No. 91-484 and 91-575 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

WAYNE V. KELLY, 

Petitioner and Appellant, 

STATE COMPENSATION MUTUAL 

INSURANCE FUND/BELT PUBLIC SCHOOLS, 

Defendant, Employer and Respondent. 

APPEAL FROM: On Appeal from the Workers1 Compensation Court 

The Honorable Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Antonia P. Marra, Bell & Marra, Great Falls, Montana 

For Respondent: 

..-. William . 0. Bronson, James, Gray & McCafferty, Great 

;'Falls';. Montana . . .. 

.q < i Ti .: yJ;, Submitted on Briefs: May 7, 1992 

Decided: August 13, 1992 

Filed~~,. t &, ,- 

S&=LL W." ,,,dl. 
Justice John Conway Harrison delivered the Opinion of the Court. 

Claimant and appellant, Wayne V. Kelly (Kelly), appeals from 

two judgments of the Workersf compensation Court which ruled in 

favor of the insurer, State compensation Mutual Insurance Fund (the 

State Fund) . We affirm. 

FACTS 

Kelly suffered three injuries arising out of and in the course 

of his employment while working as a bus driver for the Belt School. 

District. Kelly injured his neck on May 14, 1986; his back on 

November 11, 1986; and his neck again on November 21, 1987. At the 

time of Kelly's injuries, his employer was insured under Plan 111 

of the Workers' Compensation Act. 

In addition to driving the Belt Public School bus, Kelly 

participated in various concurrent employment situations. He was 

a vendor/stocker for Frito-Lay and Nabisco food companies, a 

theater proj ectionist and manager, a bagger/carry-out at Malmstrom 

Air Force Base Commissary, and a self-employed wood cutter. As a 

result of his May 1986 injury, Kelly was unable to work ten weeks 

during the summer of 1986. Kelly lost no time from work as a 

result of the November of 1986 injury. Kelly failed to return to 

any of his occupations following the November 21, 1987, injury. 

As a result of the 1987 injury, Kelly received temporary total 

disability benefits from November of 1987 until early June of 1990 

when his benefits were terminated because the Vocational 

Rehabilitation Specialist designated by the State Fund determined 

that Kelly could obtain alternative employment. 

2 
The Workers1 Compensation Court found Kelly permanently 

partially disabled as a result of the November 1987 injury. Kelly 

receives impairment benefits, retroactive to September 1988, for 

his thirty-five percent impairment rating. Kelly also receives 

wage supplements in addition to his impairment award. The Social 

Security Administration also determined that Kelly was eligible for 

social security disability benefits. 

PROCEDURAL HISTORY 

This case is before us on consolidated appeals. First, as a 

result of Kelly's November 21, 1987, injury, the State Fund 

designated a rehabilitation provider to evaluate Kelly's 

rehabilitation options pursuant to 5 39-71-1012, MCA (1987). The 

provider determined that the appropriate option for Kelly was to 

"return to a related occupation suited to the claimant's education 

and marketable skills. Section 39-71-1012 (c) , MCA (1987) . Kelly 

contested this determination and the Department of Labor and 

Industry (the Department) designated a rehabilitation panel to 

review the provider's recommendation. The panel issued a report in 

accord with the provider's initial determination. The Department 

held a hearing, at Kelly's request, to review the panells 

determination. On December 28, 1990, the Department entered its 

Findings of Fact, Conclusions of Law, and Order concurring in the 

panel's findings. Kelly appealed the Department's order to the 

Workersr Compensation Court which affirmed the Department's Order 

on September 12, 1991. Kelly appeals that decision 

Second, Kelly filed a separate petition for a 

to this Court. 

hearing before 
the Workers1 Compensation Court to resolve disputes related to his 

1986 injuries. c his petition also referenced matters concerning 

the 1987 injury. The court held the hearing on March 1, 1991, and 

issued its Findings of Fact, Conclusions of Law, and Order on 

September 12, 1991, denying all of the relief Kelly requested. The 

Workers1 Compensation Court ruled: that Kelly is permanently 

partially disabled; that Kelly reached maximum healing after the 

May of 1986 injury but prior to the November of 1987 injury; that 

the State Fund is not reqired to pay permanent partial disability 

benefits to Kelly for the 1986 injuries; that Kelly is not entitled 

to any lump sums; that Kelly is not entitled to an impairment award 

for the 1986 injuries; and that Kelly is not entitled to a penalty 

or attorney fees. Kelly appeals that decision to this Court. 

ISSUES 

Kelly presents several issues for our review which we rephrase 

as follows: 

1. Whether substantial credible evidence supported the 

Workers' compensation Court's finding that Kelly reached maximum 

healing after the May 1986 injury but prior to the November of 1987 

injury. 

2. Whether substantial credible evidence supports the 

Workers1 Compensation Court's findings that Refly is permanently 

partially disabled, rather than permanently totally disabled, as a 

result of the 1987 injury and that 5 39-7l-lU12(c), MCA (l987), was 

the appropriate rehabilitation option for Kelly. 

