NO. 80-295
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
E. L. McDANOLD,
Claimant and Appellant,
VS.
B. N. TRANSPORT INC., Employer,
and
B. N. TRANSPORT, INC.
Defendant and Respondent.
Appeal from: Workers' Compensation Court
Honorable William E. Hunt, Judge presiding.
Counsel of Record:
For Appellant:
William T. Kelly, Billings, Montana
Victor R. Halverson, Jr. argued, Billings, Montana
Gene Picotte argued, Helena, Montana
For Respondent :
Utick and Grosfield, Helena, Montana
Andrew Utick argued, Helena, Montana
Gary Peterson, Billings, Montana
Submitted: April 24, 1981
Decided: September 3, 1981
Filed: SEP -3 1981
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Claimant, E.L. McDanold, appeals from an order denying
his petition for rehearing, entered in the Workers' Compensa-
tion Court in and for the area of Billings, the Honorable
William E. Hunt, presiding. The court previously had entered
judgment against the claimant upon his original petition for
hearing on June 10, 1980. The judgment was based on the
court's conclusions that the claimant had been paid benefits
in excess of the proper amount, that he is not entitled to
further benefits, and, that he is not entitled to receive
costs or attorney fees under section 39-71-611, MCA. The
claimant was not required to refund any of the excess benefits.
We reverse the lower court's judgment that the claimant
has been paid excessive benefits and is not entitled to
further benefits. We remand the case for further proceedings.
The following issues are dispositive:
1. Whether the durational limits on workers' compensation
benefits imposed by former section 92-709, R.C.M., 1947 (the
specific injury/indemnity statute), commence to run only
upon claimant reaching maximum healing, and thus are in
addition to all temporary total disability benefits received
under former section 92-701, R.C.M., 1947.
2. Whether the claimant, after attaining maximum healing,
could elect to proceed under either the specific injury
"indemnity" statute (section 92-709, R.C.M., 1947), or
under the "disability" statute (section 92-703, R.C.M. 1947).
3. Whether the claimant is entitled to a permanent
partial disability award based upon a rating as to the whole
man.
We find the Workers' Compensation Court erred in conclud-
ing that the periods of benefits prescribed by former section
92-709, R.C.M., 1947, for a specific injury limited the sum
total of all benefits, including temporary total disability
and permanent partial disability compensation. We hold the
limitation period applied only to benefits paid under former
section 92-709 or former section 92-703, R.C.M., 1947.
Because of the grounds of its decision, the lower court did
not make further findings necessary to decide whether the
claimant is entitled to more benefits. Therefore, we must
remand the case.
On June 23, 1971, while working in the course and scope
of his employment with Northern Pacific Transport Company
(now B.N. Transport, Inc.), claimant suffered an injury to
his right ankle. The injury occurred as claimant stepped
out of his transport truck and into a hole. Claimant's
preinjury wage was $162.80 per week. At the time of the
accident, he was married and supporting five minor children.
After his injury the claimant was treated by several
doctors. The claimant underwent surgery to his ankle in
January 1972 and again in January 1973. Following his
injury, the claimant was unable to return to his job as a
truckdriver.
Claimant was able to find only part time work at lesser
hourly wages than his prior employment until April 1974,
when he accepted full time work as a Montana Liquor Store
clerk at an hourly wage of $2.83. Claimant continues to
have problems stemming from his ankle injury which limit him
to store clerk duties at the liquor store.
Claimant was placed on temporary total disability by
B.N. Transport, Inc. (a self-insurer) immediately following
the injury. The claimant was compensated on that basis,
under former section 92-701, R.C.M., 1947, from June 24,
1971, to April 11, 1974--a period of 146 weeks.
-3-
Claimant was placed on permanent partial disability on
April 12, 1974. He was compensated on that basis for a
period of 76 weeks, until September 25, 1975.
On September 25, 1975, claimant's benefits were terminated
by B.N. Transport, Inc. pursuant to an opinion rendered by
the Workerst Compensation Division Bureau Chief that due to
the nature of the claimant's injury, maximum benefits were
limited to 180 weeks by section 92-709. In light of the
fact that B.N. Transport had paid benefits under both temporary
total and permanent partial compensation plans for 222
weeks, the Bureau Chief concluded that the employer had
exceeded compensation requirements.
In April 1979, claimant McDanold petitioned the Workerst
Compensation Court for an order which would require the
employer to continue paying benefits for the injury to his
right ankle. In October 1979, a pretrial conference was
held resulting in a pretrial order being issued. Trial was
held in November 1979.
