251 Mont. 96 | Mont. | 1991
N O . 91-192
IN THE SUPREME COURT OF THE STATE OF MONTANA 1991 ALLEN STUKER, Claimant and Appellant, V. STUKER RANCH, BE'c 6 ssgy Employer and Respondent, and STATE COMPENSATION MUTUAL INSURANCE FUND,
Insurer and Respondent. APPEAL FROM: Worker's Compensation Court, The Honorable Timothy W. Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Donald R. Marble: Marble Law Office, Chester, Montana
For Respondent: Darcy M. Crum; James, Gray & Mccafferty, Great Falls, Montana
Submitted on Briefs: October 2 4 , 1991 Decided: December 6, 1991 Filed: Justice John Conway Harrison delivered the Opinion of the Court.
Claimant Allen Stuker (Stuker) appeals from an order and judgment of the Montana Workers' Compensation Court. The Workers' Compensation Court adopted the findings of fact and conclusions of law of the hearings examiner who deemed Stuker "partially permanently disabled" due to a torn biceps muscle. The court awarded Stuker $122.74 per week for 75 weeks under 5 5 39-71-705 through -708, MCA (1985), along with attorney's fees. We affirm.
We restate the issues presented by the claimant into a single issue: whether the Workers' Compensation Court erred in its findings of fact and conclusions of law.
Stuker is a thirty-six-year-old male who graduated from Havre High School in 1972 and did not pursue additional schooling. He worked short term jobs before entering the Army including in a bakery as a helper, and in a department store as a custodian. In the Army he drove a truck with a special military driver's license. He remained in the Army until 1976 and then returned to Havre. He worked a series of short term, often part time jobs including: driving a grain truck, serving customers as a clerk in a grocery store and filling orders for a company that distributed products such as potato chips. He also worked as a tire repairman for approximately ten months before being laid off. Stuker then became involved in various types of seasonal work including roofing houses and helping on his relatives' ranches. The roofing operation began in 1980 when he submitted roofing bids to general contractors. In addition to roofing, Stuker began working for his uncle on the Stuker Ranch each year during March and A p r i l , b e g i n n i n g i n 1983.
I n March 1986 w h i l e working f o r h i s u n c l e on t h e S t u k e r Ranch, S t u k e r began t o e x p e r i e n c e p a i n i n h i s r i g h t s h o u l d e r a f t e r l i f t i n g hay b a l e s b u t c o n t i n u e d w o r k i n g anyway. I n e a r l y A p r i 1 , 1986, w h i l e l i f t i n g a n i r r i g a t i o n t a r p , S t u k e r f e l t i n s t a n t p a i n i n t h e b i c e p s muscle r e g i o n o f h i s r i g h t a r m . S t u k e r t h o u g h t h e had h y p e r e x t e n d e d h i s arm: h e t r e a t e d it w i t h a h e a t i n g pad, and c o n t i n u e d t o work u n t i l A p r i l 1 7 , 1986, t h e end of c a l v i n g s e a s o n . S t u k e r s a w D r . K e l l y i n l a t e A p r i l a b o u t t h e i n j u r y : D r . K e l l y c o n s u l t e d w i t h D r . L u e t t j o h a n n who d i a g n o s e d S t u k e r ' s problem a s a t o r n b i c e p s muscle. S t u k e r c o n t i n u e d t o see D r . L u e t t j o h a n n i n 1 9 8 6 . A s u b s e q u e n t v i s i t i n 1987 and e x p l o r a t o r y s u r g e r y i n J a n u a r y 1987, r e v e a l e d t h a t s t u k e r s u s t a i n e d a r u p t u r e d biceps muscle.
I n F e b r u a r y 1 9 8 7 , S t u k e r worked f o r two d i f f e r e n t u n c l e s p e r f o r m i n g r a n c h i n g d u t i e s . D r . L u e t t j o h a n n h a d a d v i s e d h i m h e c o u l d r e t u r n t o w o r k d e p e n d i n g o n h i s c o m f o r t l e v e l . A c c o r d i n g l y , h e w o r k e d f o r t h e S t u k e r Ranch i n March and A p r i l 1987 d o i n g t h e n i g h t check on c a t t l e . H e r e h e m o n i t o r e d t h e c a t t l e h e r d and a s s i s t e d w i t h t h e b i r t h i n g o f c a l v e s . L a t e r h e worked f o r h i s u n c l e I r a Hammond f o r t h r e e o r f o u r w e e k s d o i n g d r y f a r m i n g . S t u k e r p l o w e d f i e l d s , p l a n t e d g r a i n and d r o v e a t r u c k and t r a c t o r . I n b o t h 1988 and 1989 S t u k e r a g a i n w o r k e d f o r I r a Hammond f r o m J a n u a r y t o May. S t u k e r a l s o engaged i n s o f t b a l l and f i s h i n g a c t i v i t i e s t h r o u g h o u t t h e y e a r s . S t u k e r d i d n o t a p p l y f o r any j o b s o t h e r t h a n farm j o b s w i t h h i s r e l a t i v e s . H e s t a t e d t h a t h e p r e f e r r e d t o work f o r h i s r e l a t i v e s . The r e c o r d i n d i c a t e s t h e f o l l o w i n g income r e p o r t e d on S t u k e r ' s t a x r e t u r n s :
Year Income from Roofinq Total income 1980 $337.00 $1.376.00 $ .404.00 1981 $378.00 none none 1982 1983 $860.00 $1,511.00 1984 $737.00 $1,683.00 1985 $441.00 $1,373.00
Stuker claims that as a result of the injury, he cannot lift more than twenty pounds on a consistent basis, and that he experiences headaches and numbness in his arm and fingers.