3. Whether the Workersf Compensation Court erred in denying 
Kelly's request for the court to assess penalties and award Kelly 

attorney fees? 

STANDARD OF REVIEW 

This Court has set forth the appropriate standard of review in 

appeals from the Workers1 Compensation Court. This Court's 

function is not to reweigh the evidence. our function is to 

determine if the Workersf Compensation Court's findings of fact and 

conclusions of law are supported by substantial credible evidence 

in the record. We will uphold the Workers1 Compensation Court's 

decision if substantial credible evidence supports it. Nelson v. 

Semitool, Inc. (1992), - Mont . - , 829 P.2d 1, 3. 

I. 

Whether substantial credible evidence supported the Workers7 

Compensation Court's finding that Kelly reached maximum healing 

after the May 1986 injury but prior to the November of 1987 injury. 

The underlying question in this appeal is whether Kellyls May 

1986 or his 1987 injury proximately caused his current disability. 

Both the State Fund and Kelly agree that Kelly suffered injuries to 

the cervical area of his spine on two separate occasions. The 

parties disagree as to which injury caused his present disability. 

The State Fund maintains, and the Workers1 Compensation Court 

agreed, that Kelly reached maximum healing after the May 1986 

injury but prior to the November 1987 injury, rendering the 

November 1987 injury the cause of Kelly's present disability. 

Kelly contends that the 1987 injury merely aggravated his May of 

1986 injury, rendering the May 1986 injury the cause of his present 
disability. If the lower court determined that the May 1986 injury 

proximately caused the current disability, Kelly would be entitled 

to more benefits than if the court determined that the 1987 injury 

proximately caused his current disability. Lee v. Group W Cable 

TCI of Montana (1990), 245 Mont. 292, 295, 800 P.2d 702, 704. 

The evidence in this case supports the Workersv Compensation 

Court's decision that Kelly reached maximum healing after the May 

1986 injury, but prior to the 1987 injury, rendering the law in 

effect in 1987 applicable. Kelly missed only ten weeks of work 

following the May 1986 injury. He returned to work at all but one 

of his concurrent employment situations until the 1987 injury, 

nearly one and one-half years later when he discontinued all 

employment. 

Kelly contends that the lower court's finding that he reached 

maximum healing before the 1987 injury was not supported by 

substantial credible evidence. We disagree. The rule in Belton v. 

Carlson Transport (1983) , 202 Mont. 384, 385-86, 658 P.2d 405, 406, 

controls this situation even though Belton dealt primarily with the 

issue of which insurance carrier is at risk when a worker suffers 

more than one compensable work-related injury. Belton's maximum 

healing rule can be applied in cases such as the one at bar to 

determine which injury proximately caused the claimant's current 

disability. Lee, 245 Mont. at 296, 800 P.2d at 705. 

The lower court was presented with medical testimony 

supporting its decision that Kelly reached maximum healing prior to 

the 1987 injury. 
Maximum healing means that following a cornpensable injury 

a claimant has reached a point constituting the end of a 

healing period. It does not mean the person is free of 

symptoms such as pain or objective signs. 

Stangler v. Anderson Mayers (l987), 229 Mont. 251, 255, 746 P.2d 

99, 101, citing Belton v. Carlson Transport (19831, 202 Mont. 384, 

658 P.2d 405. The record before us includes testimony from Dr. 

Verson Kirk and Dr. William Labunetz. After a follow-up visit in 

August 1987, Dr. Kirk reported that Kelly was functioning well and 

had been stable for approximately one year. Additionally, Dr. 

Labunetz, who began treating Kelly in September 1987, reported that 

Kelly was not disabled from driving the Belt Public School bus at 

that time, approximately two months prior to the November 1987 

injury which prevented Kelly from participating in any of his 

employment situations. 

The Workerst Compensation Court found that the doctors? 

testimony indicated that Kelly reached maximum healing following 

the May 1986 injury. Although Kelly missed work for approximately 

ten weeks after the May 1986 injury, he eventually returned to all 

of his occupations with one exception; he discontinued his 

employment with Nabisco. Kelly indicated that he continued to 

experience pain while he engaged in his employment. However, Kelly 

also testified that the 1987 injury was far worse than the May 1986 

injury. Based on the foregoing, we hold that substantial credible 

evidence exists to conclude that Kelly reached maximum healing 

prior to the 1987 injury. Therefore, Kelly's 1987 injury 

proximately caused his present disability and the Workers' 

Compensation Court did not err in so holding. 

7 
Whether substantial credible evidence supports the Workers' 

Compensation Court's findings that Kelly is permanently partially 

disabled, rather than permanently totally disabled, as a result of 

the 1987 injury and that 39-71-1012(c), MCA (1987), was the 

appropriate rehabilitation option for Kelly. 