Following trial, the Workers' Compensation Court con-
cluded that the claimant was entitled to a maximum of 180
weeks of benefits including both temporary total disability
benefits and permanent partial disability benefits. The
court further concluded that the claimant's employer had met
and exceeded its statutory liability for benefits. The
court's findings, conclusions, and judgment denying further
benefits were entered on June 10, 1980. Claimant filed a
petition for rehearing, which was denied by order on July
22, 1980, and claimant appeals from this order.
B.N. Transport contends that claimant has not proceeded
in a timely manner in raising the issue that benefits paid
for the period of temporary total disability are separate
from and not included in the period of benefits prescribed
by the specific injury statute. B.N. argues that such
theory was not included in the pretrial order which took the
place of claimant's pleading, was not included in the claimant's
proposed findings and conclusions, and was only raised in
the claimant's post-trial briefs. The trial court required
the submission of briefs by both claimant and B.N. prior to
the making of its decision. In such briefs, claimant set
forth his contentions and legal authorities on the question
of the separation of the periods of temporary total disability
from benefits under the specific injury statute. We have
held that issues not raised at the trial level before the
Workers1 Compensation Court will not be reviewed on appeal.
Greger v. United Prestress, Inc. (1979), - t .- 590
Mon ,
P.2d 1121, 1126, 36 St.Rep. 268, 275. We find that this
issue of law was properly raised before the Workers' Compensation
Court prior to the entry of its findings, conclusions and
judgment, and that the respondent did have the chance to be
heard on the issue; therefore, the issue is properly reviewable
on this appeal.
Former section 92-709, R.C.M., 1947, the specific
injury statute, was amended several times after the date of
the claimant's injury. On the date of the injury, June 23,
1971, the statute appeared in pertinent part as follows:
"Compensation - - -of specified injuries. In
in case
case of the following specified injuries, the corn-
- -
pensation in lieu of any other compensation pro-
vided by this act, shall be as follows ...
". . . where the injured employee has a wife and
four (4) or more children, or five (5) or more
children residing within the United States who
would be entitled to compensation in case of his
death, sixty-six and two-thirds per centum (66
2/3%) of the wages received at the time of the
injury, subject to a maximum compensation of
sixty dollars ($60.00) per week, subject to
change when the number of beneficiaries or de-
pendents increases by birth, or decreases, and
subject in all cases to a minimum compensation of
thirty-four and 50/100 dollars ($34.50) per week,
and shall be paid for the following periods:
"For loss of: ...
"One foot at the ankle ... 180 weeks ...
"Partial loss or partial loss of use: Indemnity
benefits for permanent partial loss or loss of
use of a member may be for proportionate loss or
loss of use of the member. .. "
We note that the 1971 legislature amended section 92-
709, which amendments became effective on July 1, 1971,
eight days after claimant's injury. Chapter 140, Laws of
Montana (1971). As amended, the statute read in pertinent
part as follows:
"Compensation - - -of specified injuries. In
in case
case of the following specified injuries, compen-
sation for temporary-total disability shall be
paid at the weekly rate providd [sic] G c C o n
---
92-701, R.C.M., 1947, during the healing period,
- in no
but- - event shall the healing period exceed
twenty-six --
(26) weeks. In addition thereto but in
lieu of any other compensation provided by this act
shall be as follows: the compensation shall be
paid at the weekly r a c p r o v i d e d e z 92-703,
---
R.C.M., 1947, and shall be paid for t h e l o w i n g
periods . . ."
Thus, a healing period was specifically "tacked on" to'the
indemnity benefits period beginning in July 1971, but was
limited to 26 weeks.
The statute was again amended in 1973 to read as follows:
"Compensation - - -of specified injuries. In
in case
case of the following specified injuries, compensa-
tion for temporary total disability shall be paid at
the weekly rate provided in section 92-701.1, during
the healing period, but in no event shall the healing
for loss of a member exceed twenty-six (26)
period - - - -
weeks. In addition thereto but in lieu of any other
compensation provided by this act, compensation -
for
loss of a member shall be paid at the weekly rate
---
provided in section 92-703.1, and shall be paid for the
following periods:
"For loss of: ...
"One foot at the ankle ... 180 weeks ...
"In - cases of permanent injury - -a member less
- all to
---- ..
than loss of t G member com~ensationshall be ~ a i d
_ L
for total temporary disability, without limitation
- to time under section 92-701.1. In addition
as - -
thereto, indernnitv benefits for ~ e r m z e n tdisabilitv
L
to-a member - mekers - - be proportionate -
- or shall to
loss or loss of use of the member or members - -
------- at the
weekly rate provided in section 92703.1. . ."
(Chapter 204, Laws ofMontana (1373) )
In 1973 the legislature provided an unlimited period of
benefits for partial loss of a member during healing, the
benefit period prescribed under section 92-709 to begin only
after healing had ended.
