Keene v. Anaconda Co.

MR. JUSTICE MORRISON

dissenting:

I respectfully dissent.

I agree with the majority opinion that a finding by the Workers’ Compensation Court that claimant was disabled from performing work as a boilermaker is not sufficient to support a finding of permanent total disability. However, there is substantial credible evidence in the record to up*110hold the finding of the Workers’ Compensation Court that this claimant did suffer from a total disability.

The majority correctly quotes section 39-71-116(13), MCA, which sets forth the definition of permanent total disability for workers’ compensation purposes. That statute requires that claimant show he has no reasonable prospect of regular employment in the normal labor market.

Evidence was provided by claimant at the hearing in this matter, that claimant was unable to hold any kind of regular job due to the pain experienced by claimant. Claimant’s testimony is corroborated by testimony from a highly reputable board-certified orthopedic surgeon, Arnold Peterson, showing that claimant suffered from a thirty-five percent disability. This evidence, when combined with evidence of claimant’s lack of education and inability to qualify for employment other than that of a boilermaker, provides substantial credible evidence for a finding by the Workers’ Compensation Court that this claimant was permanently disabled.

It certainly would have been better for the Workers’ Compensation Court to make a specific factual finding supporting the reason for its determination of permanent total disability. However, we can imply such a finding. In light of the fact that the Worker’s Compensation Act is to be liberally construed in favor of the worker, I would imply such a finding in this situation because there is certainly evidence in the record to uphold the determination herein made.