No. 87-262
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
JOSEPHINE M. BECK,
Claimant and Appellant,
-vs-
FLATHEAD COUNTY, d / b / a FLATHEAD COUNTY
NURSING HOME, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The on or able ~imothy
Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Trieweiler Law Firm; Terry Trieweiler argued,
Whitefish, Montana
For Respondent:
Warden, Christiansen, Johnson & Berg; Todd A. Hammer
argued, Kalispell, Montana
Submitted: January 4, 1988
Decided: February 10, 1988
Filed:
me 1 o 1988
. .
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Claimant Josephine M. Beck appeals the Workers' Compen-
sation Court order denying her claim for permanent partial
disability benefits for loss of actual earning capacity under
(S 39-71-703, MCA (1985). We vacate the judgment and remand
the matter to the Workers' Compensation Court.
Because we are reversing, we limit our review to the
following issue:
Is the claimant required to prove an actual wage loss
or merely a reduced earning capacity before she qualifies for
permanent partial disability benefits under 5 39-71-703, MCA
(1985)?
Claimant Josephine M. Beck is a forty-three-year-old
mother of four adult children. Claimant Beck is currently
employed by the Flathead County Nursing Home as a nurse's
aide. Claimant's duties as a nurse's aide include feeding,
bathing, and changing patients and assisting patients in and
out of bed. Claimant has been employed as a nurse's aide for
approximately ten years. Previously, she was employed as a
waitress, a sales clerk, an anodizer and a plywood plant
laborer.
On April 14, 1984, claimant Beck injured her neck,
shoulder and arm when a patient, whom she was changing,
grabbed her neck and "jerked." In September 1984, Beck
underwent back surgery, during which her sixth and seventh
cervical vertebrae were fused. Immediately following claim-
ant's injury, defendant accepted liability and paid benefits
of $126.61 per week for 105 weeks. On January 22, 1986,
defendant denied Beck's claim that she sustained a permanent
physical impairment and a permanent reduction in earning
capacity. On March 4, 1986, Beck offered to settle for
$50,010.95 for future "whole person" permanent partial
disability benefits.
At the time of her injury on April 11, 1984, Beck was
earning $4.76 per hour. Claimant returned to work on Febru-
ary 4, 1985. Currently, Beck earns $5.56 per hour. Follow-
ing hearing on May 21, 1986, the hearings examiner found that
Beck was not entitled to permanent partial disability bene-
fits under 39-71-703, MCA (1985), since she was earning
more after her injury. On June 22, 1987, the Workers' Com-
pensation Court adopted the hearings examiner's proposed
findings of fact and conclusions of law.
We note the issue discussed below is identical to the
issue discussed in Sedlack v. Bigfork Convalescent Center,
No. 87-168.
Issue
Is the claimant required to prove an actual wage loss
or merely a reduced earning capacity before she qualifies for
permanent partial disability benefits under § 39-71-703, MCA
(1985)? 1
Claimant contends that the hearings examiner and the
Workers' Compensation Court incorrectly applied § 39-71-703,
MCA (1985), which provides:
Weekly compensation benefits for
injury-producing partial disability
shall be 66-2/3 of the actual diminution
Section 39-71-703, MCA (1985), was amended by the 1987
Legislature. The cited section makes an award of
permanent partial disabililty "66-2/3% of the differ-
ence between the worker's actual wages received at the
time of the injury and the wages the worker is quali-
fied to earn in the worker's job pool, subject to a
maximum compensation rate of one-half the State's
weekly rate at the time of injury."
- - worker's earning capacity mea-
in the
sured in dollars subject to a maximum
weekly compensation of one-half of the
average weekly wage. added. 1
[~n~phasis
Section 39-71-116 (12), MCA, defines permanent partial
disability:
(12) "Permanent Partial Disability"
means a condition resulting from injury
as defined in this chapter that results
in the actual - -of earnings - -
loss or earn-
ing capacity less than total that exists
after the injured worker is as far
restored as the permanent character of
the injuries will permit.... [Empha-
sis added.]
Previously, we 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 4491 451-
Pre-injury and post-injury wages are but one factor to con-
sider when determining earning capacity. Earning capacity
also includes age, occupational skills, education, previous
health, remaining number of productive years and degree of
physical or mental impairment. Thomas, 421 ~ . 2 d at 451.
The correct test for loss of earning capacity is wheth-
er the injury has caused "a loss of ability to earn on the
open labor market." Shaffer v. Midland Empire packing Co,
(1953), 127 Mont. 211, 213-214, 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, 643 P.2d 1192, 1195, appeal after remand, 684 P.2d 1114,
41 St.Rep. 1403; Dunn v. Champion ~nternationalCorp. (~ont.
1986), 720 P.2d 1186, 1189, 43 St.Rep. 1124, 1128. An in-
jured worker who earns more after his injury may be eligible
for workers' compensation benefits if he shows a reduced
earning capacity. Fermo, 574 P.2d at 254; Hafer, 643 P.2d at
1195-1196.
