No. 8 7 - 1 6 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
ELAINE A. SEDLACK,
Claimant and Appellant,
-vs-
BIGFORK CONVALESCENT CENTER,
Employer,
and
CHURCH MUTUAL INSURANCE,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Trieweiler Law Firm; Terry N. Trieweiler argued,
Whitefish, Montana
For Respondent :
Keller, Reynolds, Drake, Sternhagen & Johnson; G.
Curtis Drake argued, Helena, Montana
Submitted: November 3 0 , 1987
Decided : February 10, 1988
Filed: 0 1988
-
Clerk
Mr. Justice John Conway Harrison delivered the Opinon of the
Court.
Elaine Sedlack, a registered nurse, appeals the Workers'
Compensation Court's judgment denying her permanent partial
disability benefits under 5 39-71-703, MCA (1983). ~e
reverse the judgment and remand the matter to the Workers'
Compensation Court.
Sedlack worked four days per week at the Bigfork
Convalescent Center in January, 1983; she chose not to work a
full five-day work week. On January 14, 1983 she injured her
back when she jumped away from a patient who tried to kick
her. She saw a doctor about the injury and was told to rest
her back. She got one week's worth of bedrest before
returning to work at the convalescent center. She earned
$8.05 per hour at the time she was injured. She continued to
work at the convalescent center until January 1984, when she
resigned so she could accept a job with the Flathead County
Health Department as a nurse who visits homebound patients.
In May, 1986, she earned $8.50 per hour in the new job and
she would have liked to work a five-day work week because of
the number of cases.
Dr. George Ingham, an orthopedic surgeon, is treating
her for her back injury, which he initially thought was an
early onset of sciatica. When Sedlack's back pain flared in
1 The cited section was amended by the 1987 Legislature.
It now makes an award of permanent partial disability
"66 2/3% of the difference between the worker's actual
wages received at the time of the injury and the wages
the worker is qualified to earn in the worker's job
pool, subject to a maximum compensation rate of one-half
the state's average weekly rate at the time of the
injury."
September, 1985, he ordered her to rest up. She did not work
from September 23, 1985 to October 8, 1985, during which time
the respondents paid temporary total disability benefits.
Dr. Ingham advised Sedlack after this spell that she should
not work more than four days per week. On March 13, 1986,
Sedlack filed for permanent partial disability benefits of
$102.78 per week for 500 weeks under 5 39-71-703, MCA. The
parties later agreed that $110.72 per week was the proper
disability rate. Dr. James Burton, also an orthopedic
surgeon, examined Sedlack for the respondents. He testified
via deposition that he believes Sedlack is suffering nerve
damage from a slipped disk. Dr. Ingham testified by
deposition that he believes the problem is degenerative disk
disease compounded by the injury. Neither doctor submitted
an impairment rating.
Norm Johnson, a Job Service counselor, also testified
via deposition on behalf of Sedlack. He said the injury has
reduced the percentage of jobs she could compete for in
Flathead County from 53 percent to 17 percent, a 68 percent
reduction. He conceded, however, that he did not foresee
that Sedlack would have to settle for a job paying less than
her current situation.
On May 21, 1986 a hearings officer heard testimony in
the case. He subsequently filed "findings of facts and
conclusions of law" that the Workers' Compensation Court
adopted on March 6, 1987. However, the hearings officer did
not make findings of fact, he only recited the testimony that
had been presented. Thus, we have at least three possible
"findings" as to the nature of the injury:
11. Dr. Ingham's initial impression was
that the claimant had early sciatica.
17. Dr. James R. Burton ...told her
he thought she had a slipped disk that
was pressing on the ligaments causing
them to go into spasm and affecting the
nerves ...
18. Her treating physician, Dr. Ingham,
diagnosed her condition as being a
combination of degenerative disk disease
and the industrial injury. ..
But we do not have an indication that one of these is to be
accepted to the exclusion of the other two. Although it is
vital that findings of fact be based on the evidence
presented, it is equally crucial that the findings be
consistent and support the same conclusions of law. Rules
52 (a), 53 (e), M.R.Civ.P. These recitals of testimony fail
that requirement.
