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, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The Montana Department of Labor and Industry, Workers1 

Compensation Division, ruled that the statute of limitations barred 

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 of whether the Workers1 

Compensation Court erred in holding that the claimant was 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 

miss work, but she suffered sporadic pain which 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 she was taking medication, Connls pain 

continued to increase and eventually began to interfere with her 
job performance. In early November of 1988, Conn quit work on her 

doctor's advice. 

On November 4, 1988, Conn filed a workers1 compensation claim 

for the second accident, and on December 21 she filed for the 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 doctor advised her to quit work. The Division 

disallowed the waiver reasoning that Conn knew that she was injured 

and that the injury affected her job performance prior to the 

running of the statute of limitations. The Workers1 Compensation 

Court reversed the Division's determination holding that 'Idisability,'' as referred to in the waiver 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 law when 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 Workers1 Compensation 

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 the Workers1 Compensation Court that the present issue is the 
proper definition of I1disabilityI1 as used in § 39-71-601(2), MCA 

(1985), a purely legal question. 

This case falls under the 1985 workers1 compensation statutes. 

See Act approved April 14, 1987, ch. 464, 3 72(2), 1987 Mont. Laws 

1092, 1129 (the 1987 revision of the workers' compensation statutes 

applies to injuries occurring after June 30, 1987). In the 1985 

statute of limitations for workers' compensation claims the 

legislature provided 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, either by 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) (emphasis added). 

The present 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. Thiel v. Taurus Drilling 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) (emphasis added). 

"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) (emphasis added). 

"Permanent total disabilityff 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) (emphasis added). 

"Permanent partial 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. She knew that she had been injured on the job and that the 

injuries affected her ability to work, but she continued to work 

and earn undiminished wages. She had no indication that she could 

not continue to work, though with some inconvenience, until her 
doctor 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-four month 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 statute of 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 character of his latent injury." Bowerman (1983), 207 

Mont. 314, 319, 673 P.2d 476, 479 (enumeration added). The issue 

presented to the Workerst Compensation Court involved only the last 

element of the Bowerman 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. The court correctly decided that issue 

according to the plain meaning of the statute. We will not hold 

the Workerst Compensation Court in error for failing to ritualistically recite the elements of Bowerman. 

The respondent asks this Court to award attorney fees and 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 a 
finding 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: 

b,ab~p t ' ces