The statute was again amended in 1975 (Ch. 386, Laws of
Montana (1975)), which amended version now is in effect:
"Compensation - - -of specified injuries. (1)
in case
In addition to temporary total disability benefits
allowed in this act, indemnity benefits for loss
of a member shall be paid at the weekly rate pro-
vided in section 92-703.1 and shall be paid for the
following periods: . . ." (Former section 92-709, R.C.M.
1947, now section 39-71-705, MCA.)
We have reviewed the legislative history of section 92-
709, R.C.M., 1947, in order to eliminate potential confusion
because of the numerous amendments. This legislative history
shows the development by the legislature of the statutory
concept that compensation for temporary disability benefits
are to be allowed in addition to indemnity benefits for loss
of a member. We conclude that section 92-709, R.C.M., 1947,
as in effect on June 23, 1971, must be construed in a similar
manner.
In Jones v. Claridge (1965), 145 Mont. 326, 400 P.2d
888, this Court quoted from the memorandum opinion of the
District Court as follows:
"'The specific injury statute (section 92-709, R.C.M.
1947, as amended) is construed as applying to
awards for residual injuries only and is in addi-
tion to awards for temporary disability. Stated
another way, a claimant is entitled to an award for
temporary disability (total or partial) during
the healing period plus an indemnity award under
section 92-709 covering any permanent residual
based on loss of use or loss of function of the
specific members unrelated to loss of earnings or
earning power. '
" I . ..The award for the residual, however, must
not exceed the maximums under section 92-709.'"
145 Mont. 328, 400 P.2d 889.
No issue was raised in the Jones case as tothe "tacking on"
of the periods under the temporary and residual awards. The
lower court decision was affirmed.
Construing the section liberally in the injured
workman as required under former section 92 R.C.M.,
1947, now section 39-71-104, MCA, we hold that the period
during which claimant r'eceived temporary total disability
benefits under former section 92-701, was separate from and
in addition to the period during which he could receive
benefits under section 92-709, the specific injury "indemnity"
statute. Therefore, the claimant here may not have exceeded
his statutory benefits, depending upon the extent of his
injury and the length of his healing period. The case must
be remanded for findings on those questions.
Former section 92-703, R.C.M., 1947, allowed compensation
for loss of earning capacity, whereas section 92-709 allowed
indemnity compensation for the loss of a member or the loss
of use of a member. Section 92-703 was expressly made
subject to the time limits prescribed in section 92-709.
For loss of one foot at the ankle, section 92-709 allowed
payments for up to but not exceeding 180 weeks. It also
provided that proportionate benefits could be paid for
partial loss of use of a member. Therefore, 180 weeks is
the maximum period during which claimant could receive
benefits under either statute.
The right to elect to proceed under either section
92-703 for loss of earning capacity or section 92-709 for
loss of a member was well settled. Spieth v. Stuart (1956),
130 Mont. 216, 299 P.2d 106, held that such a right of election
exists, and the right has been carried down to the present
day. It is true the legislature quickly amended section 92-
703 to subject that statute to the periods prescribed in
section 92-709, Ch. 234, Laws of Montana (1957). It is
important to note, however, that the amendment did not affect
the right of a claimant to elect between the statutes. Rather,
it merely set the maximum period of benefits payable under
section 92-703 equal to the period listed in section 92-709
for the enumerated injuries.
The distinction becomes important in this case. The
claimant here may be found to have a certain percentage
impairment of his foot and ankle. Under section 92-709, he
would receive benefits for a period equal to that same
percentage of 180 weeks. If, however, the claimant can show
that he has suffered a loss of earning capacity as measured
under the terms of former section 92-703, then his injury can
be translated into a percentage impairment of the whole man.
In that event, he could receive benefits for a period equal
to the whole man percentage impairment multiplied by 500 weeks,
subject to a maximum of 180 weeks. The latter period may very
well be longer than the period calculated under section 92-709.
Such an approach fulfills this Court's duty to both abize by
the legislature% directive as to maximum benefit periods and
also to liberally construe the act in favor of the injured
workman.
The above example is a simplification. The claimant's
percentage impairment rating is not the sole factor to be
used in determining the amount of benefits he should receive;
such a rating is an expert's medical opinion and constitutes
but a single item of evidence, to be considered along with
other evidence presented. Jensen v. Zook Bros. Const. Co.
(1978), 178 Mont. 59, 64, 582 P.2d 1191, 1194. The above
example is used only to set forth the principle involved in
this appeal.
Section 92-703 stated the appropriate test for determining
whether a claimant had suffered any loss of earning capacity.
Under the former statute, the claimant was to be paid benefits
equal to a fixed percentage of the difference between the
wages received at the time of injury and the wages he was able
to earn after maximum healing was reached. Olson v. Manion's
Inc. (1973), 162 Mont. 197, 510 P.2d 6. (See also, the explan-
ation of Olson in Walker v. H. F. Johnson, Inc. (1978),
Mont . - 591 P.2d 181, 184, 35 St.Rep. 1667, 1671, modified
,
on rehearing (1979), - Mont -I ,
- P.2d - 35 St.Rep.
1673A.
The lower court did not reach the issue whether claimant
is entitled to receive benefits under former section 92-703,
R.C.M. 1947. The case must be remanded for findings as to
loss of earning capacity, if any, in order to determine whether
the claimant is entitled to further benefits.
Whether the claimant is entitled to a disability rating
as to the whole man depends on whether he can show loss of
earning capacity in order to proceed under former section
92-703, R.C.M., 1947, as it stood on the date of injury and
as it was construed by this Court.
If the Workers' Compensation Court finds that claimant
has shown a requisite loss of earning capacity, then the
court should proceed to determine the extent of the disability
rating of the claimant.
IV.
The case is remanded to the worker's Compensation Court
I
for determination of the following: i
i
(1) The end of the claimant's healing period.
(2) Claimant's loss of earning cap~city,if any, from
which the court shall determine claidant's right to receive
I
benefits under former section 92-703, R.C.M., 1947.
(3) Claimant's disability rating ad to the whole man if
the court determines that he may prodeed under section 92-
I
703, R.C.M., 1947.
(4) Exclusive of the healing period, the number of weeks
of benefits to which the claimant is still entitled under
section 92-703, or 92-709, R.C.M., 1g47, whichever is applicable,
subject to the maximum of 180 weeks. I
(5) The claimant's costs and attordey fees pursuant to
section 39-71-611, MCA, if he is foudd to be entitled to
further benefits.
We Concur:
.............................
Justices
Mr. J u s t i c e Frank B. M o r r i s o n , J r . , s p e c i a l l y c o n c u r s :
I concur i n t h e r e s u l t . However, t h e m a j o r i t y o p i n i o n
i s vague w i t h r e f e r e n c e t o t h e method t o be used i n c a l - c u l a t -
i n g " l o s s of e a r n i n g c a p a c i t y " . The m a j o r i t y n o t e s t h a t t h e
c l a i m a n t i s t o be p a i d b e n e f i t s e q u a l t o a f i x e d p e r c e n t a g e
of t h e d i f f e r e n c e between t h e wages r e c e i v e d a t t h e t i m e of
i n j u r y and t h e wages t h e c l a i m a n t was a b l e t o e a r n a f t e r maxi-
m m h e a l i n g was r e a c h e d .
u
I n t h i s c a s e c l a i m a n t was i n j u r e d J u n e 23, 1971, and
r e t u r n e d t o work i n A p r i l of 1974. C l a i m a n t ' s p r e i n j u r y wage
was $162.80 p e r week. C l a i m a n t r e t u r n e d t o work i n 1974 a t a n
h o u r l y wage of $2.83 p e r hour. A t f o r t y h o u r s p e r week t h i s
would e q u a l $113.20 p e r week. However, i t would b e p a t e n t l y
u n f a i r t o compare wages i n 1974 w i t h wages i n 1971. During t h a t
t h r e e - y e a r p e r i o d of t i m e , t h e r e was a s u b s t a n t i a l growth i n
wages f o r n e a r l y a l l o c c u p a t i o n s .
The s t a t u t e c o n t e m p l a t e s a comparison of p r e i n j u r y and
p o s t i n j u r y wages. However, t h e comparison must be made f o r t h e
same p e r i o d of t i m e . The Workers' Compensation C o u r t s h o u l d
c o n s i d e r e v i d e n c e r e l a t i n g t o what c l a i m a n t would have made
d r i v i n g h i s t r a n s p o r t t r u c k i n 1974 and compare t h a t w i t h t h e
wages e a r n e d a s a c l e r k f o r t h e Montana Liquor S t o r e . Loss of
e a r n i n g c a p a c i t y c a n o n l y be r e a l i s t i c a l l y d e t e r m i n e d t h r o u g h
s u c h a n approach.
I do n o t b e l i e v e t h a t t h e m a j o r i t y h o l d s t o t h e c o n t r a r y .
The i s s u e i s simply n o t developed. Upon remand I u r g e t h e
Workers' Compensation C o u r t t o f o l l o w t h i s approach i n c a l c u l a t -
i n g " l o s s of e a r n i n g ca ty"