No. 89-264 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ROSCOE C. COMBS, 

Claimant and Appellant, 

-vsWAGAR LOGGING, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David Lauridsen; Rothe & Lauridsen, Columbia Falls, 

Montana 

For Respondent: 

Rebecca Smith; Smith Law Firm, Helena, Montana 

.!- Submitted on Briefs: Oct. 31, 1989 

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L-3 .-:> , , C3 ..&- Decided: January 5, 1990 .. .. C_s - :; :-: ) J 

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Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal arises from an order by the Workers' Compensation Court of the State of Montana. Claimant appeals. We 

affirm. 

The sole issue on appeal is whether the Workers' Compensation Court's findings of fact regarding claimant's loss of 

earning capacity are supported by substantial credible 

evidence. 

Mr. Rosco Combs suffered a compensable industrial injury 

on July 7, 1986, while working as a knot bumper for Wagar 

Logging. A log struck him, injuring his back. Mr. Combs 

received temporary total disability benefits from July 7, 

1986, through August 29, 1988, when benefits were reduced to 

permanent partial based on a six percent impairment ratins. 

Claimant elected to calculate permanent partial disability 

benefits on an actual loss of earning capacity, pursuant to 5 

39-71-703, MCA (1985) . The Workers' Compensation Court determined that Mr. 

Combs was entitled to 500 weeks of permanent partial disability benefits at the rate of $34.68 per week, pursuant to S 

39-71-703, MCA (1985), which states in pertinent part: 

Compensation for injuries causing partial 

disability. (1) Weekly compensation benefits for 

injury producing partial disability shall be 66 

2/3% of the actual diminution in the worker's 

earning capacity measured in dollars, subject to a 

maximum weekly compensation of one-half the state's 

average weekly wage. 

The Workers' Compensation Court found that Mr. Combs' 

post-injury earning capacity was $3.34 per hour. Comparing 

this to his pre-iniury earning capacity of $4.65 per hour, 

the court determined he had a loss of earning capacity of 

$1.30 per ho,ur, or $52.00 per week. The court then found 
that Mr. Combs was entitled to 2/3 of that loss, or $34.68 

per week. 

On appeal, Mr. Combs contends that the Workers' Compensation Court erred in its findings regarding his earning 

capacity. He claims his pre-injury earning capacity was 

$16.55 per hour, and that the court's finding that his 

pre-injury earning capacity was $4.65 per hour is not supported by substantial credible evidence. 

This Court's standard of review is to determine whether 

substantial credible evidence supports the findings of the 

Workers' Compensation Court. Sharkey v. Atlantic Richfield 

Co. (1989), 777 P.2d 870, 872, 46 St.Rep. 1169, 1171. 

The documented evidence of Mr. Combs' work history 

includes only three brief jobs in the three years prior to 

this injury. In 1983 Mr. Combs worked for Doug Henry as a 

knot bumper, earning $400 total for the year. In 1984 Mr. 

Combs worked as a construction laborer for Hugh Louden, 

earning a total of $638.48. He worked approximately 50 hours 

for Mr. Louden; thus his hourly wage was about $12.96. In 

May 1986 Mr. Combs began working for Wagar Logging. He was 

injured on July 7, 1986. He had worked 414 hours and had 

earned $1925.00; thus his average hourly wage was $4.65. The 

Workers' Compensation Court found that Mr. Combs' work history prior to 1983 had not been documented or presented in a 

consistent manner and could not be considered by the court. 

The court determined the amount of $4.65 to be Mr. Combs' 

pre-injury earning capacity. 

Claimant contends the court should have determined his 

pre-injury earning capacity to be $16.55. He bases this 

assertion on deposition testimony from Mr. Hugh Louden, a 

previous employer. Mr. Louden testified that in 1984 Mr. 

Combs worked for him as a laborer in government construction 

jobs which paid wages of $12.69 per hour, accordinq to 
Davis-Bacon scale. Claimant asserts that in the current 

market these wages would amount to $16.55 per hour, assuminq 

Mr. Combs was at the top of the scale. 

Claimant also relies on testimony from Mr. Charles 

Schloss, a vocational rehabilitation expert, who testified 

that in his opinion Mr. Combs could have been trained to be a 

sawyer . He testified that as a construction worker, Mr. 

Combs would not reach his maximum earning capacity until age 

30. Claimant contends that had he not been injured he would 

have eventually earned $8.00 per hour as an experienced knot 

bumper. Additionally, Mr. Combs asserts that had he not been 

injured he would have been promoted to sawyer, or skidder 

operator, earning a possible $13.75 per hour. 

We have previously stated the following standards in 

determining earning capacity: 

Impairment of earning capacity has been defined as "the permanent diminution of the ability 

to earn money in the future." Additionally, we 

have stated that earning capacity is not only 

determined by a comparison of pre-injury and 

post-injury wages but also by age, occupational 

skills, education, previous health, remaining 

number of productive years and degree of physical 

or mental impairment. (Citations omitted.) 

Hurley v. Dupuis (1988), 759 P.2d 996, 998-99, 45 St-Rep. 

1457, 1461. 

In Hurley, this Court faced a similar issue. In that 

case the Workers' Compensation Court calculated pre-injury 

earning capacity at $12.44 per hour, which was an amount 

claimant earned working one or two weeks on a part time 

basis. This Court reversed, stating: 

Here, although Hurley was thirty years old at 

the time of filing this claim, he has no real 

occupational skills; he dropped out of school in 

the tenth grade and obtained a G.E.D. Due to his 
back injury he is basically removed from any manual 

labor employment. The most important fact is that 

he never maintained a job for an extended period of 

time so that he could establish higher earnings. 

