ALLEN STUKER, Clаimant and Appellant, v. STUKER RANCH, Employer and Respondent, and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Respondent.
No. 91-192.
Supreme Court of Montana
Decided Dec. 6, 1991.
Submitted on briefs Oct. 24, 1991.
251 Mont. 96 | 822 P.2d 105 | 48 St.Rep. 1071
For Respondent: Darcy M. Crum, James, Gray & McCafferty, Great Falls.
JUSTICE HARRISON delivered the Opinion of the Court.
We restate the issues presented by the claimant into a single issue: whether thе 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 а 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 shоrtterm, often parttime jobs, including: driving a grain truck, serving customers as a clerk in a grocery store and filling orders for a company that distributed produсts 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 begаn 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 аnd April, beginning in 1983.
In March 1986 while working for his uncle on the Stuker Ranch, Stuker began to experience pain in his right shoulder after lifting hay bales but continued working anywаy. In early April, 1986, while lifting an irrigation tarp, Stuker felt instant pain in the biceps muscle region of his right arm. Stuker thought he had hyperextended his arm; he treated it with a heating pad and continued to work until April 17, 1986, the end of calving season. Stuker saw Dr. Kelly in late April about the injury; Dr. Kelly consulted with Dr. Luettjohann, who diagnosed Stuker’s problem as a torn biceps muscle. Stuker continued to see Dr. Luettjohann in 1986. A subsequent visit in 1987 and exploratory surgery in January 1987, revealed that Stuker sustained a ruptured biceps muscle.
In February 1987, Stuker worked for two different uncles performing ranching duties. Dr. Luettjohann had advised him he could return to work depending on his comfort level. Accordingly, he worked for
| Year | Income from Roofing | Total Income |
|---|---|---|
| 1980 | $337.00 | $1,376.00 |
| 1981 | $378.00 | $ 404.00 |
| 1982 | none | none |
| 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.
A Workers’ Compensation claimant can choоse 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
Stuker elected to pursue an indemnity award under
The record indicates that in arriving at the 15% disability рercentage the court considered the testimony of the experts, the claimant’s “age education, work experience, pаin 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. The court specifically addressed each of these 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 thrоugh -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 of the actual wage loss, work experience, education, age, pain, and the 12 percent impairment rating оf the whole person assigned by his treating physician.”
Accordingly, the hearings examiner addressed Stuker’s past work history and indicated that his pre-injury work record was extremely limited. This fact made it more difficult to establish the impairment of Stuker’s earning capacity and was adequately discussed. The court correctly refused to speculate what Stuker’s wages would have been had he actively sought employment, especially whеn the 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 “[f]ive approved оccupations he can perform in his labor market.” The court
On appeal, we will not overturn the findings of fact of the Workers’ Compensation Court if there is substantial credible evidence to support them in the record. Grenz v. Fire and Casualty of Connecticut (1991), 250 Mont. 323, 820 P.2d 472, 475, 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, 820 P.2d at 745, 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, we will not disturb the court’s ruling.
Affirmed.
CHIEF JUSTICE TURNAGE and JUSTICES GRAY, TRIEWEILER, and HUNT concur.