In Fermo, claimant was earning more after his injury.
However, claimant was suffering great pain that detracted
from the speed and efficiency of his work. Claimant was
forced to compete against younger and healthier persons for
the available work. 574 P.2d at 253. Claimant Fermo also
showed loss of capacity to perform his work and a loss of
ability to compete in the labor market. Therefore, we af-
firmed claimant ' s workers ' compensation award under
S 92-703.1, RCM 1947 (later S 39-71-703 (1), MCA) .
In a fashion similar to Fermo, claimant has attempted
to show that although she currently earns more, she has a
reduced earning capacity. Claimant Beck cites her persistent
muscle spasms, numbness, and soreness in her shoulder, back
and neck. Beck also testified that her condition grows worse
by the end of each working day and that she occasionally
misses work due to injury-related headaches. Beck's treating
physician corroborated the above-mentioned testimony. Addi-
tionally, Norman Johnson, a vocational rehabilitative spe-
cialist, testified that the percentage of the Flathead Valley
job market for which Beck qualifies has been greatly reduced.
Judy Mumford, also a vocational rehabilitative specialist,
stated that due to her injury claimant Beck would probably
not be able to continue working indefinitely as a nurse's
aide. In the event that claimant was forced to compete in
the job market, Mumford testified that claimant's earning
capacity would be reduced to minimum wage.
Respondents contend that the Workers' Compensation
Court properly denied appellant's claim based on her election
of remedies. Claimant Beck earned more following her injury.
Therefore, respondents contend that she failed to present
substantial credible evidence of lost earning capacity. As a
result, respondents claim that Beck's remedy is limited to
indemnity benefits under §§ 39-71-705 through -708, MCA
2
(1985).
We held in McDanold v. B.N. Transport (Mont. 1984), 679
P.2d 1188, 1191, 41 St.Rep. 472, 476, that a workers' compen-
sation claim could be filed under either $ 39-71-703, MCA, or
3
39-71-705, MCA. A claim made pursuant to S 39-71-703, MCA,
is proper when the compensation benefits are proportional to
the actual diminution of earning capacity. McDanold, 679
P.2d at 1191. Similarly, in Hafer v. Anaconda Aluminum Co.
(1982), 198 Mont. 105, 643 P.2d 1192, we approved an award of
workers' compensation benefits to a claimant who earned more
following his injury. We held that a claimant is entitled to
compensation benefits upon his showing of reduced earning
capacity, evidenced by a diminished chance to gain employ-
ment. Hafer, 643 P.2d at 1196; § 39-71-703, MCA.
Respondents also argue that substantial credible evi-
dence supports the Workers' Compensation Court's decision
denying appellant's claim of lost earning capacity. Respon-
dents contend that since appellant has remained employed as a
nurse's aide earning more following her injury for approxi-
mately one year, she has not shown reduced earning capacity.
Respondents rely on Dunn v. Champion International Corp.
(Mont. 1986), 720 P.2d 1186, 43 St.Rep. 1124. In Dunn, a
millworker's claim for permanent partial disability benefits
was rejected after evidence was presented that the claimant
received higher wages after her injury and did not prove a
reduced earning capacity. 720 P.2d at 1190-1191.
2 Sections 39-71-705 through -707, MCA, have since been
repealed.
We hold the Workers' Compensation Court erred when it
held that claimant was required to prove actual wage loss to
qualify for permanent partial disability benefits under
.
5 3 9 - 7 1 - 7 0 3 , MCA ( 1 9 8 5 ) We reverse and remand to the Work-
ers' Compensation Court. We instruct the Workers'
Compensation Court to determine whether claimant Beck has
shown substantial credible evidence of a reduced earning
capacity.
We concur:
f hief Justice
Mr. Justice L. C. Gulbrandson, dissenting.
I respectfully dissent for the reason that, although
the Workers' Compensation Court may have made an overly broad
statement when it concluded: " ... Because she is now
earning more than she was at the time of her injury, she is
not entitled to an award of permanent partial disability
benefits for loss of earning capacity under Section
39-71-703, MCA[,I1' there was substantial credible evidence to
support the court's decision.
In my opinion, the court correctly characterized the
case as involving a possible, prospective loss of earning
capacity under § 39-71-705, and noted that the claimant
retains her right to elect and petition for further relief.
I would affirm. , /
/
;,,
Justice
,