No. 13456
IN THE SUP= COUE OF THE STATE OF MONTANA
1978
RON PALTER,
Claimant and Respondent,
VS.
PUBLIC AUCTION YARDS, Ehployer,
and
NATIONAL AUTOE43BILE & CASUALTY INSURANCE CO , .
Defendant and Appellant.
Appeal from: Workers' Compensation Court
Honorable William Hunt, Judge presiding.
Counsel of Record:
For Appellant:
Andrew J. Utick, Helena, Montana
For Respondent:
Pbulton, Bellingham, Longo & Mather, Billings, Montana
Submitted on briefs: August 10, 1978
Decided :
4 ,979 h 2 1 197!3
!R
Filed :
Mr. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t .
~ h r o u g hh e a r i n g s b e f o r e t h e Workers' Compensation C o u r t
i n Helena, Montana, on October 2 4 , 1975, and i n B i l l i n g s ,
Montana, on F e b r u a r y 4 , 1976, c l a i m a n t s o u g h t w o r k e r s '
compensation b e n e f i t s f o r a n i n j u r y t o h i s r i g h t knee which
o c c u r r e d on F e b r u a r y 1 6 , 1973. On A p r i l 5 , 1976, t h e Workers'
Compensation C o u r t e n t e r e d f i n d i n g s o f f a c t and c o n c l u s i o n s
o f law o r d e r i n g t h e i n s u r e r t o pay permanent p a r t i a l d i s -
a b i l i t y b e n e f i t s t o t h e c l a i m a n t based upon a weekly wage o f
$87.50 from t h e d a t e o f t h e c l a i m a n t ' s l a s t payment, such
payments t o be made i n d e f i n i t e l y , u n t i l changed by o r d e r o f
the court.
On A p r i l 26, 1976, t h e i n s u r e r f i l e d a p e t i t i o n f o r
r e h e a r i n g and a n a l t e r n a t i v e motion t o amend and supplement
t h e f i n d i n g s of f a c t and c o n c l u s i o n s of law. The i n s u r e r
o b j e c t e d t o t h e computation of c l a i m a n t ' s compensation
b e n e f i t s based upon a weekly wage o f $87.50 r a t h e r t h a n upon
a weekly wage o f $18.36; i t o b j e c t e d t o payment of b e n e f i t s
f o r a n i n d e f i n i t e p e r i o d of t i m e r a t h e r t h a n l i m i t i n g s u c h
b e n e f i t s t o t h e s t a t u t o r y maximum s e t f o r t h i n s e c t i o n 92-
709, R.C.M. 1947, now s e c t i o n 39-71-705 MCA; and it sub-
m i t t e d f i n d i n g s and c o n c l u s i o n s d e s i g n e d t o r e t a i n j u r i s -
d i c t i o n of t h e m a t t e r i n t h e Workers' Compensation C o u r t
u n t i l a l l m e d i c a l t e s t i m o n y was completed and t h e f u l l
e x t e n t of c l a i m a n t ' s permanent p a r t i a l d i s a b i l i t y c o u l d b e
determined. By o r d e r d a t e d June 3 0 , 1976, t h e Workers'
Compensation C o u r t d e n i e d t h e i n s u r e r ' s p e t i t i o n and motion
and summarily r e t u r n e d t h e f i l e t o t h e a d m i n i s t r a t o r of t h e
Workers' Compensation D i v i s i o n . The i n s u r e r a p p e a l s .
T h e r e i s no d i s p u t e t h a t c l a i m a n t Ron W a l t e r s u f f e r e d a
compensable i n d u s t r i a l a c c i d e n t . On F e b r u a r y 1 6 , 1973,
w h i l e i n t h e employ o f Western L i v e s t o c k R e p o r t e r , d/b/a
P u b l i c A u c t i o n Yards, c l a i m a n t s u s t a i n e d a n a c c i d e n t a l
i n j u r y t o h i s r i g h t knee when h e was k i c k e d by a cow. He
w a s f i r s t t r e a t e d by D r . L.C. A l l a r d who d i a g n o s e d a r u p t u r e
of t h e t i b i a 1 c o l l a t e r a l l i g a m e n t of t h e r i g h t knee. Dr.