AWorkers' Compensation claimant can choose between two different types of awards. Walker v. Johnson (1978), 180 Mont. 405, 411, 591 P.2d 181, 184. According to the statutory scheme of 1985, Stuker could pursue a loss of earning capacity disability award under § 39-71- 703, MCA (1985), orhecouldpursue an indemnityawardunder § § 39-71- 705 through -708. A disability award is based on the "actual loss of earning capacity resulting from the injury" whereas an indemnity benefit awards compensation for "possible loss of earning capacity in the future." McAlear v. McKee (1976), 171 Mont. 462, 467, 558 P.2d 1134, 1137; citing Jones v. Glac. General Assurance Co. (1965), 145 Mont. 326, 400 P.2d 888. An indemnity benefit is "compensation regardless of earnings to compensate for possible loss of earning capacity in the future." McAlear, 171 Mont. at 467, 558 P.2d at 1137; citing Jones, 145 Mont. 326, 400 P.2d 888.
Stuker elected to pursue an indemnity award under § § 39-71-705 through-708, MCA (1985). Section 39-71-706, MCA (1985), "[plrovides for applying the percentage of disability in determining the number of weeks of compensation under the indemnitv alternative, where injury is less than total loss of a scheduled member, or where the injury
is a 'whole man in jury not scheduled. McDanold v. B. N. Transport, Inc. (1984), 208 Mont. 470, 478, 679 P.2d 1188, 1192. This means that the permanent partial disability percentage is multiplied by the 500 week maximum to arrive at the number of weeks of payments. In the case at bar, the court arrived at a 15% disability percentage. Stuker elected to proceed under § § 39-71-705 through -708, MCA (1985), and since Stuker's injury is not among those specifically listed in 5 39-71-705, MCA (1985), which imposes durational limitations, the correct calculation is as follows: 15% x 500 = 75 weeks. In the case at bar, the Workers' Compensation Court used the proper method to calculate the duration of Mr. Stuker's award.
The record indicates that in arriving at the 15% disability percentage the court considered the testimony of the experts, the claimant's ''age, education, work experience, pain and disability, actual wage loss, and the loss of future earning capacity." Hartman v. National Union Fire Insurance (1989), 236 Mont. 141, 145, 768 P.2d 1380, 1383; citing Flake v. Aetna (1977), 175 Mont. 127, 129, 572 P.2d 907, 909. T h e c o u r t s p e c i f i c a l l y a d d r e s s e d e a c h o f t h e s e factors as evidenced by its own statement in its Findings of Fact and Conclusions of Law:
In calculating a permanent partial disability award under Section 39-71-705 through -708, MCA, this Court has considered the following factors in determining the claimant's loss of earning capacity under that section. These factors include consideration ofthe actual wage loss, work experience, education, age, pain, and the 12 percent impairment rating of the whole person assigned by his treating physician. Accordingly, thehearings examiner addressed Stuker's past work
history and indicated that his pre-injury work record was extremely limited. This factmade it more difficult to establish the impairment of Stuker's earning capacity andwas adequately discussed. The court correctly refused to speculate what Stuker's wages would have been hadhe actively soughtemployment, especiallywhenthe record indicates that Stuker's work efforts were minimal. Stuker's post-injury earning capacity indicates that he will earn more than he did in any of the five years prior to his injury.
The court also considered Dr. Luettjohann's 12% impairment rating to the whole man based on the injury to Stuker's right arm and the pain involved when exceeding his lifting capacity. The court acknowledged that Stuker cannot perform heavy labor but has ' I [ f 3 ive approved occupations he can perform in his labor market." The court stated that exceeding Stuker's lifting capacity will cause him to experience pain which lasts thirty minutes or less. In total, the court made a finding that Stuker Itis not suffering from such pain or disability that would reduce his earnings in the occupations approved as being within his physical capacity." Finally, the court notes that Stuker is a young man of thirty-six and can obtain additional training by his own choice.
On appeal, we will not overturn the findings of fact of the Workers' C o m p e n s a t i o n C o u r t i f t h e r e i s s u b s t a n t i a l c r e d i b l e e v i d e n c e to support them in the record. Grenz v. Fire and Casualty of -, Connecticut (Mont. 1991), - P.2d -,
48 St.Rep. 967, 969; citing Kraft v. Flathead Valley Labor & Contr. (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. The Workers' Compensation Court's conclusions of law will be upheld if the tribunal's interpretation of the law is correct. Grenz, __ P.2d at -, 48 St.Rep. at 969; citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. Clearly in the case at bar, the court supported its findings of fact with substantial credible evidence and it made correct conclusions of law. Therefore, wewill not disturb the court's ruling .
Af f inned. We concur: / December 6 , 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following named: Donald R. Marble
MARBLE LAW OFFICE
P.O. Box 649 Chester, MT 59522 Darcy M. Crum James, Gray & McCafferty P.O. Box 2885 Great Falls, MT 59403-2885
ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA
