*1 any prejudicial George error committed the defendant Cams or that indicates that sucb defendant was not accorded a impartial evidence, being ample believed, fair and trial. There if jury’s my opinion verdict, sustain pursuant conviction, verdict, entered be affirmed. should FRIEDT, SEBASTIAN M. Plaintiff and Appellant, IN- v. Respon- DUSTRIAL ACCIDENT Defendant BOARD, dent. No. 10000. September
Submitted 1959. Decided October 1959. C. J. S. Compensation, See § *2 Whalen, orally, appellant. for Billings, argued Michael J. orally, respondent. Harris, argued Y. for Helena, L.
MR. JUSTICE CASTLES: court, appeal
This is an of the district a sitting jury, a without a in review of workman’s The Board. Board’s determination the Industrial Accident disability. Judg- permanent all for determination denies claim on the district court’s sustaining ment the Board entered was for rehear- of law. Motion findings and conclusions own of fact employer not a is denied. Plan Three is The ing was involved. party. On June injured,
Friedt workman. is occurring lacerated in an accident left was bruised and his hand journeyman is a employment. of his Friedt during the course family, supporting his and wife carpenter, the head a and He earnings from his trade. was on his four minor children four He days off work weeks. and was hospitalized two full disability. He returned to temporary total paid four weeks July Except for sea- pay 9, 1956. prior at his employment continuously employed at his trade he has been layoffs sonal post-injury work. His he returned to date from the pay at full have been scale in his trade employment wages he re- employed. To date has been he area where earning capacity. in his no diminution have indicated ceived as a result testimony has submitted However, appellant the use permanent limitation in he has suffered the accident far, of his while, left index so finger, and other em- scale, partially have been this is full because ployer in- willing handicap appellant overlook sists some apprehensive from the He results accident. consequence future employer generous, not be so and as a appellant argues that he in the prospect wage faces the future. injuries moving heavy saw, were sustained while
slipped caught lacerating hand, bruising left it Friedt’s profundus digital finger. tendon and nerves the left index All other were minor. He has from these. But recovered finger the left index permanently testified that stiffened numb, weakening tip left grip in his hand and ren- dering clumsy attempts nails, grasp awkward when he especially in cold weather.
Essentially, position this claimant takes on is that should be awarded to him not as tested admittedly have to *3 scale, date by permanent been full but as partial tested whatever injury. he suffers from the This was estimated in the final report of the attending surgeon 23, made on November injury, about five “10 per months after the as cent 1956, ’’ compared to entire hand. The record no sub- shows sequent report physician and no either testified for or appellant during hearing before Industrial Accident during hearings Board and Apart two district court. own, only his appellant offered is from the secretary Carpenter’s
financial of the Billings Union area and appellant from a house builder to whom is in debt on the purchase price appellant’s Testimony residence. manager appellant’s
office employer, giving wage figures payroll records, from appellant’s came in over ob- jections. that
Contending fifty his has been reduced per (50%) cent asked the lump Industrial Accident Board district court for a 144 (500) fifty per
sum award based on five hundred weeks cent (50%) permanent disability. lump total Commutation to his appellant’s payment sum also asked to facilitate cumu- lating debts, protect equity long delinquent his in the now monthly payment purchase home, $35 contract and to on compensate attorney.
Lump
only
compensation
sum award need be
if
considered
authorities,
approach
decreed. Under all
to this
our
assumptions
duty
under
that
must be
the usual
official
been
regularly performed,
obeyed,
law
court,
must
appeal presumes no error
the district
and that we
ruling
sustain the
of the district court unless the record before
ruling.
clearly preponderates against
the district court’s
us
1947,
93-1301-7,
33; Vail
sec.
subds. 15
v. Custer
R.C.M.
County,
(and
211),
No stated, is, for 500 weeks dismemberment. claim per (amended upwards original from an pleadings 50 cent per cent) maximum allow of the claim of 33-1/3 Appellant’s 1947, specifications 92-703. able under R.C.M. see. claim dismemberment right elect between question disability. But the dates from before the claim 1947, 92-709, appears first R.C.M. see. amendment to 1957, ruling under Chapter our 7 of Laws section (2d) 106, decided Stuart, 130 Mont. Pac. Spieth v. dating exists 27, 1956, right of election claims June the 1957 amendment. before error summarize into eight specifications of
Appellant’s upheld court should have single district proposition against him. the Board’s determination and reversed his claim *4 argument position This based on for loss constitutes test themselves and not strongly on decisions from capacity. Appellant relies here, controlling we do not consider jurisdictions, other 145 Mont. Company, 127 Packing Empire Shaffer Midland and on v. “The quotes: (2d) 340, 342, from which
211, 213, Pac. earnings or a loss of been test, however, is not whether there loss of rather has there been injury, but income caused labor earn in to earning capacity loss of —a ’’ market. significance of position overlooks But The evi- market.” “in concluding limitation, far has so present appeal shows dence con- district court loss, findings of the suffered no such resulting “However, words, no firm this in these brief except during the him, disabled his industrial accident has following the acci- immediately temporary disability period of dent.” the Shaffer position of
Appellant likewise this overlooks page 215, 259 at at Pac. opinion, supra, page 127 Mont.