A l l a r d r e f e r r e d c l a i m a n t t o D r . P e t e r V. T e a l f o r p o s s i b l e
surgery. T h a t same d a y , F e b r u a r y 1 6 , 1973, c l a i m a n t was
s e e n by D r . Teal. Dr. T e a l f e l t t h a t c l a i m a n t had s u f f e r e d
a p a r t i a l t e a r of t h e m e d i a l c o l l a t e r a l l i g a m e n t of t h e
r i g h t knee. He p l a c e d c l a i m a n t ' s r i g h t l e g i n a c y l i n d e r
cast.
On March 6 , 1973, c l a i m a n t f i l e d a t i m e l y c l a i m f o r
compensation b e n e f i t s f o r i n j u r y t o h i s r i g h t l e g .
Subsequent t o h i s t r e a t m e n t by D r . Teal, claimant
r e t u r n e d t o h i s p r i m a r y o c c u p a t i o n of o p e r a t i n g h i s farm
where he c o n t i n u e d t o e x p e r i e n c e d i f f i c u l t y w i t h h i s r i g h t
knee. I n J a n u a r y 1974, c l a i m a n t , a f t e r c o n s u l t i n g w i t h D r .
Ronald Losee, d e c i d e d t o undergo s u r g e r y . On J a n u a r y 1 5 ,
Dr. Losee performed a l a t e r a l meniscectomy on c l a i m a n t ' s
r i g h t knee. A t that time Dr. Losee e s t i m a t e d c l a i m a n t would
b e o f f work f o r s i x weeks and f e l t t h e r e would be no p e r -
manent impairment o t h e r t h a n a l i t t l e j o i n t l o o s e n e s s .
A f t e r s u r g e r y , c l a i m a n t c o n t i n u e d t o s e e D r . Losee.
However, upon t h e l a t t e r ' s r e f u s a l t o s u b m i t a n i m p a i r -
ment e v a l u a t i o n c l a i m a n t was s e n t by t h e i n s u r e r t o D r .
Frank Humberger of Bozeman f o r e v a l u a t i o n . Dr. Humberger
f e l t t h a t b e c a u s e c l a i m a n t c o n t i n u e d t o complain o f prob-
l e m s w i t h h i s r i g h t knee, a n o t h e r a r t h r o g r a m ( t h e f i r s t
o n e having been done a t D r . T e a l ' s d i r e c t i o n ) should be
done. A f t e r c o n s u l t i n g w i t h D r . Losee, c l a i m a n t r e f u s e d
t o undergo t h i s p r o c e d u r e . D r . Losee a d v i s e d t h a t h e a l i n g
was completed; that he would not recommend a repeat arthro-
gram; that compensation benefits should be discontinued; and
that the claimant would be reexamined in the spring.
The next medical report from Dr. Losee is a handwritten
report, dated March 10, 1975, which states:
"Diagnosis on Ron Walter:
"Medial Capsular Insufficiency and Arthrosis
Rt Knee.
"Accounts for his pain and instability.
"R. E. Losee'!'
There is no further medical information contained in the
file.
At the hearings before the Workers1 Compensation Court,
it was brought out that the claimant's principal occupation
was that of a farmer and he regularly supplemented his farm
income by outside employment during the winter months. At
the time of his injury, he was employed part-time by Public
Auction Yards helping with livestock sales. Claimant stated
he had been similarly employed the year before his injury
and had earned over the course of the previous year $954.30
from such employment. These 1972 wages were broken down by
calendar quarters: First quarter, $824.74; second quarter,
$90.78; third quarter, $0; and fourth quarter, $36.78.
