the Workers’ Compensation Court in toto.