Granted, McIntosh testified that in the Denver 

area, current labor market earnings for concrete 

workers ranged up to $517.20 per week which translates to approximately $13.00 per hour in a 40-hour 

work week. However, due to Hurley's previous work 

history it is extremely unlikely that he would be 

ahle to obtain one of these johs or remain 

employed. 

Hurley, 759 P.2d at 999. 

In Hurley we also noted that the claimant had not been 

able to verify his claimed previous employment with either a 

W-2 or income tax return. 

Although in the present case Mr. Combs attempts to 

distinguish Hurley , we conclude that the facts are analogous 

and the same rationale applies. Mr. Combs is 25 years old, 

single, and has a ninth grade education. Because he i.s 

dyslexic, his ability to read is minimal. He is an unskilled 

laborer. Since dropping out of school, Mr. Combs has worked 

at various construction jobs, logging jobs, and other johs 

requiring manual labor. His work history demonstrates an 

inability to stay at one job for more than a few weeks or 

months. Mr. Combs has filed no tax returns since 1977, and 

he has been unable to document most of his past wages. 

At the hearing, testimony was received by deposition 

from Dr. Trontel, a clinical psychologist who examined Mr. 

Combs. His testimony indicated that Mr. Combs has a low 

level of reliability and responsibility. He has difficulty 

getting along with people and in accepting authority. He 

testified that Mr. Combs would not perform well in any job 

requiring close supervision. Dr. Trontel testified that Mr. 

Combs has been incarcerated over 15 times, indicating severe 
interpersonal difficulties. He also testified that Mr. Combs 

stated that he had been fired several times. 

Although claimant urges that in 1984 he earned wages 

according to Davis-Bacon scale, the testimony from his employer indicated that he only earned these amounts for one to 

two weeks on four or five separate occasions. Mr. Combs also 

earned $12.00 to $14.00 per hour as a truck driver for Mr. 

Louden in 1984, but this was only for 3 or 4 days. 

Claimant's contentions regarding his potential to become 

an experienced knot bumper, or his future potential of becoming a skidder operator, are speculative and unlikely based on 

his previous work history. Mr. Combs has been unable to keep 

a job for more than two months. As stated by Dr. Trontel, he 

is neither persistent nor responsible. Testimony by Dennis 

Wagar, his employer at the time of his injury, demonstrated 

that Mr. Combs was not being trained for the job of skidder 

operator. 

The Workers' Compensation Court considered testimony hy 

claimant, three vocational rehabilitation consultants, Dr. 

Trontel, and Mr. Combs' previous employers, Mr. Hugh Louden 

and Mr. Dennis Wagar. The court considered not only 

pre-injury wages, but also other relevant factors as stated 

in Hurley. However, applying other factors such as claimant's age, skills, and education is unhelpful to claimant in 

this case. As in Hurley, from claimant's previous work 

history, it is unlikely that he would remain employed long 

enough to be trained for a higher-paying position. The 

court's finding that Mr. Combs' pre-injury earning capacity 

of $4.65 per hour was based on documented evidence of claimant's actual wages at the time of injury. We conclude that 

substantial credible evidence supports the finding of the 

Workersi Compensation Court that claimant's pre-injury earn- 
ing capacity was $4.65 per hour. We affirm the Workers' 

Compensation Court on this issue. 

Claimant also contends that the hearing examiner erroneously calculated permanent partial benefits by calculating a 

weekly wage of $186.00 ($1925.00 amount earned, divided by 

414 hours worked multiplied by 40 hours per week) . He contends that the insurer previously based temporary total 

benefits on a weekly wage of $214.30. Claimant does not 

contend that the numbers used by the hearing examiner are 

incorrect; rather he contends the weekly wage determined by 

the hearing examiner is inconsistent with the weekly wage 

determined by the claims examiner. We conclude that the 

hearing examiner did not err in his calculation and affirm 

this portion of the order by the Workers' Compensation Court. 

A£ f irmed. 

We Concur: I// 

/ 

Justices 
Justice William E. Hunt, Sr., dissenting. 

I dissent. 

The majority correctly notes that decisions of the Workers 

Compensation Court must be based on substantial credible evidence 

and yet it makes the assumption that Combs' future work potential 

is speculative and unlikely. Such rationale is itself speculative. 

The majority states that Combs' contentions concerning his 

pre-injury earning capacity are undocumented. Combs, however, did 

present a witness who testified that Combs had worked for him at 

a rate of $12.69 per hour (Combs asserts this rate would be $16.55 

on the current market). Nonetheless, this testimony was ignored 

by the court when establishing Combs' loss of earning capacity. 

As noted in Beck v. Flathead County (Mont. 1988), 749 P.2d 527, 45 

St.Rep. 215, loss of earning capacity is defined as "a loss of 

ability to earn in the open labor market." Certainly, Combs' 

injury has significantly reduced his ability to earn. 

The majority refused to consider the factors set forth in 

I Beck 749 P.2d 527, including age, occupational skills, education, 

previous health, remaining number of productive years and degree 

of physical or mental impairment when arriving at the loss of 

earning capacity amount. Even if the court properly calculated the 

differences between Combs pre-injury and post-injury wages, the 

difference is but one factor to consider among many. See, Beck, 

749 P.2d at 529. 

I would reverse for a recalculation of Combs' pre-injury 

earning capacity. 

Justice John C. Sheehy joins in the foregoing dissent of Justice 

William E. Hunt, Sr. ,, 7 

,,,' / Justice