NO. 94-486
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
R. KIM WUNDERLICH,
Petitioner and Appellant,
vs.
LUMBERMENS MUTUAL CASUALTY COMPANY,
Respondent/Insurer for
BUTTREY FOOD AND DRUG,
Employer,
and
SKAGGS ALPHA BETA,
Respondent/Insurer for
SKAGGS ALPHA BETA,
Employer.
APPEAL FROM: Workers' Compensation Court, State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard J. Martin; Alexander, Baucus & Linnell,
Great Falls, Montana
For Respondent:
Thomas A. Marra; Marra Wenz, Johnson & Hopkins,
Great Falls, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
R. Kim Wunderlich (Wunderlich) appeals from the findings,
conclusions, and judgment of the Workers' Compensation Court. The
court denied Wunderlich's claim for permanent partial disability
benefits under § 39-71-703, MCA (1985), and his claims for a
penalty and attorney fees based on Lumbermens Mutual Casualty
Company's (Lumbermens) unreasonably delayed acceptance of his
occupational disease claim. We affirm.
The Workers' Compensation Court consolidated Wunderlich's
Workers' Compensation Act and Occupational Disease Act claims for
trial. For purposes of clarity, we address Wunderlich's claim
under § 39-71-703, MCA (1985), first and thereafter address his
occupational disease claims.
1. The 1987 Upper Back Injury Workers' Compensation Claim
Buttrey Food and Drug, formerly known as Skaggs Alpha Beta
(hereafter Buttreys), operated a central warehouse distribution
center in Great Falls, Montana. On June 11, 1987, while employed
by Buttreys, Wunderlich was loading a truck at the distribution
center. A case of tissue weighing approximately eighty pounds
began to fall and, when Wunderlich attempted to catch it, he felt
pain between his shoulders. Wunderlich finished his shift and then
sought chiropractic treatment for his injury, which he described as
"a knot in the middle of my back." The chiropractor diagnosed
Wunderlich's injury as a strain/sprain of the spine with attendant
pain in the muscles and nerves.
Wunderlich's chiropractor authorized Wunderlich's return to
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work without restriction on June 30, 1987. Chiropractic treatments
continued for another month. Buttreys, which was self-insured
under Plan 1 of the Workers' Compensation Act, accepted liability
for Wunderlich's workers' compensation claim for temporary total
disability resulting from his upper back injury.
Wunderlich injured his lower back on three subsequent
occasions in the course of his employment with Buttreys over the
next five years. While receiving chiropractic treatment for those
lower back injuries, which ultimately led to his occupational
disease claim, Wunderlich would make complaints of mid and upper
back soreness to the treating chiropractor.
On October 4, 1993, Wunderlich petitioned the Workers‘
Compensation Court for permanent partial disability benefits as a
result of the June 11, 1987, injury to his upper back. Buttreys
agreed that Wunderlich suffered an injury on June 11, 1987, while
employed at its distribution center, but denied that his disability
arose from that injury. The court denied Wunderlich's claim,
determining that he failed to establish that he suffered a
disability or impairment arising from the 1987 injury and, in any
event, failed to establish a loss of present earning capacity due
to that injury. Wunderlich appeals.
It is well-settled that " [wlorkers' compensation benefits are
determined by the statutes in effect as of the date of injury."
Buckman v. Mont. Deaconess Hospital (1986), 224 Mont. 318, 321, 730
P.2d 380, 382. Accordingly, Wunderlich's claim is governed by the
1985 version of the Workers' Compensation Act.
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"Permanent partial disability" is statutorily defined as an
injury "that results in the actual loss of earnings or earning
capability less than total that exists after the injured worker is
as far restored as the permanent character of the injuries will
permit." Section 39-71-116(12), MCA (1985). Pursuant to 5 39-71-
709, MCA (19851, a claimant can pursue a disability award under §
39-71-703, MCA (19851, or an indemnity award under §§ 39-71-705
through -708, MCA (1985). See also Stuker v. Stuker Ranch (1991),
251 Mont. 96, 98, 822 P.2d 105, 107. The amount of workers'
compensation benefits to which a claimant is entitled is determined
under s 39-71-703(l), MCA (1985), regardless of which award a
claimant elects to pursue. Sections 39-71-703(l), 39-71-705 and
39-71-706, MCA (1985).
Section 39-71-703(l), MCA (1985), provides in pertinent part:
Weekly compensationbenefits for injury producing partial
disability shall be 66 Z/3% of the actual diminution in
the worker's earning capacity measured in dollars . . .
"In order to prevail under [§I 39-71-703, MCA (1985), a claimant
must show an actual diminution in present earning capacity and such
a loss must be measured on the open labor market." Kuenning v. Big
Sky of Montana (1988), 231 Mont. 1, 4, 750 P.2d 1091, 1093
(citation omitted). The general rule is that a claimant bears the
burden of establishing the right to receive compensation.