Claimant further testified that his average weekly wage at
the time of injury was roughly $75.00; and that he expected
to work approximately the same schedule in 1973 as he had in
1972 at an hourly rate of $2.00.
Additionally, the Court had before it the employer's
first report of injury which showed claimant's weekly wage
to be $80.00; the claim for compensation which showed that
claimant worked 12 1/2 hours per day for three to four days
per week for $75.00; and the fact that the defendant-insurer
had made payments based upon a weekly wage of $45.00.
The Workers' Compensation Court entered the following
findings of fact and conclusions of law:
"1. The uncontradictory (sic) testimony of Ron
Walter was that he would expect to work
an average of 43-3/4 hours per week in 1973.
"2. His average earnings in 1973 were $2
per hour.
"3. His average weekly wage for 1973 was
$87.50.
"4. Compensation should be determined based
upon the average weekly earnings of Ron
Walter.
"That Ron Walter is entitled to receive benefits
for permanent partial disability based upon
his average anticipated earnings of $87.50
per week from the date of his last payment
until changed by order of this court."
The issues before us are:
(1) Whether the Workers' Compensation Court correctly
computed the average weekly wage of claimant at $87.50;
(2) Whether the payment of permanent partial disability
benefi'ts for an indefinite period of time was proper; and
(3) Whether the Workers' Compensation Court erred
in returning the files of the Workers' Compensation Court
without receiving additional medical testimony.
We shall discuss each issue in turn.
This accident occurred in February 1973. Therefore,
the applicable statute (since repealed) in effect was
section 92-703, R.C.M. 1947, as amended by Ch. 207, Sec. 3,
Laws of Montana (1967). That section fixed the amount of
weekly compensation to be paid for partial disability at a
percentage between 50% and 66 2/3 of "the difference between
the wages received at the time of the injury and the wages
that such injured employee is able to earn thereafter."
This exact percentage depends upon claimant's marital status
and the number of dependents.
"Wages" as used in then section 92-703, R.C.M. 1947,
was defined in then section 92-423, R.C.M. 1947, as follows:
"'Wages' mean the average daily wages received
by the employee at the time of the injury
for the usual hours of employment in a
day, and overtime is not to be considered."
We considered the term "average daily wage" in Mahlum
v. Broeder (1966), 147 Mont. 386, 412 P.2d 572, where we
stated:
.
". . [Tlhat the first step in the formula
for compensation is to determine the
average daily wage. This is a simple
arithmetical computation of dividing a
man's earnings over a reasonable period
of time by the total number of days he
worked, excluding all overtime. What
- -a reasonable period - -
is of time, - course,
of
depends - - circumstances - - - case.
on the of each
The period must be sufficiently - -to take
-- long -
into account seasonal fluctuations - hours,
for
wage rates, vacations, - any other factors
and
which may materially affect the average daily
wage." 147 Mont. at 394-95, 412 P.2d at 576-77.
(Emphasis added. )
The insurer contends that, under the foregoing case, and the
decision in Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d
556, that the Workers' Compensation Court in this case was
required to take the full earnings of the claimant for the
previous year, $954.30, and divide the same by 52 weeks, to
arrive at an average of $18.36 per week. The result to the
claimant would be that instead of receiving a percentage of
$87.50 per week as found by the Workers' Compensation Court,
he would receive a percentage of $18.36.
Whatever we may have said in previous cases, it appears
clear that the intent of former section 92-703, R.C.M. 1947,
with respect to partial disability, was to compensate the
injured employee by a percentage of the "difference between
the wages received at the time of the injury and the wages
that such injured employee is able to earn thereafter". In
reality, the section sets up a test of loss of earning
capacity. It is apparent here that the claimant did in fact
lose earning capacity by virtue of his compensable accident.