342: to fails found that evidence
“But here the district court injuries and employment due to the any inability obtain show to limita- proof of a supports finding. There was the record forty fifty per or muscular movement to the extent tion of above, per ‘10 cent estimated, cent [Friedt’s ‘the rule is that hand’], but the loss of the entire compared necessarily injury is not earning power as the result of loss of disability.’ Jur., Am. bodily functional proportional 284, p. 780.” Compensation, sec. opinion recent Board relies on our respondent 136, 320 Mont. Board, 133 Accident Greenfieldv. Industrial 1958, which, January 31, under (2d) 1000, decided Pac. adversely appel to the disposes of presented,
facts Republic authority Meznarich v. follows lant. Greenfield (2d) 82, followed 78, 53 Pac. 1935, 101 Mont. Co., Coal Board, 52 Mont. County Industrial Accident & v. Lewis Clark opinion, 1916D, 628. The Greenfield 268, L.R.A. 6, 155 Pac. says: page 1003, (2d) page Mont. at supra, 133 money received mean that the these cases think that “We *5 wages earning capacity, is not the sole but it is criterion of showing strong criterion to of be followed the absence * ** [money The wages] is standard. received as not a reliable injury are recognized earnings Shaffer ease the actual after prima ‘ability (Emphasis supplied.) earn’.” evidence to- facie
The and on recognized presumption, Greenfield decision authority presumption of the Shaffer decision describes “prima as facie.”
It between seems to us that a distinction must be maintained earnings wages. example, For a to- income and by tally injured could, permanently disabled workman judicious gaming-, im- by investment or luck at earn “income” measurably beyond wages in possible income to him as concepts trade. any But no test in manner relevant to the compensation legislation underlie workmen’s could prima facie, “earnings” considered, “income” be even Specu- purpose computing industrial accident benefits. rewarding, exciting, proves lation be on occasion it but it industry. therefore, not laid must, We reiterate the formula earning power down in the as tested Shaffer case: earn in labor market.” “loss far, appellant’s wage earnings So labor market us nothing
have not diminished and there is before to con appellant’s apprehensions appellant’s firm result that as a necessarily wage earnings diminish accidental will accident, Until, result of such diminution the future. as a demonstrably imminent, appellant’s actual occurs or becomes determining earn are the most reliable standard for ing capacity.
The district found as a fact that the “Claimant court also any disability entitling has failed to him to show subject sum lump could be the of a award or award any amount,” as a matter concluded clearly preponderate “the not of law that evidence does The Findings Conclusions of the defendant [Board].” not in error. district court was earnings covers appellant’s showing
We evidence note work, returned period July 1956, month he Supplemental through are full scale. April hearing further at a was received Septem- argued Appeal district during court June 1958. earn- Nothing ber record indicates court. ings hearing have the first district diminished since in full paid At all employed times and wherever scale. *6 open in the
Bearing money in mind that received as earning until market is a of labor reliable standard that loss of remembering qualification shown our otherwise and earning capacity must earn the be tested of far not labor here so which loss Compensation quote established, we from Larson’s earnings), Law, post-injury (Impermanence sec. 57.35 p. 17: post-injury
“If employment claimant’s are the sufficiently regular earning to establish his true and continuous disability uncertainty capacity, he assert on the cannot based employment opportunities of future continuance of field.” argued, the
Beckoning appel- back from date the post-injury earnings at full scale over a lant’s have continued years. than three period of more case, present to be
Under facts of the speculation are the income from nor is rele considered not solely wage prospective loss income based vant to. consider apprehension wage and doubt as to his future aon claimant’s scale earned. Under paid Full scale full capacity. 92-830, the In 1947, secs. 92-826 and provisions of B.C.M. jurisdiction appel continuing Board has dustrial Accident appellant’s earnings Should lant’s claim. future, a result of the
market diminish earn or a reduction on June should sustained demonstrably imminent a accident become ings result of such any time future, proper showing, Board must, determine claim to income as the facts then warrant. sustaining
The district court err in did not conclusion the Industrial Accident Board. The affirmed.
MR. CHIEF JUSTICE HARRISON MR. JUSTICES ANGSTMAN and ADAIR concur.
MR. BOTTOMLY, (specially concurring) JUSTICE :
I concur in the result majority reached decision for following reasons: Court, District findings fact, in its pos- found sibility disabling exists to this claimant be aat future date and therein directed that the defendant Indus- trial jurisdiction Accident Board should retain to reconsider any upon showing claim made change of a in circumstances my for the claimant. To mind the district court’s instruction to Board, decision, combined with the mandate this court’s fully disposes of specific this case under the facts and circum- injured provides stances herein and workman with full protection right is his Compensa- under our Workmen’s tion laws. *7 COMPANY,
UNITED STATES FIDELITY AND GUARANTY corporation, Respondent, . Plaintiff v STATE OF MONTANA, Defendant Appellant. No. 9915. Submitted October 1959. Decided November