Kuenninq, 750 P.2d at 1093.
Wunderlich challenges findings of the Workers' Compensation
Court relating to both the existence of a partial disability or
impairment arising from the 1987 injury and his diminution in
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earning capacity as a result of that injury. As set forth above,
he must prove both elements in order to establish entitlement to
workers' compensation benefits. See 55 39-71-703, 39-71-705 and
39-71-706, MCA (1985); Stuker, 822 P.2d at 107-108. Because we
reject Wunderlich's assertion of error relating to diminution in
earning capacity, we need not address his argument regarding the
court's finding that he did not sufficiently establish a partial
disability or impairment resulting from the 1987 injury.
Wunderlich argues that the Workers' Compensation Court erred
in finding that he failed to meet his burden of establishing a loss
in earning capacity because the court failed to give appropriate
consideration to Terry Blackwell's (Blackwell) testimony regarding
Wunderlich's reduced vocational abilities. In essence, Wunderlich
does not challenge the sufficiency of the evidence to support the
Workers' Compensation Court's finding. He argues, instead, that
sufficient evidence exists to support a contrary finding that he
experienced a loss in earning capacity due to the 1987 injury, but
that the court did not properly consider it. His argument ignores
this Court's standard of review regarding decisions of the Workers'
Compensation Court.
We will uphold the Workers' Compensation Court's findings of
fact if they are supported by substantial credible evidence. Smith
v. United Parcel Service (19921, 254 Mont. 71, 75, 835 P.2d 717,
720. Substantial evidence "consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance." Miller
v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261. We
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will not substitute our judgment for that of the trial court when
the issue relates to the credibility of the witnesses or the weight
given to certain evidence. Burns v. Plum Creek Timber Co. (Mont.
1994), 885 P.2d 508, 509, 51 St.Rep. 1175, 1176.
Wunderlich's evidence of diminution in present earning
capacity as a result of his 1987 upper back injury was presented
through Blackwell, a rehabilitation counselor. Blackwell
calculated that Wunderlich's expected earnings in the Great Falls
area amounted to $6.42 an hour, approximately one-half the amount
Wunderlich earned as an employee of Buttreys. Blackwell stated
that he based his calculations on correspondence and medical
records from various physicians and chiropractors treating
Wunderlich, a basic "screening test," a personal interview, and
wage information obtained from the Montana Department of Labor and
Industry (Department).
The court determined that, while Blackwell's testimony
established a diminution in earning capacity, it was insufficient
to establish that the loss of earning capacity resulted from
Wunderlich's 1987 injury. Specifically, the court found that
Blackwell's testimony was based on Wunderlich's overall physical
condition, including his occupational disease; the court also found
that Blackwell was unable to ascertain the extent, if any, to which
the diminution in earning capacity resulted from Wunderlich's 1987
upper back injury.
Blackwell's testimony provides substantial support for the
court's findings. Blackwell testified that he was retained by
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Wunderlich to determine the impact Wunderlich's 1987 upper back
injury had on Wunderlich's employment options in the Great Falls
labor market. He also testified, however, that he was unable to
determine the impact of the 1987 injury as distinct from the impact
of the three subsequent lower back injuries. Blackwell stated that
of the three subsequent lower back injuries, which relate to
Wunderlich's occupational disease claim, Wunderlich's medical
records did not distinguish between those individual injuries and
the 1987 injury. Thus, he could not determine which of
Wunderlich's limitations stemmed directly from the 1987 injury.
Wunderlich argues Blackwell's testimony is clear that some
part of his overall loss of earning capacity was attributable to
the upper back injury; on that basis, he asserts that the court
should have weighed Blackwell's testimony with other probative
evidence and computed a fair amount of permanent partial disability
benefits. As we noted above, however, the weight given to certain
evidence is a matter for the Workers' Compensation Court. Burns,
885 P.2d at 509. We will not substitute our judgment regarding the
appropriate weight to be given Blackwell's testimony for that of
the court.
On the basis of the record before us, we conclude that
substantial credible evidence supports the Workers' Compensation
Court's finding that Wunderlich did not establish his claim of lost
earning capacity resulting from the 1987 injury. We hold,
therefore, that the Workers' Compensation Court did not err in
denying Wunderlich's claim for permanent partial disability
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benefits.
2. The Occupational Disease Claim
As a result of his back injuries, Wunderlich developed a
degenerative disk problem. on July 31, 1992, Wunderlich filed a
claim for occupational disease benefits with Lumbermens, Buttreys'
insurer for Occupational Disease Act claims, presenting three
opinions from medical doctors stating that he suffered from an
occupational disease. Lumbermens denied his claim three times
during the following year. In August 1993, following a
determination by the Department of Labor and Industry that
Wunderlich was entitled to occupational disease benefits,
Lumbermens accepted liability. Wunderlich then demanded a twenty
percent penalty based on Lumbermens' allegedly unreasonable delay
in accepting his claim; Lumbermens refused to pay the penalty.