Not only was he unable to work fully at his job in the sales
yard, but in the operation of his farm, he found himself in
a situation where he could not lift weights in excess of 25
to 30 pounds and had to pay other help to perform jobs that
he usually performed. He definitely suffered a loss of
ability to earn wages. As we said in Mahlum, supra, the
determination of his average daily wage depends upon the
circumstances of each case. We agree with the Workers'
Compensation Court that in this case a determination that
his average daily wage would result in earnings of $87.50
per week was fairly computed and is within the objective of
such Workers' Compensation statutes. The ultimate objective
of such statutes is to reflect fairly the claimant's probable
future earning loss. 2 Larson, Workmen's Compensation
Law,
- S60.11 at 10-363.
When it is considered that the claimant's injury
adversely affected not only his ability to work in the
salesyard, but his ability to be an effective farmer as
well, the contention that the Workers' Compensation Court
awarded claimant a "windfall" must be rejected. His working
capacity was certainly reduced and his former ability to
earn $87.50 per week is established in the evidence.
-6-
The second issue brought by this appeal is the
ruling by the Workers' Compensation Court that compensation
is to be paid to the claimant "from the date of his last
payment until changed by order of this court." This is
error and must be corrected on remand.
The Workers' Compensation Court concluded the
claimant was "entitled to receive benefits for permanent
partial disability." Neither section 92-703 nor section
92-709, R.C.M. 1947, of the Workers' Compensation Act
relating to partial disability as they read at the time
of claimant's injury contain any authorization for an
open-ended award of compensation.
Section 92-703 provided that compensation be paid
not longer than 500 weeks subject to the proviso that
"compensation for partial disability resulting from the
loss of or injury to any member shall not be payable for
a greater number of weeks than is specified in section
92-709 for the loss of such member." Under section 92-709
claimant's injury to his right knee entitles him to no
more than 200 weeks of compensation. Jensen v. Zook
Brothers (1978), Mont . , 582 P.2d 1191, 1194,
35 St.Rep. 1066, 1070; Johnson v. Industrial Accident
Board (1971), 157 Mont. 221, 224, 483 P.2d 918, 920.
The third issue relates to insurer's contention that
the Workers' Compensation Court should have received
additional medical evidence which would assign a percentage
of disability based on the injury of claimant's knee.
The Workers' Compensation Court stated at the close
of the evidence that, "I think there has been some pretty
convincing testimony here."
The trial judge was obviously referring to the
evidence before him that claimant was unable to handle
the work in the salesyard or the work he had performed on
his farm; the evidence of claimant's wife as to his inability
to perform his usual farm work and the pain he suffered; and
the medical evidence that was in fact before the court. It
is not necessary that in determining disability, the Workers'
Compensation Court resort solely to medical evidence. We
held in Robins v. Anaconda Aluminum Co. (1978), Mont .
"We are of the opinion that the question
of disability is not a purely medical
question. In 3 Larson, Workmen's
Compensation Law, S79.53, it is pointed
out :
" I . .
. Disability is not a purely
medical question: it is a hybrid
quasi-medical concept, in which are
commingled in many complex combinations
the inability to perform, and the
inability to get, suitable work . . . 1 II
There was sufficient evidence before the Workers'
Compensation Court to support its finding of disability.
It should be remembered there are safeguards built into
the Workers' Compensation Law in Montana. In cases of
enumerated or scheduled injuries under section 92-709, a
loss such as here is subject to the limitations set forth in
the schedule in section 92-709; further, the Workers' Com-
pensation Court retains jurisdiction to reduce or terminate
disability payments to meet changing conditions under section
92-713, R.C.M. 1947, now section 39-71-739 MCA.
The order of the Workers' Compensation Court is modified
to limit claimant's payments for permanent partial disability
to a maximum of 200 weeks. In all other respects, the
W e Concur:
..............................
Chief Justice
yE-&-L&e9 Justices ------
Mr. Chief Justice Frank I. Haswell did not participate in
this cause.