No. 83-178
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
E. L. McDANOLD,
Claimant and Appellant,
-vs-
B. N. TRATJSPORT , I J
TC . , Employer,
and
B. N. T-RANSPORT, INC. ,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William T. Kelly; Kelly, Halverson & Sheehy, Billings,
Montana
Gene A. Picotte, Clancy, Montana
For Respondent :
Andrew J. Utick, Helena, Montana
William Brasher, Billings, Montana
- -- - - - - -- - - -
Submitted on Briefs: January 19, 1984
Decided: March 27, 1984
Filed:
- ? ;Y 84
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Claimant E.L. McDanold appeals from the judgment of the
Workers' Compensation Court, on remand from this Court,
denying any further entitlement to disability benefits. FJe
reverse and remand.
On June 23, 1971, claimant suffered a work-related
injury to his right ankle. Claimant had been securely
employed as a truck driver at a weekly wage of $162.80.
Following the injury, he was unable to return to his job as a
truck driver. Claimant could not find full time employment
until April of 1974 when he began work as a clerk in a
Montana Liquor Store.
Claimant received benefits for temporary total, and
permanent partial disability totalling $10,973.68.
On September 25, 1975, claimant's benefits were
terminated pursuant to an opinion of the Workers'
Compensation Division Bureau chief. The termination was
upheld by the Workers' Compensation Court. On appeal,
McDanold v. B.N. Transport, Inc. (Mont. 1981), 0 3 4 P.2d 175,
38 St.Rep. 1466, this Court held that the period of permanent
partial disability benefits was in addition to the period of
temporary total disability benefits. This Court also
attempted to give direction to the compensation court on
determination of the period of a permanent partial disability
"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."
McDanold at 634 P.2d 180.
Unfortunately, this direction may have been misleading. We
will attempt to remedy the confusion generated by that
opinion, other cases on the issue, and the practice of many
in the workers' compensation field.
This case was remanded to the Compensation Court with
directions to determine:
1. The end of the claimant's healing period.
2. Claimant's loss of earning capacity, if any, from
which the court shall determine claimant's right to receive
benefits under former section 92-703, R.C.M. 1947.
3. Claimant's disability rating as to the whole man if
the court determines that he may proceed under section
92-703, 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. 1947, whichever is
applicable, subject to the maximum of 180 weeks.
5. The claimant's costs and attorney fees pursuant to
section 39-71-611, MCA, if he is found to be entitled to
further benefits.
The Workers1 Compensation Court found:
1. The claimant's healing period ended April 9, 1973.
2. Claimant suffered a loss in earning capacity.
3. Claimant had a 25% permanent partial whole man
disability.
4. Claimant is entitled to 125 weeks of benefits (25% x
500).
The court then went on to calculate the claimant's
entitlement by comparing his weekly wage when injured to
actual wages earned in subsequent years. When the claimant's
store clerk wages climbed, due to inflation, to a rate higher
than his 1971 pre-injury wages as a truck driver, the court
found his entitlement had ended. The court concluded that
claimant had been paid more than the $9,593.95 owed him, and
was entitled to no further benefits.
Claimant again appeals to this Court, raising the
following issues:
1. Was claimant's healing period incorrectly
determined?
2. Is claimant's injury limited to his right foot at
the ankle?
3. Is the determination of 25% whole man disability
inconsistent with the evidence and contrary to law?
4. How is a disability rating to be applied to weekly
benefits and period of benefits?
5. Costs and attorney fees.
Temporary Total Disability
Claimant challenges the Compensation Court's finding
that his healing period ended April 9, 1973. Claimant
concedes that so far as the medical evidence wa.s concerned
the finding is well supported. Claimant argues, however,
that after he had healed as far as his injuries would permit,
he was still unable to find and hold full time employment
until April 12, 1974. Claimant suggests that during the
interim he was entitled to benefits under a "temporary
partial" status.
We disagree. Claimant's concept of temporary partial
disability is not supported by statute or case law. Nor was
such a period found to be applicable to this case in the
first appeal of this matter. McDanold v. B.N. Transport,
Inc. (Mont. 1981), 634 P.2d 175, 38 St.Rep. 1466.
CORRECTION. In preparing this opinion for pub-
lication, we noted in our verification of titles and
Hon. Frank B. Morrison citations the matters listed below. Corrections have
Justice, Supreme Court been made on our copy of the opinion.
Room 414 Justice Building
215 North Sanders
Helena, Montana 59620
May 15, 1984
/- --.< ,
McDanold v. B. N. Transport, Inc., ~ o ( B - l Y ! ~ a r c h 27, 1984
\
Page 5, line 14 from bottom --- Hielson v. Beaver Pond, Inc. should
read Nielson v. Beaver Pond, Inc.