In the conclusions of law, the hearings officer stated:
- claimant - establish - -
The did that she
suffered an injury arising - occurring
and
- - course - - em~lovment--
in the of her L L
with the
Bigfork Convalescent Center. The claim
was accepted as compensable by the
defendant Church Mutual Insurance Company
who paid temporary total disability
benefits from September 23, 1985 through
October 8, 1985. There is no dispute
that the claimant is as far restored as
the permanent character of her injuries
willTpermit. However, - - - proven
she has not
by a preponderance of the credible
evidence that she has an actual - -of
loss
earnings to support an award of permanent
partial disability benefits under Section
39-71-703, MCA. No evidence was
presented as to the wage being paid the
position she held with the Bigfork
Convalescent Center as found necessary in
McDanold v. B.N. Transport, Inc., -
.
Mont , 679 P.2d 1188 (1984).
The trial in this case was held
approximately one month prior to the
Montana Supreme Court decision of - -v.
Dunn
Champion International Corporation, 43
St.Rep. 1124 (1986) which held that a
claimant in similar circumstances was not
entitled to permanent partial disability
benefits as an actual loss of earnings
when in fact she was able to earn as much
or more than she was earning at the time
of the injury. (Emphasis added.)
Thus, the Workers' Compensation Court entered judgment
denying Sedlack permanent partial disability benefits on
March 6, 1987.
Sedlack presents two issues on appeal: Does
§ 39-71-703, MCA, require her to prove an actual wage loss or
only a reduction in her earning capacity? Is there
substantial evidence to support the Workers' Compensation
Court's conclusion that she had sustained no permanent
partial disability when she had proven she was capable of
working five days a week before the injury, but restricted to
four days of work each week after the injury?
The respondents, in turn, argue that the judgment should
be affirmed since there was sufficient credible evidence to
support the Workers' Compensation Court's conclusion that
Sedlack had not suffered a wage loss. Resolution of
Sedlack's first issue is dispositive of this case.
Section 39-71-703(1), MCA, as it read before its
amendment in 1987, controls since Sedlack's injury occurred
in 1983. See, Buckman v. Montana Deaconess Hospital (Mont.
1986), 730 P.2d 380, 382, 43 St.Rep. 2216, 2218. That
section provided:
(1) Weekly compensation benefits for
injury producing partial disability shall
b e 6 6 2/3% of t h e actual diminution in
the- worker's earning capacity measured in
- - . .
dollars, subject to a maximum weekly
compensation of one-half the state's
average weekly wage . . . (Emphasis
added. )
This Court defined impairment of earning capacity in a
personal injury context as "the permanent diminution of the
ability to earn money in the future." Thomas v. Whiteside
(1966), 148 Mont. 394, 397, 421 P.2d 449, 451. Earning
capacity is not determined by comparing pre-injury wages with
post-injury wages; it includes factors of age, occupation,
skills and education, previous health, number of productive
years remaining, and degree of physical or mental impairment.
Thomas, 421 P.2d at 451.
The correct test for loss of earning capacity, cited
time and again, is whether the industrial accident has caused
"a loss of ability to earn in the open labor market."
Shaffer v. Midland Empire Packing Co. (1953), 127 Mont. 211,
213-14, 259 P.2d 340, 342; Fermo v. Superline Products
(1978), 175 Mont. 345, 348, 574 P.2d 251, 253; Hafer v.
Anaconda Aluminum Co. (1982), 198 Mont. 105, 109-10, 643 P.2d
1192, 1195, aff'd on remand 684 P.2d 1114, 41 St.Rep. 1403;
Dunn v. Champion International Corp. (Mont. 1986), 720 P.2d
1186, 1189, 43 St.Rep. 1124, 1128. Under this test, even the
injured worker who earns more after his injury is eligible
for permanent partial disability if certain conditions are
met. Fermo, 574 P.2d at 254; Hafer, 643 P.2d at 1195-96.
In Fermo, we noted that while claimant was earning more
money after his injury, he also was suffering great pain that
detracted from the speed and efficiency of his work.
Claimant in that case worked as a loader of trucks and had
suffered an injury to his wrist. He was further hindered
because he was forced to compete against younger and
healthier persons for the available work. Fermo, 574 P.2d at
253. We affirmed an award of compensation under 92-703.1,
RCM (1947), (later S 39-71-703(1), MCA) since there had been
a loss of capacity to perform his work and a loss of the
ability to compete in the open labor market.
Respondents in the case at bar contend that because
Sedlack was earning as much, if not more, after the accident,
there was no credible evidence of lost earning capacity thus
restricting her to indemnity benefits found in S S 39-71-705
through 39-71-708, MCA.2 They argue that S 39-71-703, MCA,
was intended to compensate the injured worker for actual,
present loss of earning capacity, while S 39-71-705, MCA, was
intended to compensate injured workers for possible future
loss to their earning capacity. The respondents
misunderstand the statutes and this Court's decisions
concerning them.