Wunderlich petitioned the Workers' Compensation Court seeking
both a twenty percent penalty and attorney's fees. He asserted
that the Workers' Compensation Court's broad jurisdiction over
workers' compensation and occupational disease issues authorized it
to award a penalty pursuant to 5 39-71-2907(l) (b), MCA, for an
insurer's unreasonable delay in making occupational disease benefit
payments due a claimant. The Workers' Compensation Court found
that Lumbermens' denial of Wunderlich's underlying occupational
disease claim was unreasonable, but concluded as a matter of law
that it lacked jurisdiction to award the requested penalty. We
review the Workers' Compensation Court's legal conclusions to
determine whether they are correct. Bohmer v. Uninsured Employers'
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Fund (1994), 266 Mont. 289, 291, 880 P.2d 816, 817.
Our resolution of this issue depends on whether the Workers'
Compensation Court correctly interpreted several statutes. The
function of courts in interpreting statutes is to "ascertain and
declare what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been inserted."
Section l-2-101, MCA. If the intention of the legislature can be
determined from the plain meaning of the words used, we may not go
further and apply other means of construction. Murer v. State
Compensation Mut. Ins. (Mont. 1994), 885 P.2d 428, 430, 51 St.Rep.
1145, 1146-47.
Montana's Workers' Compensation Act specifically authorizes
the Workers' Compensation Court to increase by twenty percent the
full amount of benefits due a claimant if an insurer unreasonably
delays or refuses to pay benefits. Section 39-71-2907, MCA.
Montana's Occupational Disease Act, found at Title 39, chapter 72,
MCA, contains no penalty provision. The legislature's inclusion of
the straightforward penalty provision in the Workers' Compensation
Act clearly reflects its intent to permit the Workers' Compensation
Court to assess a penalty against an insurer in disputes under
Title 39, chapter 71, MCA; the legislature's failure to include a
corresponding provision in Title 39, chapter 72, MCA, just as
clearly reflects the legislature's intent not to authorize
assessment of such a penalty under the Occupational Disease Act.
For that reason, we decline to insert a penalty provision into the
Occupational Disease Act where one does not exist.
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Wunderlich asserts that the Workers' Compensation court
possesses broad jurisdiction over the determination of issues under
both the Workers' Compensation Act and the Occupational Disease
Act. On that basis, he argues that the plain language of § 39-71..
2907, MCA, does not limit the award of a penalty to workers'
compensation disputes, but encompasses and authorizes the award of
a penalty in disputes arising under chapter 72. His argument is
without merit.
It is true that 5 39-71-2905, MCA, gives the Workers'
Compensation Court broad jurisdiction regarding the adjudication of
benefits and other disputes under the Workers' Compensation Act
contained in Title 39, chapter 71, MCA. _ -I State,
See also Etc. v.
Hunt (1981), 191 Mont. 514, 519, 625 P.2d 539, 542. The court also
is specifically authorized to award assessments and penalties
expressly provided in chapter 71 for disputes arising under that
chapter. Section 39-71-2905, MCA. Section 39-71-2907, MCA,
contains such a penalty.
In contrast, the Workers' Compensation Court's jurisdiction
under the Occupational Disease Act is much more limited. There,
the court reviews on appeal final determinations by the Department
regarding occupational disease claims. Section 39-72-612, MCA.
The review is statutorily circumscribed and, unlike the
jurisdiction statute in the Workers' Compensation Act, does not
provide express authorization to award assessments and penalties.
Section 39-72-612(2), MCA.
Pursuant to legislative enactment, the Workers' Compensation
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Court's jurisdiction under the Workers' Compensation Act differs
substantially from its jurisdiction under the Occupational Disease
Act. Broad jurisdiction pursuant to the Workers' Compensation Act
simply cannot be superimposed upon, and override, limited
jurisdiction under the Occupational Disease Act. We conclude,
therefore, that the court does not have jurisdiction to assess a s
39-71-2907, MCA, penalty in a dispute arising under the
Occupational Disease Act. Thus, we hold that the Workers'
Compensation Court did not err in denying Wunderlich's petition for
a penalty based on Lumbermens' unreasonable delay in accepting
liability for the occupational disease claim.
Wunderlich's final argument relates to the Workers'
Compensation Court's denial of his motion for attorney's fees
pursuant to § 39-71-612, MCA. He argues that he is entitled to
attorney's fees pursuant to § 39-71-612(l), MCA, if this Court
concludes that he is entitled to a penalty pursuant to 5 39-71-
2907, MCA. Because we have concluded that Wunderlich is not
entitled to a penalty under 5 39-71-2907, MCA, we need not address
his attorney's fees argument. We also need not address the issue,
encompassed in that argument, relating to the interpretation of
attorney's fees as "compensation" under the Workers' Compensation
Act.
Affirmed.
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I We concur:
Chief Justice