WEST PUBLISHING COMPANY
Box 3526
S . Paul, MN 55165
t
Our present statutory scheme considers a worker
temporarily totally disabled until such time as the worker is
as far restored as the permanent character of his injuries
will permit. "When the claimant has reached this stage in
his healing process temporary total disability ceases, and
partial disability begins if there is permanent partial
disability." McAlear v. McKee (1976), 171. Mont. 462, 460,
558 P.2d 1134, 1137.
Claimant argues that medical science cannot have
restored him to his full permanent partial ability prior to
the time that he was actually able to resume regular full
time employment. The inconsistency between the medical
evidence and the evidence of ability to work is readily
apparent. The Compensation Court should not rely exclusively
on medical opinions of restoration when other credible
evidence clearly demonstrates the healing process is not yet
complete. In this case, however, the trial court's
determination of the end of the healing period is supported
by substantial credible evidence, and will not be overturned
on appeal.
r/
Aelson v. Beaver Pond, Inc. (Mont. 1983), 661
P.2d 47, 49, 40 St.Rep. 489, 491.
Similarly, there is substantial medical evidence to
support the trial court's finding that claimant's injury is
confined to his right foot at the ankle.
Permanent Partial Disability
Claimant seeks permanent partial disability benefits for
actual loss in his ability to earn under section 92-703
R.C.M. 1947. That statute, which has subsequently been
repealed and replaced with section 39-71-703, MCA, read in
part, as follows:
" [Wlhere the injured employee has a wife and three
(3) children, or four (4) children residing within
the United States who would be entitled to
compensation in case of his death, sixty-five per
centum (65%) 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, subject to a maximum compensation of
fifty-five dol1a.r~ ($55.00) per week Such . . ..
compensation shall be paid during the period of
disability, not exceeding however, five hundred
(500) weeks . . .."
The compensation and benefits provided for in the
Workers' Compensation Act are based in part on the concept of
disability, the inability or limited capacity of the injured
worker to earn in the open labor market. Section 39-71-121,
MCA .
A person is totally disabled when he totally loses his
actual earnings or earning capability. Section 39-71-11.6(13)
MCA. Partial disability is a similar loss less than total.
Section 39-71-116 (12), MCA.
A claimant may seek permanent partial disability
benefits under section 39-71-703, MCA, for actual loss of
earning capacity. Alternatively, his claim may be brought
under sections 39-71-705-708, MCA which purportedly indemnify
the worker for possible prospective loss in earning capacity
due to injury to certain members of his body, whether an
actual loss in earning capacity is demonstrable or not.
Walker v. H.F. Johnson, Inc. (1978), 180 Mont. 405, 591 P.2d
181.
Under either route, compensation is to be proportional
to the degree of disability resulting from the injury. This
is axiomatic. Under section 39-71-703, MCA, compensation is
made proportional to disability by the phrase ''a.ctua1
diminution in the worker's earning capacity." The greater
the disability the greater the compensation. Similarly,
under 92-703 R.C.M. 1947 (1971), compensation was made
proportional by the phrase "difference between the wages
received at the time of the in.jury and the wages that such
injured employee is able to earn thereafter."
Apparently a practice has arisen among those handling
Workers' Compensation claims whereby benefits are no longer
proportional to disability. The apparent method is to limit
the number of weeks of benefits under 92-703 (now 39-71-703)
by applying the disability rating to a maximum of 500 weeks.
Thus, a person who suffered a 30% disability would be limited
to 150 weeks (30% x 500) of compensation. But the degree of
disability is also reflected in the weekly rate of
compensation as described above. The net effect is to twice
discount the benefits. This method of compensation violates
a fair reading of the relevant statutes and offends even the
most basic sense of fairness.
Section 39-71-703 (2) and its predecessors provide that
the compensation, proportional to disability as provided for
in part ( I ) , "shall be paid during the period of disability."
The 500 week limit is simply a statutory maximum period for
such compensation. The Legislature has further limited this
period of disability to the number of benefit weeks for the
comparable schedule injury under sections 39-71-705-708, MCA,
but only when the injury is specifically listed in the
schedule. Walker v. H.F. Johnson, I ~ c . (1979) 180 Monte
405, 413, 591 P.2d 181, 185. Again, the same rule is found
in 92-703 R.C.M. 1947: " [PIrovided, however, that
compensation for partial disability resulting from the loss
- - injury - any member shall not he pays-ble for a greater
of or to
number of weeks than is specified in section 92-709 [now
39-71-7051 for the loss of such member." (emphasis added.)
There is no reason to apply the degree of disability to
the period of compensation under section 92-703, now
39-71-703, and we so held in Walker. Instead, the
determination of disability is to be used in finding
diminution in the capacity to earn as demonstrated below.
In contrast, section 39-71-706 (former 92-709) provides
for applying the percentage of disability in determining the
number of weeks of compensation under the indemnity
alternative, where injury is less than total loss of a
scheduled member, or where the injury is a "whole man" injury
not scheduled. Unfortunately, these provisions ha.ve also
been applied to claims under 703. For example, in Head v.