In McDanold v. B.N. Transport, Inc. (Mont. 1984), 679
P.2d 1188, 41 St.Rep. 472, a truck driver suffered an ankle
injury that prevented his return to work as a truck driver so
he took a job at a liquor store. We held in that case that
the claim could be filed under either $ 39-71-703, MCA, or
5
S 39-71-705, MCA. McDanold, 679 P.2d at 1191, aff'd 701 P.2d
1001, 42 St.Rep. 940. Such a claim under S 39-71-703, MCA,
is proper so long as the compensation is proportional to the
actual diminution of earning capacity. McDanold, 679 P.2d at
1191. Similarly, in Hafer, we held that an ironworker who
earned $7 an hour at the time he injured his elbow but $10 an
hour when he filed his claim qualified for benefits under
S 39-71-703, MCA. Hafer, 643 P.2d at 1196. The claimant's
work was hampered by an elbow prosthesis, making him less
efficient. This loss of efficiency in the claimant's work
would decrease his chance of finding employment in the open
labor market, according to his employment expert. We held
2 Although this appeal deals with the statutes as they
existed before July, 1987, it should be noted that
S S 39-71-705, -706, and -707, MCA, have been repealed.
that a diminished chance to gain employment translates into a
reduced earning capacity and is sufficient for benefits under
§ 39-71-703, MCA. Hafer, 643 P.2d at 1195-96.
The decision in Dunn, cited by the hearings officer as
authority for his conclusion that one must prove a reduction
in earnings, does not change substantially either Hafer or
McDanold and so is misconstrued by the Workers' Compensation
Court. Dunn specifically acknowledges that a worker may
receive permanent partial disability benefits despite an
increase in pay:
As can be seen from the recent case of
Hafer v. Anaconda Aluminum Co. (Mont.
1984), 684 P.2d 1114, 41 St.Rep. 1403, it
is possible under this test for a worker
to earn more after his injury and still
collect disability benefits for loss of
-
earning capacity. In Hafer, the claimant
earned more after his injury than before
- -
and yet we found that he had suffered a
408 loss of earning capacity. (Emphasis
supplied.)
Dunn, 720 P.2d at 1190.
Dunn is a case in which an injured millworker returned
to work after surgery on her injured knees. She earned $8.38
per hour when she injured her knees in May, 1980. She earned
over $10 per hour at a different job in the mill in 1984. We
reversed an award of benefits under § 39-71-703, MCA, because
we concluded that the entirety of the evidence did not
sustain the Workers' Compensation Court's determination that
Dunn's injury reduced her ability to compete in the labor
pool for jobs. The claimant testified that she felt pain,
but could bear it; her doctor had not restricted her work
activity. Her employment expert testified that she probably
would face a pay cut of up to one-half if she left the mill,
but did not allow for her ability to earn in the mill at any
of seven jobs she was trained for. We held that the
employment expert's refusal to consider her possible earnings
at the mill showed that he had not analyzed her ability to
earn in the entire, open labor market. Dunn, 720 P. 2d at
1190. Therefore, we reversed. Dunn, 720 P.2d at 1191.
Elaine Sedlack has suffered a diminution of her earning
capacity, as defined by Thomas and Shaffer. Although she may
earn more after the injury than before, the recent cases of
Hafer, McDanold, and Dunn are consistent in saying that
factor alone does not disqualify her for benefits under
S 39-71-703, MCA, (1983). When coupled with her severe back
pain, her attending doctor's recommendation that she work no
more than four days in any given week, and the employment
expert's statement that she now qualifies for only 17 percent
of the jobs in the area, it is axiomatic that she has
forfeited not only a portion of her ability to earn in her
current situation but also her ability to find work in the
open labor market as a whole. Section 39-71-104, MCA (1983)
provided for a liberal interpretation of the Workers'
Compensation Act. Therefore, we reverse and remand this case
for more specific findings of fact, appropriate conclusions
of law, and a judgment in keeping with this opinion.
Furthermore, § 39-71-611, MCA (1983), provides that the
Workers' Compensation Court make an award of reasonable
attorney's fees to Sedlack upon a determination that her
injuries are compensable.
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent for the reason that the Workers'
Compensation Court, in my opinion, had before it substantial,
credible evidence to support its conclusion that appellant
suffered no permanent partial disability under S 39-71-703,
MCA. /