Kelly contends that the evidence supports a finding of 

permanent total disability rather than permanent partial 

disability. Section 39-71-116(15), MCA (1987), defines permanent 

total disability as: 

[A] condition resulting from injury as defined in this 

chapter, after a worker reaches maximum healing, in which 

a worker is unable to return to work in the worker's job 

pool after exhausting all options set: forth in 39-71- 

1012. 

In order to qualify as permanently totally disabl.ed, Kelly was 

required to show that after exhausting all options in 5 39-71-1012, 

MCA (1987), that he remained unable to return to work in his job 

pool. Kelly failed to meet this burden. 

Section 39-71-1012, MCA (1987), sets forth the appropriate 

rehabilitation options: 

Rehabilitation goal and options. (1) The goal of 

rehabilitation services is to return a disabled worker to 

work, with a minimum of retraining, as soon as possible 

after an injury occurs. 

(2) The first appropriate option among the following 

must be chosen for the worker: 

(a) return to the same position; 

(b) return to a modified position; 

(c) return to a related occupation suited to the 

claimant's education and marketable skills; 
(d) on-the-job training; 

(e) short-term retraining program (less than 24 months) ; 

(f) long-term retraining program (48 months maximum) ; or 

(g) self -employment. 

(3) Whenever possible, employment in a worker's local 

job pool must be considered and selected prior to 

consideration of employment in a worker's statewide job 

pool. 

Section 39-71-1012, MCA (1987). A workerls job pool includes jobs 

available for which a worker is qualified, consistent with the 

worker's age, education, vocational experience and aptitude, and 

physical limitations. Section 39-71-1011(7)(a), MCA (1987). 

After Kelly's 1987 injury, he failed to return to any of his 

prior employment situations. Since the explicit goal of the 

Workers1 Compensation Act in 1987 was to return workers to 

employment situations with minimal retraining, § 39-71-1012, MCA 

(1987), the State Fund designated a rehabilitation specialist to 

evaluate Kelly. The specialist determined that option (c) under 5 

39-71-1012, MCA (l987), was the appropriate option. option (c) 

states that Kelly should return to a related occupation suited to 

his education and marketable skills. This decision was affirmed by 

the appointed rehabilitation panel, the Department of Labor and 

Industry, and the Workerst Compensation Court. Kelly maintains 

this decision was error as he is unable to return to work due to 

pain and inability to perform tasks for more than a couple of hours 

at a time. 

In the instant case, Kelly's doctors, therapists, the 

rehabilitation specialist, and a Rehabilitation Panel determined 

9 
that Kelly could engage in light duty work. Based upon Kelly's age 

education, experience, aptitude, physical capabilities and 

limitations, various job position descriptions were selected as 

those that Kelly could perform. This list included positions as a 

central office operator, a bookkeeper 11, a receptionist and a 

clerk/typist. Kelly's own physician reviewed these job 

descriptions and approved them all except for the clerk/typist 

position, indicating that Kelly should have brief breaks from 

sitting if performing this job. We note that Kelly took a typing 

test at Job Service and during a five minute time span typed fifty 

words-per-minute with two errors. 

Further, the record reflects that due to discrepancies in 

Kelly's reported restrictions and limitations, two private 

investigators monitored Kelly's activities. The private 

investigators observed and video-taped Kelly involved in various 

activities including: driving a car, bending, stooping, unloading 

wood, operating a tractor, and pushing a car by hand. 

Additionally, the private investigators indicated that Kelly made 

numerous trips on rough unkept mountain roads driving a flatbed 

truck loaded with wood. These trips sometimes lasted over several 

hours which Kelly successfully accomplished. After reviewing the 

record, we find that substantial credible evidence supports the 

court's findings. 

111. 

Whether the Workers' Compensation Court erred in denying 

Kelly's request for the court to assess penalties and award Kelly 
attorney fees? 

Kelly asserts that the lower court erred in refusing to impose 

a penalty on the insurer and in failing to award his costs and 

attorney fees. Kelly argues that the State Fund's adjustment of 

his claims was unreasonable. Kelly argues that the State Fund 

acted unreasonably in failing to disburse Kelly's impairment award 

immediately after he was given an impairment rating in 1988. 

However, Kelly failed to present evidence that the State Fund 

unreasonably refused to pay the impairment award. 

Additionally, Kelly contends that the Workers' Compensation 

Court erred in refusing to award his costs and attorney fees. In 

some cases, if the claimant is successful against the insurer, the 

claimant is allowed costs and attorney fees. Sections 39-71-611 

and -612, MCA (1987) . As Kelly was unsuccessful below and on 

appeal, he is not entitled to costs and attorney fees. Substantial 

credible evidence exists supporting the lower court's denial of 

penalties, costs, and attorney fees. Therefore, we cannot overturn 

its decision. Affirmed. 

We Concur: 

Chief Justice 

Justices / /