Larson & Missoula Service Co. (1979), 181 Mont. 129, 592 P.2d
507 this Court attempted to apply a 25% disability to the 500
weeks period under section 92-703.1 R.C.M. 1947 now
39-71-703, MCA to come up with 125 weeks of benefits. This
procedure is in direct conflict with our holding in Walker v.
H.F. Johnson, Inc. (1979), 180 Mont. 405, 591 P.2d 181.
"If the right to elect between sections 92-709 [now
39-71-705 (indemnity)] and 92-703.1 [now 39-71-703
(actual loss)] is to remain intact, a claimant
whose injury was less than total and not among
those listed in 92-709 [39-71-705 (scheduled)]
could avoid the durational limitations recited in
section 92-709 [such limitations are now found in
39-71-7061 by simply electing to recover under
92-703.1 [now 39-71-7031." - at 413.
Id.
We find the procedure used in Head is incorrect and
expressly overrule the endorsement of that methodology.
Disability benefits under section 92-703 R.C.M. 1947 now
39-71-703, MCA are to be paid for the duration of the
disability not exceeding 500 weeks and subject only to period
limitations specifically listed in the indemnity schedule for
loss of the member (one foot at the ankle - 180 weeks).
Unfortunately, this Court incorrectly explained the
calculation of the period of benefits in the first appeal of
this matter, and thus established the "law of the case."
However, the error is inconsequential.
We will hold as a matter of law that the evidence does
not support a disability rating of less than 5 0 % . Therefore
even if the 5 0 0 weeks were reduced by the percentage of
disability as suggested in our first opinion the claimant
would have 2 5 0 weeks but because of the schedule limitation
of 1 8 0 weeks is only entitled to 1 8 0 weeks. This is a
specific member injury with a maximum entitlement of less
than what claimant would receive with a body disability.
Therefore, it is harmless error to calculate in the manner
suggested by our first opinion.
Determination of Weekly Benefit Rate
Under section 92-703, R.C.M. 1947, now section
39-71-703, MCA disability is always to be determined by
evaluation of the whole -
man. The disability rating is to be
determined by comparing earning capacity absent injury with
earning capacity given the injury.
In this case, the trial court's determination that
claimant is 2 5 % disabled flies in the face of the evidence
that claimant's actual rate of earnings fell by more than 5 0 %
under favorable conditions of subsequent employment. This
evidence came in the form of an uncontradicted comparison of
wage scales for claimant's pre-injury and post-injury
employments - - April, 1 9 7 4 .
as of We therefore hold as a matter
of law that the evidence does not support a disability rating
of less than 5 0 % .
The trial court relied on Olson v. Manion's Inc. ( 1 9 7 3 ) ,
162 Mont. 1 9 7 , 5 1 0 P.2d 6 to support a method of calculating
weekly benefits by which the benefits would progressively
decrease as inflation raised the wage of the claimant in his
subsequent employment. This method is a misapplication of
the law in Olson and directly contradicts later holdings of
this Court that pre-injury and post-injury wages must be
compared for the same period of time.
"Unreliability of post injury earnings may be due
to a number of variables:
"1 . Increase in general wage levels since the
accident.
"2. Claimant's own maturity or training.
"3. Longer hours worked by the claimant after the
accident.
"4. Payment of wages disproportionate to capacity
to work out of sympathy to claimant.
"The ultimate objective of the disability test is
by discounting the above variables to determine the
wage that would have been paid in the open labor
market under normal employment conditions to
claimant as injured, taking wage levels, hours of
work, and claimant's age and state of training as
- exactly - -
of the same used for calculating
actual wages earned before the injury." Fermo v.
Superline Products (1978), 175 Mont. 345, 349, 574
P. 2d 251, 253 (emphasis added) ; see also Walker v.
H.F. Johnson, Inc. (1978), 180 Mont. 405, 412, 591
P.2d 181, 185.
The special concurrence in the first appeal of this matter
pointed out, "it would be patently unfair to compare wages in
1974 with wages in 1971." McDanold at 634 P.2d 181. Yet
this is precisely what the Compensation Court did. The
weekly benefit under the statute then applicable, 92-703
R.C.M. 1947, was 658 of the difference in earning capacity
subject to a maximum of $55.00. In this case claimant is
entitled to the maximum $55.00 times 180 weeks.
Claimant's total entitlement is as follows:
Temporary Total Disability
June 24, 1971 - Dec. 22, 1971
26 weeks x $65.00 $ 1,690.00
Dec. 23, 1971 - Aug. 20, 1972
34 weeks x $60.00 $ 2,040.00
Aug. 21, 1972 - April 19, 1973
33 1/7 weeks x $55.00 $ 1-,822.70
Permanent Partial Disability
180 weeks x $55.00 $ 9,900.00
Total $15,452.70
The case is remanded to the Workers' Compensation Court
with directions to enter judgment in accordance with this
opinion and to award reasonable c
We concur:
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Chief Justice