No. 89-555 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

ANITA M. CONN, Claimant and Respondent,-VSQUALITY INN, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Appellant.

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Laurence Hubbard, State Comp. Ins. Fund, Helena,Montana For Respondent: Julio K. Morales, Missoula, Montana

Filed: - -- Submitted on Briefs: Jan. 25, 1990 Decided: February 22, 1990Chief Justice J. A. Turnage delivered the Opinion of the Court. The Montana Department of Labor and Industry, Workers1 Compensation Division,ruled thatthestatuteof limitationsbarred respondent Anita M. Connts compensation claim. The Workers1 Compensation Court reversed that decision, and her employer, Quality Inn, and its insurer, the State Compensation Insurance Fund, now appeal. We affirm. The appellants raise the single issue ofwhether theWorkers1 CompensationCourt erred in holding that the claimantwas entitled to an extension of the statute of limitations under 39-71- 601(2), MCA (1985), because she did not become aware of her disability until she actually lost wages. Anita Conn suffered two injuries during her employment as a maid at the Quality Inn in Missoula, Montana. Sometime between January and March of 1986, she tripped over a vacuum cleaner cord injuring her back and hip. On June 22, 1987, she tripped over 

### a bedspread injuring the same area. Neither injury caused Conn to misswork, but shesuffered sporadic painwhich increased following the second injury. Shortly after the second injury, Conn sought medical help. Her condition initially responded to treatment, but in the summer of 1988, her work load escalated, and the pain returned with greater severity. Although shewas taking medication, Connlspain continued to increase and eventually began to interfere with herjobperformance. In early November of 1988, Conn quitwork on her doctor's advice. On November 4, 1988, Conn filed a workers1compensation claim forthe second accident, and onDecember 21 she filed forthe first accident. Because Conn had not filed within the twelve-month statute of limitations, she requested a waiver under 9 39-71- 601(2), MCA (1985), alleging that she was not aware of her disability until her doctoradvised her toquitwork. TheDivision disallowed thewaiver reasoning thatConn knewthat shewas injured and that the injury affected her job performance prior to the running of the statute of limitations. The Workers1Compensation Court reversed the Division's determination holding that 'Idisability,'' as referred to in thewaiver provision, requires a loss of earnings occasioned by the injury. We begin by setting out the applicable law. The reviewing court may reverse an agency's conclusions of lawwhen they are an abuse of discretion. An abuse of discretion results when an agency's interpretation of the law is clearly contrary to the legislative intent. Swan Corp. v. Department of Revenue (Mont. 1988), 755 P.2d 1388, 1390, 45 St.Rep. 998, 1000. This Court applies a de novo standard in reviewing the Workers1Compensation Court's interpretation of the law. Wear v. Buttrey Foods Inc.

(Mont. 1988), 764 P.2d 139, 140, 45 St.Rep. 2063, 2064. We agree with theWorkers1Compensation Court that thepresent issue is theproper definition of I1disabilityI1 as used in § 39-71-601(2), MCA (1985), a purely legal question. Thiscase falls underthe 1985workers1compensationstatutes. SeeAct approved April 14, 1987, ch. 464, 3 72(2), 1987Mont. Laws 1092, 1129 (the1987 revision of theworkers' compensation statutes applies to injuries occurring after June 30, 1987). In the 1985 statute of limitations for workers' compensation claims the legislatureprovided that: (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident,eitherby the claimant or someone legally authorized to act for him in his behalf.

(2) The division may, upon a reasonable showing by the claimant of lack of knowledqe of disability, waive the time requirement up to an additional 24 months. Section 39-71-601,MCA (1985) (emphasisadded). Thepresent question is,what did the legislature intend when it used the term lldisabilityll in 

### 5 39-71-601(2), MCA (1985)? Legislative intent it determined by first looking to the plain meaning of the statutes. Thielv. TaurusDrilling Ltd. (1985)

### , 218 Mont. 201, 205, 710 P.2d 33, 35. The Workers' Compensation Court appropriately looked to the legislature's statutory definition of "disability."A worker is disabled when his ability to enqaqe in gainful employment is diminished as a result of impairment

# . . . . Disability is not a purely medical condition. Disability may be temporary total, permanent total, or permanent partial as defined in 39-71-116. Section 39-71-121, MCA (1985) (emphasisadded). "Temporary total disabilityff means a condition resulting from an injury as defined in this chapter that results in total loss of waqes



# .... Section 39-17-116(19), MCA (1985) (emphasisadded). "Permanenttotaldisabilityff means a condition resulting from injury as defined in this chapter that results in loss of actual earninqs or earninq capability 

# . . . . Section 39-71-116(13), MCA (1985) (emphasisadded). "Permanentpartial disability" means a condition resulting from injury as defined in this chapter that results in the actual loss of earninqs or earninq capability

# . . 

# . . Section 39-71-116(12), MCA (1985) (emphasis added). The plain language of the statutes leaves no doubt that a disability occurs only when the claimant suffers a loss in the ability to engage in gainful employment. The definitive indicator of a loss in ability is a loss in wages, present or future. Conn had no such loss until she quit work on her doctor's advice. Sheknew that shehad been injured on the job and that the injuries affected her ability to work, but she continued to work and earn undiminished wages. Shehad no indication that she could not continue to work, though with some inconvenience, until herdoctor advised her to quit in November of 1988. We agree with the Workers1 Compensation Court that she had no knowledge of her disability until that time and, therefore, is entitled to the twenty-fourmonth extension under 5 39-71-601(2), MCA (1985). The appellants argue that the Workerst Compensation Court erred by not applying the three-part test adopted by this Court in Bowerman 

### v. Employment Security Commission, but we disagree. In Bowerman, we held that in workerst compensation cases of latent injury,the statuteof limitations in 5 39-71-601,MCA (1985) "does not begin to run until the claimant, as a reasonable man, should recognize the (1) nature, (2) seriousness and (3) probable, compensable characterof his latent injury." Bowerman (1983), 207 Mont. 314, 319, 673 P.2d 476, 479 (enumerationadded). The issue presented totheWorkerstCompensationCourt involved only the last element of theBowerman test, the compensable nature of the injury. See Dodd v. Champion Intertl.Corp. (Mont. 1989), 779 P.2d 901, 905, 46 St.Rep. 1649, 1654. Thecourt correctly decided that issue according to the plain meaning of the statute. We will not hold theWorkerstCompensation Court inerror for failingto ritualistically recite the elements of Bowerman. Therespondentasks thisCourt toaward attorney feesand costs

as authorized by 5 39-71-611, MCA (1985), and a twenty percent increase in benefits as authorized by 5 39-71-2907, MCA (1985)

# . This request is premature and is denied. Both statutes require afinding that the claim is compensable. But see Dodd, 779 P.2d at 905, 46 St.Rep. at 1654. We hold only that the claim is not barred by the statute of limitations and make no determination as to whether Conn suffered a compensable injury. Affirmed.

We concur: 

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